Examining the Principle of Distinction in the Conduct of Hostilities

INTRODUCTION:

Tribal invasion, belligerent states and populist upheavals have all played significant roles in state histories from antiquity. The law that aims to control how hostilities are conducted during armed conflicts is known as International Humanitarian Law (IHL). This suggests that parties to an armed conflict must adhere to rules governing the tools and methods of warfare they employ. The purpose of regulating the employment of weapons and tactics by parties to an armed conflict is to create a balance between morally acceptable military action, and the humanitarian goal of alleviating suffering, especially among civilians.

International humanitarian law in a bid to ensure the preservation of lives and properties during armed conflicts, has also outlined certain principles that guide the conduct of hostilities. They include the principle of distinction, proportionality and precaution.

In this article, we shall consider the principle of distinction, one of the principles that guide the conduct of hostilities during times of war as provided in the international sphere.

THE PRINCIPLE OF DISTINCTION IN IHL:

Distinction is necessary during the conduct of hostilities because it prevents the destruction of persons that are not parties to an armed group during conflict. Parties to an armed conflict are required by the principle of distinction to make a distinction between civilians and combatants, as well as between civilian objects and military objectives, at all times. Only combatants or military targets may be the target of an attack; civilians or civilian objects are not permitted targets.

DISTINCTION BETWEEN COMBATANTS AND CIVILIANS

The status of a combatant exists only in armed conflicts of an international character. Armed soldiers who are exclusively assigned to perform medical or religious duties, such as medical professionals and religious personnel, are not considered combatants. The “Combatant’s privilege,” which gives a person the right to directly take part in hostilities on behalf of one of the parties to an international armed conflict, and immunity from prosecution for legitimate acts of war, is a benefit of having combatant status. Provided that the other regulations governing the conduct of hostilities are observed, able-bodied combatants are not shielded from assault and may be the target of an attack.

However, the fact that there is no status of combatant in situations of non-international armed conflicts does not mean that the combatant forces of the parties to such conflicts are civilians. Members of the State armed forces are not shielded from attack in these non-international armed conflicts and may be attacked at any time, provided that the other laws governing the conduct of hostilities are observed.

IHL defines the civilian population as all individuals who are not members and do not serve in the armed forces of one of the parties to a conflict. Any individual whose status as a civilian is in question must be treated as such, unless and until they actively participate in hostilities. However, when they participate in hostilities, civilians do not lose their status as civilians, at that period, people lose their protection from attacks and unintentional harm.

CIVILIANS DIRECTLY PARTICIPATING IN HOSTILITIES

International humanitarian law does not define direct participation. The International Committee Red Cross (ICRC) issued Interpretive Guidance, which provides recommendations concerning the interpretation of international humanitarian law as it relates to the concept of direct participation. The recommendations in the Interpretive Guidance, as well as the accompanying commentary, do not change binding rules of treaty law or customary law of armed conflict, but reflect the ICRC‘s institutional position as to how existing international humanitarian law should be interpreted in light of the circumstances prevailing in contemporary armed conflicts[1]. As earlier discussed, once a civilian engages in hostilities, such a person loses the protection accorded under IHL. For an act to be considered as direct participation in hostilities, the following criteria must conjunctively be present:

a. Threshold of Harm

The act must be likely to adversely affect the military operations or military capacity of a party to the conflict; or alternatively, to inflict death, injury or destruction on persons and objects protected against direct attacks. Example of an act that reaches the requisite threshold of harm is when a civilian destroys military objects; a civilian inflicting wounds on a military personnel, etc.

b. Direct causation

There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part. An instance is where civilians deliberately position themselves to create a physical obstacle to military operations thereby, physically preventing a party to the conflict from conducting its operations.

c. Belligerent nexus

The act of direct participation in hostilities must be specifically designed to directly cause the required threshold of harm, in support of a party to the conflict and to the detriment of another. For example, civilians blocking a road to aid the withdrawal of insurgent forces by delaying the arrival of governmental armed forces.

How long does the loss of protection last?

The protection accorded to Civilians under IHL is expressly provided in Common Article 3 of the 1949 Geneva Conventions which provides “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause” against “violence to life and person, in particular murder of all kinds”. Article 51(3) of the 1977 Additional Protocol I, also provides that civilians shall enjoy protection against the dangers arising from military operations “unless and for such time as they take a direct part in hostilities”. Article 13(3) of the 1977 Additional Protocol II provides that civilians shall enjoy protection against the dangers arising from military operations “unless and for such time as they take a direct part in hostilities”.

The duration of direct participation in hostilities includes the following stages[2]:

  • Measures preparatory to the execution of a specific act that constitutes direct participation in hostilities, for instance, the loading of bombs onto an airplane for a direct attack on military objectives in an area of hostilities, the instruction and the transport of personnel, transport and positioning of weapons.
  • Deployment to the location of the execution of that act, meaning physical displacement with a view of carrying out a specific operation.
  • Execution of that act itself.
  • Return from the location of the execution.

DISTINCTION BETWEEN MILITARY OBJECTIVES AND CIVILIAN OBJECTS

The principle of Distinction also includes the distinction between military objectives and civilian objects. A military objective is an objective which makes an effective contribution to the military action by either its nature, its location, its purpose, or its use[3].

On the other hand, a civilian object is one that either makes no effective contribution to military action, depending on its nature, location, purpose, or use, or whose total or partial destruction, capture or neutralization offers no definite military advantage in the circumstances ruling at the time[4]. Examples of civilian objects include civilian properties and natural environments.

There are instances where a natural object may be used by combatants to achieve military objectives. They can be referred to as dual-use objects. These are objects used for both civilian and military purposes (as can be the case of bridges, roads, or electricity lines, depending on the circumstances). There is no definition of dual-use objects under IHL, as they are not a legal category on their own. Dual-use objects qualify as military objectives when they meet the definition of a military objective provided above, i. e., when they (most often by their use) make an effective contribution to the enemy’s military action and their partial or total destruction, capture or neutralization offers a definite military advantage in the circumstances ruling at the time. However, all feasible precautions must be taken to avoid or at least minimize incidental harm to civilians when attacking them, and such harm must not be excessive in relation to the concrete and direct military advantage anticipated.

CONCLUSION

Rule 7 of the Customary International Humanitarian Law Rules provides for the rule of distinction between combatants and civilians, military objectives, and civilian objects which is generally called the principle of distinction. This principle is necessary to prevent the destruction of non-parties in an armed conflict.

REFERENCE

  1. International Committee of the Red Cross, ‘Direct Participation in Hostilities’ (2022), How does law protect in War? @ Icrc.org. Available at < https://casebook.icrc.org/glossary/direct-participation-hostilities >, accessed on 18th July, 2022.
  2. Humanitarian Leadership Academy, ‘Introduction to International Humanitarian Law’. Kayaconnect.org. Available at < https://kayaconnect.org/local/catalogue/>, accessed on 18th July, 2022.
  3. Article 52 (2) of the 1977 Additional Protocol 1
  4. Refer to Rule 9 of Customary IHL Rule.

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