Basic Principles of International Humanitarian Law : Principle of Distinction (1)
International humanitarian law (IHL), otherwise known as the law of armed conflict or the law of war, is a branch of public international law that regulates the conduct of armed conflicts. Its primary purpose is to limit the effects of war by protecting persons who are not or are no longer participating in hostilities (such as civilians, wounded soldiers, prisoners of war, and medical personnel) and by restricting the means and methods of warfare. IHL applies in both international armed conflicts (between states) and non-international armed conflicts (between a state and non-state armed groups or between such groups), though the scope of rules may differ.
The basic principles of IHL are fundamental in armed conflict. They strike a balance between military necessity (legitimate military goals) and humanity (the obligation to minimize suffering and protect human dignity). The first principle that will be considered is the principle of distinction.
1. Principle of Distinction
The principle of distinction requires parties to an armed conflict to differentiate at all times between civilians (and civilian objects) and combatants (and military objectives). Attacks may only be directed against the latter; civilians and civilian objects must never be the object of attack. This is often described as one of the "cardinal principles" of IHL.
Statutory Authority
Pursuant to Article 48 Additional Protocol I (1977) :
"In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."
Article 51(2): The civilian population as such, as well as individual civilians, shall not be the object of attack.
Article 52(2): Defines a military objective as one that "by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage."
This principle is also rooted in customary law (ICRC Customary IHL Study, Rule 1) and applies in both international and non-international armed conflicts. Indiscriminate attacks (those not directed at a specific military objective, or whose effects cannot be limited) are prohibited under Article 51(4) and (5).
Judicial Authority
The International Court of Justice (ICJ) in its Legality of the Threat or Use of Nuclear Weapons Advisory Opinion (1996) identified distinction as a "cardinal principle" of IHL, forming part of the fabric of humanitarian law and applying to all weapons and methods of warfare.
Furthermore, the International Criminal Tribunal for the former Yugoslavia (ICTY) in Prosecutor v. Galić (2003) convicted the accused for crimes involving indiscriminate attacks on civilians in Sarajevo, affirming that the prohibition on attacking the civilian population as such is a fundamental rule of customary IHL applicable in all conflicts. Similarly, in Prosecutor v. Strugar (2005), the ICTY addressed shelling of Dubrovnik, reinforcing the duty to distinguish.
The principle extends to prohibiting attacks on persons hors de combat (out of the fight, such as the wounded, surrendering soldiers, or detainees).
In conclusion, the cardinal principle of distinction in armed conflict advocates the protection of civilian and civilian objects during the conduct of the armed conflict.
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