24/2, 1999, pp. Article 8(2)(b)(iv) criminalizes: 2, May 2006, pp. In some recent conflicts, some belligerent States have not only hired them for activities concerning the use of force within and between them, but some have even employed more PMSC contractors than members of their regular armed forces. We shall call this the “principle of distinction.” The non-democratic nature of representative government in its early days is usually seen to lie in the restricted character of the electoral franchise. The principle of distinction, which requires participants in an armed conflict to differentiate themselves from civilians and which demands that attackers distinguish between lawful targets and civilians, stands at the core of IHL. (c) and whether (a) was "clearly excessive" in relation to (b). Consequently, we find that the legal principle of distinction is not the overall strongest argument to mobilize when trying to stigmatize and ban LAWS. b.   the increasing number of civilians (i.e. MCDONALD Neil & SULLIVAN Scott, “Rational Interpretation in Irrational Times: The Third Geneva Convention and War on Terror”, in. Are protected when they no longer participate: –  if they have fallen into the power of the enemy (See infra Combatants and POWs, III. The IHL of non-international armed conflicts does not even refer explicitly to the concept of combatants, mainly because States do not want to confer on anyone the right to fight government forces. BOLDT Nicky, “Outsourcing War: Private Military Companies and International Humanitarian Law”, BOSCH Shannon, “Private Security Contractors and State Responsibility: Are States Exempt from Responsibility for Violations of Humanitarian Law Perpetrated by Private Security Contractors?”, in, CAMERON Lindsey, “Private Military Companies: Their Status under International Humanitarian Law and Its Impact on their Regulation”, in. Torture and Ethics in the War on Terror”, in International Affairs, Vol. Is everyone who is not a combatant a civilian (or is there an intermediate category of “unlawful combatant”)? Without the principle of distinction, they would be no limitation on the methods of warfare. When asked to explain the principle of distinction between the two, however – the rule that tells us how to assign statements to one category or the other – they often get tongue-tied. 1365-1430. 845-863. Definition. SASSÒLI Marco, “Terrorism and War”, in Journal of International Criminal Justice, Vol. 51-78. 108, pp. The Universal Declaration of Human Rights refers to it in its preamble, as does the Charter of the United Nations. “Civilianization” is not the only phenomenon challenging the principle of distinction. The protection of the civilian population against the effects of hostilities, 7. It must in addition be stressed that self-defence may only be exercised against attacks, not against arrests or the seizure of objects. The essence of the principle is that military attacks should be directed at combatants and military targets, and not 7-32. Distinction is covered by Protocol I (Additional to the Geneva Conventions), Chapter II: "Civilians and Civilian Population". As such, their conduct linked to an armed conflict is governed at least by the rules of IHL criminalizing certain types of conduct. It is therefore held necessary in battlefield to identify the locked target distinctively and direct the attack towards military object only. Furthermore, since the phenomenon of PMSCs goes beyond the traditional notions of the Westphalian State system, and because many of them do not work for States and armed groups, it is equally important to apply IHL directly to PMSCs. WATKIN Kenneth, “The Notion of Combatant, Armed Group, Civilians and Civilian Population in International Armed Conflicts”, in BERUTO Gian Luca (ed. F Distinction: A Social Critique of the Judgement of Taste [Pierre Bourdieu] Die feinen Unterschiede. 5/6, August 2007, pp. SPEROTTO Federico, “Targeted Killings in response to Security Threats: Warfare and Humanitarian Issues”, in Global Jurist, Vol. 1. TOUGAS Marie-Louise, “Commentary on Part I of the Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict”,  International Review of the Red Cross, vol.96; issue 893 (2014), pp.305-358. Weegy: The Law of War principle of Distinction prohibits the use of camouflage by military forces. The principle of distinction requires a party to the conflict to target only other parties to the conflict—a party may not target a civilian or civilian object. The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally. If those objects, transports or persons are not protected against attacks under IHL , that is if they are combatants, civilians directly participating in hostilities or military objectives, guarding or defending them against attacks constitutes direct participation in hostilities and not an act falling under the legal regime of criminal law defence of others. persons who belong to an armed group, but do not fulfil the (collective or individual) requirements for combatant status [See also Fundamentals of IHL, III. WAXMAN Matthew C., “Detention as Targeting: Standards of Certainty and Detention of Suspected Terrorists”, in Columbia Law Review,  2008, Vol. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of: YOO John C. & HO James C., “The Status of Terrorists”, in Virginia Journal of International Law, Vol. Doing so contributes to the effective implementation and enforcement of IHL and creates a sense of ownership among their staff. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv). Have we distinguished between combatants and non-combatants; have we distinguished between military objectives and protected property or places? Which of the 10 Airmen Rules of LoW prohibits the engagement of objects marked with a red crescent? This article offers a critique of Kasher and Yadlin’s proposed revision of the principle of distinction and a defense of Although explicitly concerned with the unity of being, the principle of identity also contains an implicit reference to the distinction and multiplicity of being. 45, 2006, pp. 1105-1164. The protection of the civilian population against the effects of hostilities, 7. Fourth, if the aim of the conflict is “ethnic cleansing”, the parties will logically and of necessity attack civilians and not combatants. Distinction and Proportionality According to Jean Pictet, the Principles which inspire the framework of IHL can be... 2. Nevertheless, in such conflicts as well, a distinction must exist if IHL is to be respected: civilians can and will only be respected if government soldiers and rebel fighters can expect those looking like civilians not to attack them. ROBERTS Adam, “Counter-terrorism, Armed Force and the Laws of War”, in Survival, Vol. In general, this does not impose a prohibition on any specific weapon. The principle of distinction Attacking against military Objectives. WIPPMAN David & EVANGELISTA Matthew (eds), New Wars, New Laws? The “War on Terror” and the Principle of Distinction in International Humanitarian Law 156 in particular whether the practices of some States, notably the US, have led to the emergence of new rules in relation to the principle of distinction. The ‘principle of distinction’ is core to IHL, and regulates who can and cannot be targeted in armed conflict. ), Enforcing International Law Norms against Terrorism, Oxford, Hart, 2004, pp. For this it looks at the principle from two separate, yet correlated, perspectives: 1. 207-228. Civilian in this instance means civilians who are, Rome Statute of the International Criminal Court, International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, https://en.wikipedia.org/w/index.php?title=Distinction_(law)&oldid=939074312, Creative Commons Attribution-ShareAlike License, This page was last edited on 4 February 2020, at 05:01. TRUE. JACKSON Jami Melissa, “The Legality of Assassination of Independent Terrorist Leaders: an Examination of National and International Implications”, in North Carolina Journal of International Law and Commercial Regulation, Vol. By entering this website you agree that we use cookies in order to understand visitor preferences and keep improving our service. ), Terrorisme, victimes et responsabilité pénale internationale, Paris, Calmann-Lévy, 2003, pp. principle of distinction, it does clash with standard contemporary interpreta-tions of the principle, including the seminal ‘double intention’ account championed by Michael Walzer. 15, 2002, pp. The principle of distinction (or discrimination) has been a pillar of any major version of the doctrine of just war, being one of the two principles of jus in bello. Persons as Enemy Belligerents”, US, OLSON Laura, “Guantanamo Habeas Review: Are the D.C. District Court’s Decisions Consistent with IHLInternment Standards?”, in, RONA Gabor, “A Bull in a China Shop: The War on Terror and International Law in the United States”, in, Geneva Academy of International Humanitarian Law and Human Right, “Foreign Fighters under International Law”, in. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives,[3] even when it is known that some civilian deaths or injuries will occur. Third, there is a tendency in an increasing number of asymmetric IACs, and even more in NIACs, for members of armed groups not to distinguish themselves from the civilian population. At the same time, it is difficult for the enemy to distinguish between combatants, PMSC staff who directly participate in hostilities and PMSC staff who do not directly participate in hostilities. SASSÒLI Marco, “When do Medical and Religious Personnel Lose what Protection”, in Collegium 44 (Autumn 2014). The core of principle of distinction is the requirement for soldiers to distinguish between (1) enemy fighters and civilians; and (2)1. NAERT Frederik, “Detention in Peace Operations: the Legal Framework and Main Categories of Detainees”, in Revue de droit militaire et de droit de la guerre, Vol. In many cases, the conduct of PMSCs can be attributed to the contracting State by virtue of the general rules on State responsibility, or the State has at least a due diligence obligation in this respect and must ensure that the PMSCs it contracts act in accordance with IHL. The performance of such functions may nevertheless constitute direct participation in hostilities. 39-61. 516-529. A more fundamental, ethical argument within the debate about LAWS – and one less susceptible to ‘technological fixes’ – should be emphasized instead, namely that life and death decisions on the battlefield should always and … [8] Most of them are not de jure or de facto incorporated into the armed forces of a party and are therefore not combatants but civilians. Which of the 10 Airmen Rules of LoW relies on the 3rd LoW principle - Discrimination or Distinction? The protection of the civilian population against the effects of hostilities, Conduct of Hostilities, III. SZPAK Agnieszka, “The Legal Status of the Guantanamo Bay Detainees - Ten Years Later”, in, TIGROUDJA Hélène, “Quel(s) droit(s) applicable(s) à la ‘guerre au terrorisme’ ?”, in. CAMERON Lindsey, “New Standards for and by Private Military Companies?”, in PETERS A. et al., COCKAYNE James, “The Global Reorganization of Legitimate Violence: Military Entrepreneurs and the Private Face of International Humanitarian Law”, in, COCKAYNE James & SPEERS MEARS Emily, “Private military and Security Companies: a Framework for Regulation”, in, COTTIER Michael, “Elements for Contracting and Regulating Private Security and Military Companies”, in, COWLING M.G., “Outsourcing and the Military: Implications for International Humanitarian Law”, in, FRANCIONI Francesco, WHITE Nigel, MACLOED Sorcha, HOPPE Carsten, LEHNARDT Chia, RYNGAERT Cedric & CHESTERMAN Simon, “Symposium: Private Military Contractors and International Law”, in, GILLARD Emanuela-Chiara, “Business Goes to War”, in, KIDANE Won, “The Status of Private Military Contractors under International Humanitarian Law”, in, KONTOS Alexis P., “Private” Security Guards: Privatized Force and State Responsibility under International Human Rights Law”, in. On all these issues of “civilianization”, the concept of direct participation in hostilities is crucial, because civilians lose their protection against attacks while they so participate and may therefore be treated in this respect like combatants. SCHMITT Michael N., “Asymmetrical Warfare and International Humanitarian Law”, The Air Force Law Review, Vol. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Therefore, autonomous systems … Loss of protection: The concept of direct participation in hostilities and its consequences). Some features of the properties of being a combatant constitute the gist of the distinction and its moral significance. RUYS, Tom, “License to Kill? Distinction and proportionality are important factors in assessing military necessity in that the harm caused to civilians or civilian property must be proportional and not "excessive in relation to the concrete and direct military advantage anticipated" by an attack on a military objective. Indeed, the basic axiom underlying IHL, i.e.
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