The Principle of Distinction beneath International Humanitarian Law

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This article is written by APURVA, a student of the Fairfield Institute of Management and Technology, GGSIPU. This article provides an outline of  “The Principle of Distinction beneath International Humanitarian Law”.

ABSTRACT

During a war, civilians are the most innocent ones. But ‘are they still looked upon as the same and safeguarded during a war?’ Let us emphasize on the contribution of Henry Dunant. He witnessed the Battle of Solferino and was inspired to create the International Committee of Red Cross (ICRC) and instigated the tradition of Geneva Convention. A part of International Law was introduced and that is International Humanitarian Law (IHL) or jus in bello. It works on its fundamental principles and ‘Principle of Distinction’ is one of them. This research article deals with the same.

Keywords: War, Civilians, Geneva Convention, ICRC, International Law, International humanitarian Law, Principle of Distinction

International Humanitarian Law or jus in belloInternational Humanitarian Law or jus in bello

It was initiated back in 1949 and the majority of the sources reside in the four Geneva Conventions. It was introduced as a part of international law. It applies to armed conflicts and imposes limits on the destruction and suffering caused by them. It distinguishes between International and non-International wars, i.e., whether the war is happening within a nation or it is happening between different nations and applies only to International Wars. Nearly every country agreed to be bound by IHL. It aims to protect and restrict. 

It protects civilians, civilian objects, medical and religious military personnel who are not taking part in the fighting or those who are no longer taking part in the fighting, like wounded, shipwrecked and sick combatants and prisoners of wars who ceased to take part.

It restricts the means and methods of warfare that causes any superfluous injury or unnecessary suffering, and any severe or long-term environmental damage and also restricts all means and methods of warfare which fails to discriminate between fighters and civilians.

International Humanitarian Law (IHL) or jus in bello works on the mechanism of its core fundamental principles. They are:

  • Principle of Distinction
  • Prohibition of attacks against those hors de combat
  • Prohibition on the infliction of unnecessary suffering
  • Principle of proportionality
  • Notion of Necessity
  • Principle of Humanity

There are some other agreements as well that prohibits certain weapons and military tactics protecting certain people and goods. They are:

  • 1954- The Convention for the Protection of Cultural Property in the event of armed conflicts and its two protocols.
  • 1972- The Biological Weapons Convention
  • 1980- The Conventional Weapons Convention and its five protocols.
  • 1993- The Chemical Weapons Convention
  • 1997- The Ottawa Convention on anti-personnel mines.
  • 2000- The Optional Protocol to the Convention on the Rights of the Child on the involvement of children is armed conflict.

The Principle of Distinction

Principle of Distinction is a fundamental principle of International Humanitarian Law. This directly targets the fighters. This principle is basically a distinction between civilians and combatants. It is roofed under Protocol I which is an ancillary to the Geneva Conventions. Chapter-II, Article 50 is specified for the explanation of civilians and civilian population, Article 51 describes the protection needed for civilians, and Chapter-III targets the civilian objects. Also, Article 8(2)(b)(i) of the Rome Statute of the International Criminal Court also prohibits attacks against civilians.

The Chief Prosecutor at the International Criminal Court, Luis Moreno-Ocampo investigated allegations of war crimes during the Invasion of Iraq 2003. He issues an open letter comprising his discoveries in a section. The section was titled “Allegation concerning War Crimes”, and he explained the use of Principle of Distinction:

“Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. 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). 

Article 8(2)(b)(iv) criminalizes:
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are “clearly” excessive. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of:
(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was “clearly excessive” in relation to (b).”

— Luis Moreno-Ocampo. 

CONCLUSION

The principle of distinction has been a pillar of jus in bello or International Humanitarian Law. In Michael Walzer’s seminal book Just and Unjust Wars, in its several editions as well as in his recentArguing about War, the principle of distinction is elucidated, interpreted, defended, and developed. The balancing between Humanity and Military necessity is seen in the foundational International Humanitarian Law’s Principle of Distinction. An attack cannot be launched if it is anticipated to cause loss of civilian lives, or injury to them, or damage to civilian objects. Parties to the armed conflicts need to distinguish between civilians and militants all the time or any indiscriminate attack may result in violation of jus in bello and will be considered as a grave breach. But, IHL applies just to International Conflicts, and not to non-International conflicts, so it recognises first.

 Hence, by these texts we tend to learn that the principle of distinction could be a bedrock of International Humanitarian Law, the law that is applicable on the bottom of humanitarian reasons to limit the result of armed conflict. Henry has gifted the civilians a security from wars. Therefore, it safeguards civilians and civilian objects during a war. We tend to additionally learn that the violation of the principle could be a grave breach. 

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