Distinction (law)
Encyclopedia
Distinction is a principle under international humanitarian law
governing the legal use of force
in an armed conflict, whereby belligerent
s must distinguish between combatant
s and civilian
s. 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.
(Additional to the Geneva Conventions), Chapter II: "Civilians and Civilian Population". Article 50 defines who is a civilian and what is a civilian population; article 51 describes the protection which should be given to civilian populations; and chapter III regulates the targeting of civilian objects. Article 8(2)(b)(i) of the Rome Statute of the International Criminal Court
also prohibits attack directed against civilians. Not all states have ratified Protocol I or the Rome Statute, but it is an accepted principle of international humanitarian law that the direct targeting of civilians is a breach of the customary laws of war and is binding on all belligerents.
Luis Moreno-Ocampo was the Chief Prosecutor at the International Criminal Court
who investigated allegations of War Crime
s during the 2003 invasion of Iraq. He published an open letter containing his findings; in a section titled "Allegations concerning War Crimes", he elucidates this use of distinction:
International humanitarian law
International humanitarian law , often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the legal corpus that comprises "the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law." It...
governing the legal use of force
Laws of war
The law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...
in an armed conflict, whereby belligerent
Belligerent
A belligerent is an individual, group, country or other entity which acts in a hostile manner, such as engaging in combat. Belligerent comes from Latin, literally meaning "to wage war"...
s must distinguish between combatant
Combatant
A combatant is someone who takes a direct part in the hostilities of an armed conflict. If a combatant follows the law of war, then they are considered a privileged combatant, and upon capture they qualify as a prisoner of war under the Third Geneva Convention...
s and civilian
Civilian
A civilian under international humanitarian law is a person who is not a member of his or her country's armed forces or other militia. Civilians are distinct from combatants. They are afforded a degree of legal protection from the effects of war and military occupation...
s. Distinction and proportionality
Proportionality (law)
Proportionality is a principle in law which covers two distinct concepts. Within municipal law it is used to convey the idea that the punishment of an offender should fit the crime...
are important factors in assessing military necessity
Military necessity
Military necessity, along with distinction, and proportionality, are three important principles of international humanitarian law governing the legal use of force in an armed conflict.-Attacks:...
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.
Codification
Distinction is covered by Protocol IProtocol I
Protocol I is a 1977 amendment protocol to the Geneva Conventions relating to the protection of victims of international armed conflicts. It reaffirms the international laws of the original Geneva Conventions of 1949, but adds clarifications and new provisions to accommodate developments in modern...
(Additional to the Geneva Conventions), Chapter II: "Civilians and Civilian Population". Article 50 defines who is a civilian and what is a civilian population; article 51 describes the protection which should be given to civilian populations; and chapter III regulates the targeting of civilian objects. Article 8(2)(b)(i) of the Rome Statute of the International Criminal Court
Rome Statute of the International Criminal Court
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court . It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of 13 October 2011, 119 states are party to the statute...
also prohibits attack directed against civilians. Not all states have ratified Protocol I or the Rome Statute, but it is an accepted principle of international humanitarian law that the direct targeting of civilians is a breach of the customary laws of war and is binding on all belligerents.
Luis Moreno-Ocampo was the Chief Prosecutor at the International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
who investigated allegations of War Crime
War crime
War crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
s during the 2003 invasion of Iraq. He published an open letter containing his findings; in a section titled "Allegations concerning War Crimes", he elucidates this use of distinction:
See also
- International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons
- Civilian casualty ratioCivilian casualty ratioIn armed conflicts, the civilian casualty ratio is the ratio of civilian casualties to combatant casualties, or total casualties...
Further reading
- Rod Powers Law of Armed Conflict (LOAC)