What Is the Principle of Distinction in International Humanitarian Law

Today, the axiom itself is being challenged by the reality on the ground, particularly by the “growing civilization of armed conflict,” a term that will be discussed in more detail below. If someone who is not a combatant is a civilian, the enemy in many asymmetrical conflicts is entirely civilian. Although in non-international armed conflicts, members of an armed group with a “continuous combat function” should not be considered civilians according to the terminology proposed by the ICRC[3], it is very difficult to distinguish them from the civilian population. In addition, private military and security companies, whose members are usually not combatants, are increasingly present in conflict zones. With all these issues of “civilization”, the concept of direct participation in hostilities is crucial, as civilians lose their protection from attack during their participation and can therefore be treated as combatants in this regard. The ICRC has issued an interpretative directive to clarify this concept[4], but some of its elements have sparked controversy. The distinction is governed by Protocol I (in addition to the Geneva Conventions), Chapter II: “Civilians and Civilians”. Article 50 defines who is a civilian and what a civilian population is; Article 51 describes the protection that should be afforded to the civilian population; and Chapter III regulates referral to civilian objects. Article 8(2)(b)(i) of the Rome Statute of the International Criminal Court also prohibits attacks against civilians.

Not all States have ratified Protocol I or the Rome Statute, but it is a recognized principle of international humanitarian law that the direct targeting of civilians constitutes a violation of the customary law of war and is binding on all belligerents. The principle of distinction, described as “cardinal” and “indefensible”[1], is the cornerstone of international humanitarian law (IHL). You need to know who and what can be targeted and who and what you can`t, and what protection you need to afford, depending on the category a person belongs to. In fact, the basic axiom underlying IHL implies, that is: that even in an armed conflict, the only acceptable action is to weaken the military potential of the enemy, which IHL must define who includes that potential and who can therefore be attacked and participate directly in hostilities, but must not be punished for such involvement under general domestic law. According to the principle of distinction, all persons involved in armed conflict must distinguish between persons so defined (combatants) and civilians. Combatants must be different from all other persons (civilians) (i.e. allow their enemies to identify them) who must not be attacked or take a direct part in hostilities. The obligations under international law of States Parties, territorial States, countries of origin, all other States and PMSCs and their personnel have been reformulated (with recommendations on best practices) in a document accepted by most of the States concerned, the Montreux Document [5]. States parties remain bound by international humanitarian law, even though they outsource certain activities to PMSCs. In many cases, the conduct of PMSCs can be attributed to the State party because of the general rules on State responsibility, or at least the State has a duty of care in this regard and must ensure that the PMSCs it appoints act in accordance with IHL. Apart from the few cases where IHL rules specifically assign state agents[6], it can be argued that international humanitarian law implicitly prohibits states from outsourcing direct participation in hostilities to persons who are not combatants. Given that the phenomenon of PMSCs goes beyond traditional notions of the Westphalian State system and that many of them do not work for States and armed groups, it is equally important to apply IHL directly to PMSCs.

This contributes to the effective implementation and enforcement of IHL and creates a sense of belonging among its employees. If this is not disputed, if a PMSC is an armed group that is a party to a NIAC, there may be other controversial situations that raise the general issue of what constitutes international legal personality and whether companies own it. In addition, through self-regulation, either in codes of conduct or through the provisions of its contract with its client, a PMSC can become a recipient of IHL rules (Common Article 1 may even require a State entrusting a PMSC with a clause requiring compliance with international humanitarian law to be included in the treaty). When it comes to self-regulation, there is an international code of conduct for private security service providers (ICoC). This code is the only text that specifically lists the obligations of PMSCs. The ICoC has established an International Code of Conduct Association (ICoCA) which is a multi-stakeholder mechanism that aims to promote, manage and monitor the implementation of the ICoC. To go beyond soft law, a process is also underway at the UN Human Rights Council, which established an open intergovernmental working group in 2017 to develop an international regulatory framework, the nature of which has not yet been defined, “to protect human rights and ensure accountability for violations and abuses related to the activities of [PMSCs]” [7]. The distinction is a principle of international humanitarian law that governs the lawful use of force in armed conflict, according to which warring parties must distinguish between combatants and civilians.

[1] [2] Distinction and proportionality are important factors in assessing military necessity, as harm to civilians or civilian objects must be proportionate and not “excessive in relation to the concrete and direct military advantage expected from an attack on a military target”. [3] Luis Moreno-Ocampo was the chief prosecutor of the International Criminal Court, investigating allegations of war crimes during the 2003 invasion of Iraq. It published an open letter with its conclusions; In a section entitled “Allegations of war crimes”, he explains this use of the distinction: Article 8 (2) (b) (iv) criminalizes: deliberate launching of an attack knowing that such an attack will accidentally cause loss of life or injury to civilians or damage to civilian objects or extensive damage, in the long term and serious to the natural environment, which would be clearly exaggerated in relation to the concrete and direct overall military advantage expected; Article 8(2)(b)(iv) is based on the principles set out in Article 51(5)(b) of Additional Protocol I of 1977 to the Geneva Conventions of 1949, but limits the prohibition of sanctions to cases which are `clearly` exaggerated ….