Distinction (law)

Distinction is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must distinguish between combatants and protected civilians.[1] Combatant in this instance means persons entitled to directly participate in hostilities and thus are not afforded immunity from being directly targeted in situations of armed conflict.[2] Protected civilian in this instance means civilians who are enemy nationals or neutral citizens outside of the territory of a belligerent power.[3]

Article 51.3 of Protocol I to the Geneva Conventions explains that "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities". Distinction and proportionality are important factors in assessing military necessity in that the harm caused to protected 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.[4]

  1. ^ Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons. I.C.J. Reports. July 8, 1996. pp. 226, 257.
  2. ^ Crawford, Emily. Lattimer, Mark; Sands, Philippe (eds.). Who is a Civilian? Membership of Opposition Groups and Direct Participation in Hostilities. Hart. p. 20.
  3. ^ "Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.: Article 4 - Definition of protected persons". International Humanitarian Law Databases. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals . . . Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.
  4. ^ Article 52 of Additional Protocol I to the Geneva Conventions provides a widely accepted definition of military objective: "In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make 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" (Source: Moreno-Ocampo 2006, page 5, footnote 11).