| By Heike Spieker |
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Civilians and civilian objects are protected under the laws of armed conflict by the principle of distinction. Under this principle, parties to an armed conflict must always distinguish between civilians and civilian objects on the one hand, and combatants and military targets on the other. The meaning of the term was spelled out in Additional Protocol I of 1977. While a number of States have not ratified Protocol I, the obligation to uphold the principle of distinction is also valid as customary law. The civilian population enjoys immunity insofar as it shall “enjoy general protection against dangers arising from military operations” and “shall not be the object of attack.” The Protocol also prohibits actions whose primary purpose is to spread terror among the civilian population. Civilians retain their protected status “unless and for such time as they take a direct part in hostilities”—civilians who join in fighting forfeit their immunity from attack.
Additional Protocol I also prohibits so-called indiscriminate attacks, thereby obliging each party to an armed conflict under all circumstances to distinguish at all times between combatants and military objectives, and civilians or civilian objects. Examples of indiscriminate attack include carpet bombing or an attack which may be expected to cause collateral damage to civilian persons or objects “which would be excessive in relation to the concrete and direct military advantage anticipated.” Most experts in international law believe that the customary law principle of distinction as a rule applies in both international and non-international armed conflicts. This is supported by the International Committee of the Red Cross Study on Customary International Humanitarian Law. Yet the black letter law is much less explicit in non-international conflict. There is no explicit prohibition of indiscriminate attacks in Additional Protocol II addressing non-international armed conflicts specifically, and the Statute of the International Criminal Court does not criminalize indiscriminate attacks in non-international conflict. Additional Protocol II does not explicitly distinguish between combatants and civilians and does not even mention the term “combatant.” Non-State actors taking a direct part in non-international armed conflict are not granted any right to participate in hostilities and do not enjoy POW status in case of capture. However Protocol II does specify that civilians “shall enjoy general protection against the dangers arising from military operations… unless and for such time as they take a direct part in hostilities.” It explicitly prohibits making civilians as such the object of attack or undertaking acts or threats of violence the primary purpose of which is to spread terror among the civilian population.
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