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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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