Information warfare refers to a series of hostile activities carried out by belligerent parties in order to maintain their right to acquire, control and use information. RUBIN Alfred P., Applying the Geneva Conventions: Military Commissions, Armed Conflict, and Al-Qaeda, in The Fletcher Forum of World Affairs, Vol. When civilians directly participate in hostilities (DPIH) they lose their protection against direct attack. TOMAN Jiri, The Status of Al Qaeda/Taliban Detainees Under the Geneva Conventions, in. 4, No. ), Enforcing International Law Norms against Terrorism, Oxford, Hart, 2004, pp. The Conventions define who is a combatant and a military object that can be lawfully attacked. Do not use an Oxford Academic personal account. See the ICRC Treaty Database, available at: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=CN. PFANNER Toni, Asymmetrical Warfare from the Perspective of Humanitarian Law and Humanitarian Action, in, REEVES Shane, WALALACE David.A, The Combatant Status of the 'Little Green Men' and Other Participants in the Ukraine Conflict in. 51(2); ICRC Customary Law Study, above note 12, Rule 6, pp. While combatants are recognized as legitimate objects of target, civilians are legally protected and immune from attacks in armed conflicts. 2428. Are protected because they do not participate: as civilians in the hands of the enemy(See infra Civilian Population, II. 2021; Interpretive Guidance, above note 14, pp. 94, No. 2, 2015, p. 78. The authors are grateful to all the editors and anonymous referees for their useful suggestions and to Eric Jensen, Kubo Mak, Ignacio de la Rasilla del Moral, Jinyuan Su, Nicole Hogg and Nicholas Tsagourias for their helpful comments on earlier drafts of this article. 2 of the Draft Articles on the Effects of Armed Conflicts on Treaties, ILC Yearbook, Vol. BORELLI Silvia, The Treatment of Terrorist Suspects Captured Abroad: Human Rights and Humanitarian Law, in BIANCHI Andrea (ed. Do not use an Oxford Academic personal account. MELZER Nils, The principle of distinction under international humanitarian law, in MELZER Nils, WARD Christopher, Distinction: The Application of the Additional Protocols in the Theatre of War, in. Article 2. Fourth, if the aim of the conflict is ethnic cleansing, the parties will logically and of necessity attack civilians and not combatants. 29-48. 16, No. Finally, if the aim of a party is to change the enemy countrys regime without defeating its army or occupying its territory, it may be tempted to pressure the enemy civilian population into overthrowing its own government. This code is the only text that specifically enumerates obligations of PMSCs. 78, 2002, p. 142Google Scholar. ), DAVID Eric, Respect for the Principle of Distinction in the Kosovo War, in, KLEFFNER Jann K., From Belligerents to Fighters and Civilians Directly Participating in Hostilities: on the Principle of Distinction in Non-International Armed Conflicts One Hundred Years After the Second Hague Peace Conference, in. Chinese textbooks and papers generally hold the view that the term IHL has evolved from the law of war or LOAC, and thus treat them as synonymous; see, for example, , , , 2003, 1 (Wenqi Zhu, What Is International Humanitarian Law?, Wuhan University International Law Review, Vol. 63], Syria, Syrian rebels treat captured Filipino soldiers as 'guests', Case Study, Armed Conflicts in the former Yugoslavia [Para. SZPAK Agnieszka, The Legal Status of the Guantanamo Bay Detainees - Ten Years Later, in, TIGROUDJA Hlne, Quel(s) droit(s) applicable(s) la guerre au terrorisme ?, in. For librarians and administrators, your personal account also provides access to institutional account management. View the institutional accounts that are providing access. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to respect the distinction between combatants and civilians, the States concerned (Egypt, Iraq, Israel and Syria) replied favourably. If your institution is not listed or you cannot sign in to your institutions website, please contact your librarian or administrator. Protecting civilians and civilian objects during armed conflict. MCDONALD Neil & SULLIVAN Scott, Rational Interpretation in Irrational Times: The Third Geneva Convention and War on Terror, in. This chapter examines the principle of distinction in contemporary International Humanitarian Law (IHL). [2] In this respect, we are of the view that if IHL applicable in NIACs fails to define civilians, the latter should be defined by opposition to individuals who engage in acts of hostility. 5557. 1. KRTGEN Yannic, Outsourcing war : private military and security companies under international humanitarian law, in BASSIOUNI Cherif, LIU Hin-Yan, Leashing the Corporate Dogs of War: the Legal Implications of the Modern Private Military Company, in. Furthermore, private military and security companies, whose members are usually not combatants, are increasingly present in conflict areas. PMSCs and major contracting States often stress that PMSCs have only defensive functions. 3, 25. As a result, the issue gives rise to difficult questions. The distinction between medical malpractice and negligence is a subtle one for medical . 140 Jensen, Eric Talbot, Cyber Warfare and Precautions against the Effects of Attacks, Texas Law Review, Vol. 12. In addition, PMSC staff providing security for an object will often not be able to know whether that object constitutes a military objective (which excludes self-defence, because the attack would be lawful and self-defence is only admissible against unlawful attacks) and whether the attackers do not belong to a party (which would not classify resistance against such attackers as direct participation in hostilities, even when the object attacked is a military objective). The prohibition on directing attacks against civilians is also laid down in Protocol II, Amended Protocol II and Protocol III to the Convention on Certain Conventional Weapons and in the Ottawa Convention banning anti-personnel landmines. [8] Most of them are not de jure or de facto incorporated into the armed forces of a party and are therefore not combatants but civilians. persons who are not combatants) directly and indirectly participating in hostilities, (See infra Conduct of Hostilities II. BELLAMY Alex J., No Pain, No Gain? Fundamental Principles: Principle of distinction Article 48 Additional Protocol 1 In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives. The framework for targeting is a concept that encompasses these instruments and has, at its heart, the principle of distinction. The principle of distinction is set out in Article 48 and 52 of Additional Protocol 1 to the Geneva Conventions. 872, 2008. Its connotation and extension are broader than cyber warfare and can include cyber warfare, intelligence warfare, electronic warfare, psychological warfare, etc. SASSLI Marco, When do Medical and Religious Personnel Lose what Protection, in Collegium 44 (Autumn 2014). Parties to an armed conflict are required by the principle of distinction to make a distinction between civilians and combatants, as well as between civilian objects and military objectives, at all times. 19, hors-srie, 2007, pp. 1, April 2009, pp. 1, 2009, only available in Chinese); , , , 2013, 16(02) (Jiang, Shibo, War by Internet Cyber Attack and the Application of the Law of War, Wuhan University International Law Review, Vol. 120 AP I, Art 52(2); ICRC Customary Law Study, above note 12, Rule 8, pp. 27, No. Fundamentals of IHL, III. The Principle of Distinction Authors: Abstract The principle of distinction (or discrimination) has been a pillar of any major version of the doctrine of just war, being one of the two. For more detailed discussion on the terminology, see Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, Cambridge University Press, Cambridge and New York, 2010, pp. This article will discuss the factors and principles used by the appellate courts in making this distinction. TURNS David, The Treatment of Detainees and the Global War on Terror: Selected Legal Issues, in. JACKSON Jami Melissa, The Legality of Assassination of Independent Terrorist Leaders: an Examination of National and International Implications, in North Carolina Journal of International Law and Commercial Regulation, Vol. 52(1); ICRC Customary Law Study, above note 12, Rule 9, pp. 51 Elizabeth Mavropoulou, Targeting in the Cyber Domain: Legal Challenges Arising from the Application of the Principle of Distinction to Cyber Attacks, Journal of Law and Cyber Warfare, Vol. Rules\The Principle of Distinction between Civilians and Combatants. 108, pp. ), International Humanitarian Law and the Changing Technology of War, Martinus Nijhoff, Boston, MA, and Leiden, 2013, p. 256; Heather Harrison Dinniss, Cyber Warfare and the Laws of War, Cambridge University Press, Cambridge, 2012, p. 145. 4, 2013, only available in Chinese); , , , 2018(07) (Zhu, Lixin, Competition for International Rules in Cyberspace under the Combination of Peacetime and Wartime, Information Security and Communications Privacy, No. Furthermore, certain data should fall within the ambit of civilian objects. The purpose of 29 AP I, Art. 179 DoD, above note 4; J. J. Wirtz, The Cyber Pearl Harbor, above note 4; J. J. Wirtz, The Cyber Pearl Harbor Redux, above note 4. Israel, The Targeted Killings Case [Paras 24-40], United States, Use of Armed Drones for Extraterritorial Targeted Killings, General Assembly, The use of drones in counter-terrorism operations, U.S., Lethal Operations against Al-Qaida Leaders, United States of America, The Death of Osama bin Laden, USA, Guantnamo, End of "Active Hostilities" in Afghanistan, Iraq/Syria/UK, Drone Operations against ISIS, United States, Habeas Corpus for Guantanamo Detainees, United States, Closure of Guantanamo Detention Facilities, International Code of Conduct for Private Security Providers, Montreux Document on Private Military and Security Companies, ICRC, International humanitarian law and the challenges of contemporary armed conflicts in 2011. 29-91. If you cannot sign in, please contact your librarian. 145149. 6689. Oxford University Press is a department of the University of Oxford. In non-international armed conflict, organised armed groups constitute the armed forces of a non-state party to the conflict and consist only of individuals whose continuous function is to take a direct part in hostilities (continuous combat function). 35 The principle of distinction provides that only military objectives may be directly targeted in armed conflict. 122 Program on Humanitarian Policy and Conflict Research at Harvard University, HPCR Manual on International Law Applicable to Air and Missile Warfare, Cambridge, MA, 2010, p. 49. 1, 2012Google Scholar, only available in Chinese); , , , 2011 (Yanxin Zhu, The Research on the International Issues of Computer Network Attack, doctoral diss., China University of Political Science and Law, 2011, only available in Chinese); , , , 2014, 27(01) (Tianshu Zhang, The Challenges of Cyber Warfare to International Law: From the Perspective of The Tallinn Manual on the International Law Applicable to Cyber Warfare, Journal of Xi'an Politics Institute of PLA, Vol. principles defined in the 'mini convention' provided in Common Article 3. 151 Michael N. Schmitt, International Cyber Norms: Reflections on the Path Ahead, Netherlands Military Law Review, 17 September 2018, available at: http://puc.overheid.nl/doc/PUC_248171_11; 152 Ibid. 142 L. Zhu, Competition for International Rules in Cyberspace, above note 2, p. 40. 164174, the principle of precaution includes both active precautions in attack (AP I, Art. 13(2); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950), Art. 112 Israel High Court of Justice, Targeted Killings, above note 88, para. 103 Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, Cambridge University Press, Cambridge, 1987, p. 181. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide, This PDF is available to Subscribers Only. This article will analyse the purposes of the distinction principle and display the juxtaposition of its intended purpose to its use in reality. 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 civilians. 9, 2000, p. 17; US Department of the Navy and Department of Homeland Security, The Commander's Handbook on the Law of Naval Operations, July 2007, para. 159 , . 1, 2015, p. 41Google Scholar. Free Online Library: The principle of distinction: probing the limits of its customariness. OCONNELL Mary Ellen, Combatants and the Combat Zone, in University of Richmond Law Review, Vol. 128 ICRC Commentary on APs, above note 123, para. 207-228. 118 AP I, Art. 79-81. 121 DoD, above note 41, p. 210; Charles J. Dunlap, The End of Innocence: Rethinking Non-Combatancy in the Post-Kosovo Era, Strategic Review, Vol. Active precautions in attack mandate (a) [d]oing everything feasible to verify that the targets to be attacked are lawful [and] (b) [t]aking all feasible precautions in the choice of means and methods of attack, with a view to avoidingor, at least, minimizingcollateral damage to civilians and civilian objects. 44/1, 2002, pp. 1, ICRC, Geneva, 2011, p. 52. 3132. Nevertheless, cyber combatants are still obligated to distinguish themselves from civilians. 114 See the description of direct participation in hostilities as potentially intermittent and discontinuous in ICTR, The Prosecutor v. Strugar, Case No. 27 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, p. 266. Indeed, experience shows that, when confronted with such constraints, the population tends to support its government rather than foment rebellion. 125 Marco Sassli, Military Objectives, in Max Planck Encyclopedia of Public International Law, 2015, para. What with distinction means? First, I argue that recognizing the contingent emergence of the principle of distinction in IHL helps to understand why the figure of the militarized refugee appears as an oxy-moron. 106, No. 2, Shanghai Dictionary Publishing House, 2009);, , 2006 (Xinhua Chinese Dictionary, Chongwen Publishing House, 2006); , , 2010 (Etymology of Modern Times, Shanghai Dictionary Publishing House, 2010). The principle of distinction is a central notion under international humanitarian law (IHL). 26, No. The first is that from a practical perspective, the assessment of the damage turns out to be extremely tricky, especially when the consequences are mostly indirect. 2024. 156 AP I, Art. 14 The ICRC Customary Law Study, above note 12, Rule 6, stipulates that civilians are protected against attack unless and for such time as they take a direct part in hostilities. 63 GC III, Art. Indeed the criteria determining when a civilian may be arrested or objects may be requisitioned are too complicated underIHLto enable PMSC staff to determine when they have been met. Some societies use Oxford Academic personal accounts to provide access to their members. At the same time, it is difficult for the enemy to distinguish between combatants, PMSC staff who directly participate in hostilities and PMSC staff who do not directly participate in hostilities. The main problem is that they often benefit from de facto or de jure immunity in the country where they work and that criminal jurisdiction over them in third countries is not as clearly regulated as for members of armed forces and often not backed up by an efficient law enforcement system. The same requirements apply to dual-use objects. Many philosophers, such as Isabelle Thomas-Fogiel, claim to have refuted realism. The challenge of identifying who is fighting also highlights how the fundamental principle of distinction operationalizes LOAC's core purpose: protecting civilians and others hors de combat during conflict. The Organization is based on the principle of . 1, 2010CrossRefGoogle Scholar.
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