principle of distinction article
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principle of distinction article
Some societies use Oxford Academic personal accounts to provide access to their members. ), Issues in International Law and Military Operations, in International Law Studies, Vol. 117 The present authors try not to use the term objects here because the question about whether there are non-human targets which are not objects will be discussed in the following paragraphs. Rule 1. 13 Heather Harrison Dinniss, Participants in ConflictCyber Warriors, Patriotic Hackers and the Laws of War, in Dan Saxon (ed. BOGAR Thomas, Unlawful Combatant or Innocent Civilian? Protecting civilians and civilian objects during armed conflict. (ed. WEDGWOOD Ruth, Responding to Terrorism: the Strikes against Bin Laden, in The Yale Journal of International Law, Vol. The Principle of Distinction between Civilian Objects and Military Objectives Related Practice Quick navigation Rule 7. 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. 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. 149 ICRC Commentary on APs, above note 123, paras 2007, 2008. 5, 2012Google Scholar, only available in Chinese); , ., , 2012, 25(01) (Li, Li and Lu, Xiaoying, A Brief Analysis of the Problems Faced by the Law of Armed Conflict under the Condition of Information-Based Warfare, Journal of Xi'an Politics Institute of PLA, Vol. Copyright The Author(s), 2021. 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. The . Instead of bringing order to war and saving lives, the Principle of Distinction precludes the rule of law and endangers the lives of those whom it was designed to protect. Furthermore, certain data should fall within the ambit of civilian objects. The ICRC has called on parties to both international and non-international armed conflicts to respect the distinction between combatants and civilians. 23 AALCO, Verbatim Record of Discussions: Fifty-Fourth Annual Session, AALCO/54/BEIJING/2015/VR, Beijing, 1317 April 2015. This article will analyse the purposes of the distinction principle and display the juxtaposition of its intended purpose to its use in reality. Content may require purchase if you do not have access. 31, No. 1-2, No. 28, No. 1924. 42, No. TURNS David, The Treatment of Detainees and the Global War on Terror: Selected Legal Issues, in. 24 Xinmin Ma, What Kind of Internet Order Do We Need?,Chinese Journal of International Law, Vol. One must know who and what may be targeted and who and what may not, and what protection to afford depending on the category which a person belongs to. 2021; Interpretive Guidance, above note 14, pp. See also Marco Sassli, Antoine Bouvier and Anne Quintin, How Does Law Protect in War?, 3rd ed., Vol. On contemporary battlefields, it is becoming increasingly difficult to make a clear distinction between those individuals and objects that are engaged in fighting, and those who are not. 47 AP I, Art. 129 Robert Kolb and Richard Hyde, An Introduction to the International Law of Armed Conflicts, Hart Publishing, Oxford, 2008, pp. Some think they have essentially the same meaning and can be used interchangeably, e.g. ; Arun Mohan Sukumar, The UN GGE Failed. This rule is sometimes expressed in other terms, in particular as the principle of distinction between combatants and non-combatants, whereby civilians who do not take a direct part in hostilities are included in the category of non-combatants. Indeed, experience shows that, when confronted with such constraints, the population tends to support its government rather than foment rebellion. 4, 2021, pp. This research is supported by the Major Projects of National Social Science Fund of China (Grant No. 52(1); ICRC Customary Law Study, above note 12, Rule 9, pp. 147 Dinstein, Yoram, Legitimate Military Objectives under the Current Jus in Bello, International Law Studies, Vol. 25, No. b. the increasing number of civilians (i.e. 37, No. Doing so contributes to the effective implementation and enforcement of IHL and creates a sense of ownership among their staff. Weighing in on these debates, we argue that despite the potential technical challenges and uncertainties, the principle of distinction should be applied to cyberspace. In many cases, the conduct of PMSCs can be attributed to the contracting State by virtue of the general rules on State responsibility, or the State has at least a due diligence obligation in this respect and must ensure that the PMSCs it contracts act in accordance withIHL. 150 See, for example, Kubo Mak, Military Objectives 2.0: The Case for Interpreting Computer Data as Objects under International Humanitarian Law, Israel Law Review, Vol. ), Enforcing International Law Norms against Terrorism, Oxford, Hart, 2004, pp. Therefore, they are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. 250278. 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. TOUGAS Marie-Louise, Commentary on Part I of the Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict, International Review of the Red Cross, vol.96; issue 893 (2014), pp.305-358. MCDONALD Neil & SULLIVAN Scott, Rational Interpretation in Irrational Times: The Third Geneva Convention and War on Terror, in. 156 AP I, Art. TOMAN Jiri, The Status of Al Qaeda/Taliban Detainees Under the Geneva Conventions, in. Published online by Cambridge University Press: 5, No. A lawful object of attack is an object that by way of its nature, location, purpose or use, makes an effective contribution to the action of your enemy, and the neutralisation, destruction or capture would provide you with a military advantage. ), War by Internet Cyber Attack and the Application of the Law of War, Wuhan University International Law Review, Competition for International Rules in Cyberspace under the Combination of Peacetime and Wartime, Information Security and Communications Privacy, The Research Progress of the Law of Armed Conflict and the Issues Needing Attention, A Brief Analysis of the Problems Faced by the Law of Armed Conflict under the Condition of Information-Based Warfare, Journal of Xi'an Politics Institute of PLA, Get Off My Cloud: Cyber Warfare, International Humanitarian Law, and the Protection of Civilians, Hacking into International Humanitarian Law: The Principles of Distinction and Neutrality in the Age of Cyber Warfare, Cyber Warfare: Applying the Principle of Distinction in an Interconnected Space, Analysis of the Challenges to Contemporary Armed Conflict Law, Cyber Warfare and Precautions against the Effects of Attacks, Legitimate Military Objectives under the Current, The Nature of Objects: Targeting Networks and the Challenge of Defining Cyber Military Objectives, The Principle of Distinction in Virtual War: Restraints and Precautionary Measures under International Humanitarian Law, www.icrc.org/eng/assets/files/other/law1_final.pdf, https://international-review.icrc.org/sites/default/files/irrc-886-zhang.pdf, www.gov.uk/government/publications/the-applicability-of-the-laws-of-war-to-cyberspace-exploration-and-contention, https://content.govdelivery.com/accounts/USDOD/bulletins/571813, https://international-review.icrc.org/sites/default/files/irrc-886-kellenberger-spoerri.pdf, www.un.org/ga/search/view_doc.asp?symbol=A/70/174, www.justsecurity.org/42768/international-cyber-law-politicized-gges-failure-advance-cyber-norms/, https://lawfareblog.com/un-gge-failed-international-law-cyberspace-doomed-well, www.cfr.org/blog/united-nations-doubles-its-workload-cyber-norms-and-not-everyone-pleased, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1, https://cyberlaw.ccdcoe.org/wiki/Cyber_attacks_against_Estonia_(2007), https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=CN, www.un.org/disarmament/wp-content/uploads/2019/09/china-submissions-oewg-en.pdf, www.aalco.int/Final%20Verbatim%202019.pdf, www.scio.gov.cn/zfbps/32832/Document/1660325/1660325.htm, www.scio.gov.cn/zfbps/ndhf/2015/Document/1435159/1435159.htm, www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-elevation-cyber-command/, https://cyberlaw.ccdcoe.org/wiki/Stuxnet_(2010), www.lockheedmartin.com/content/dam/lockheed-martin/rms/documents/cyber/Gaining_the_Advantage_Cyber_Kill_Chain.pdf, https://ccdcoe.org/uploads/2018/10/Ziolkowski_Stuxnet2012-LegalConsiderations.pdf, https://puc.overheid.nl/doc/PUC_248377_11/1, www.icrc.org/zh/doc/assets/files/other/mt_070116_prot1_c.pdf, www.weforum.org/agenda/2019/01/these-are-the-global-priorities-and-risks-for-the-future-according-to-antonio-guterres/. 5, 2018; US Department of Defense (DoD), Remarks by Secretary Panetta on Cybersecurity to the Business Executives for National Security, New York City, 12 October 2012, available at: https://content.govdelivery.com/accounts/USDOD/bulletins/571813. Oxford University Press is a department of the University of Oxford. The principle of distinction between civilians and combatants was first set forth in the St. Petersburg Declaration, which states that the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy. If you cannot sign in, please contact your librarian. 1. 128 ICRC Commentary on APs, above note 123, para. (Log in options will check for institutional or personal access. It will also examine combatant as a legitimate target without necessarily looking at the issue of combatant status. See ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 32IC/15/11, October 2015 (ICRC Challenges Report 2015), p. 41. Access to content on Oxford Academic is often provided through institutional subscriptions and purchases. Do not use an Oxford Academic personal account. 4, No. This chapter first distinguishes and defines the notions of civilian, member of the armed forces and combatant under the law governing both in international and non-international armed conflict, clarifies when civilians can be regarded as directly participating in hostilities entailing loss of protection against direct attack, and also examines various aspects of the duty to avoid "collateral damage", which is inherent in the principle of distinction. When civilians directly participate in hostilities (DPIH) they lose their protection against direct attack. 27 article 48 of ap i stipulates that parties to a conflict shall at all Fundamentals of IHL, III. 96, No. 381, 383CrossRefGoogle Scholar. See ibid. Article 13(2) of Additional Protocol II prohibits making the civilian population as such, as well as individual civilians, the object of attack. 45 AP I, Art. 1924. Despite the critical approach of this article, it will ultimately . 52(2); ICRC Customary Law Study, above note 12, Rule 7, pp. 146 Tallinn Manual 2.0, above note 31, p. 448. Fourth, if the aim of the conflict is ethnic cleansing, the parties will logically and of necessity attack civilians and not combatants. Select your institution from the list provided, which will take you to your institution's website to sign in. 69 See Denise Bindschedler-Robert, A Reconsideration of the Law of Armed Conflicts, in The Law of Armed Conflicts: Report of the Conference on Contemporary Problems of the Law of Armed Conflict, 1971, p. 40; Katherine Del Mar, The Requirement of Belonging under International Humanitarian Law, European Journal of International Law, Vol. principles defined in the 'mini convention' provided in Common Article 3. "useRatesEcommerce": false, 301304. Under the Statute of the International Criminal Court, intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities constitutes a war crime in non-international armed conflicts. "useSa": true 123 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987 (ICRC Commentary on APs), para. 171 ICRC Challenges Report 2019, above note 150, p. 28. Many International Humanitarian Law (IHL) rules are based on the Principle of Distinction. 58). Can they be attacked until they are hors de combat (like combatants) or only while they directly participate in hostilities (like civilians)? To maintain a clear distinction between civilians and combatants and to ensure that PMSC staff do not lose their protection as civilians, they should therefore not be put in ambiguous situations. 386387, and in particular Rule 5, which explains that members of a leve en masse are an exception to the definition of civilians in that although they are not members of the armed forces, they qualify as combatants. 429430. On the other extreme, it is uncontroversial that the defence of military targets against common criminals or the defence of civilians and civilian objects against unlawful attacks does not constitute direct participation in hostilities. I detail what the principle of distinction is about and what the existing guidelines are for its application. As a result, the issue gives rise to difficult questions. ), 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. See below. Attacks must not be directed against civilian objects. The three components of this rule are interrelated and the practice pertaining to each of them reinforces the validity of the others. It is codified in Articles 48, 51 (2) and 52 (2) of Additional Protocol I of the Geneva Conventions and obligates states to differentiate between civilians and combatants and civilian objects and military objects in an armed conflict. 50(1); ICRC Customary Law Study, above note 12, Rule 5, pp. Rules\The Principle of Distinction between Civilians and Combatants. 14, No. Whether a person or object belongs to the military or the civilian side makes a huge difference: a member of an armed force or someone taking part in hostilities may be lawfully directly attacked. As the first paper written by Chinese scholars specifically devoted to this question, this piece provides a different perspective by injecting the positions of Chinese officials and the views of Chinese scholars. IT-01-42-A, Judgment (Appeals Chamber), 17 July 2008, para. 4 James J. Wirtz, The Cyber Pearl Harbor,Intelligence and National Security,Vol.
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