Attacks against persons

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Definition[edit | edit source]

Attacks against persons

The principle of distinction is one of the fundamental principles of international humanitarian law.[1] It obliges parties to an armed conflict to distinguish at all times between civilians and combatants.[2]

It is prohibited to direct an attack against civilians.[3] According to Article 48 AP I, parties to an armed conflict may “direct their operations only against military objectives”. Combatants may be attacked and are included insofar as they are positively distinguished from civilians and qualify as military objectives.[4]

Civilians are protected from attack unless and for such time as they directly participate in hostilities.[5]

The principle of distinction is closely linked to the principle of proportionality.[6] More precisely, the differentiation between lawful and unlawful targets is included in the decision-making process of weighing the anticipated military advantage with the expected incidental civilian harm in order to determine whether the target of an attack is a lawful military objective.[7]

Overall, an attack against a person is lawful if it is directed at a combatant or a civilian directly participating in hostilities, without causing incidental injuries, death or destruction to civilians or civilian objects (incidental civilian harm). An attack against such a person, which does result in incidental civilian harm, may additionally be lawful if the expected incidental harm is not excessive in relation to the anticipated military advantage.

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. ICJ, Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226, para. 78.
  2. ICRC, CIHL Study, rule 1; Article 48 AP I (“the Parties to the conflict shall at all times distinguish between the civilian population and combatants”).
  3. Art. 48 and 51(2) AP I.
  4. Yoram Dinstein (ed), The Conduct of Hostilities under the Law of International Armed Conflict (3rd edn, CUP 2016) 105.
  5. Article 51(3) AP I.
  6. See, eg, Michael N. Schmitt, ‘Fault Lines in the Law of Attack’ in S Breau and A Jachec-Neale (eds), Testing the Boundaries of International Humanitarian Law (BIICL 2006) 292 (noting that the principle of proportionality derives from the principle of distinction).
  7. Article 51(5)(b) AP I.

Bibliography and further reading[edit | edit source]