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 and has the status of customary international 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] Furthermore, intentionally directing attacks against the civilian population or against individual civilians not taking direct part in hostilities qualifies as a war crime.[4] Acts or threats of violence that primarily aim at spreading terror among the civilian population are also prohibited.[5]

According to Article 48 AP I, parties to an armed conflict may “direct their operations only against military objectives”. Attacks may be directed against combatants insofar as they are positively distinguished from civilians and qualify as military objectives.[6] Civilians are protected from attack unless and for such time as they directly participate in hostilities.[7]

The principle of distinction is closely linked to the principle of proportionality.[8] The principle of proportionality prohibits attacks that may be expected to cause incidental injuries, death or destruction to civilians or civilian objects (incidental civilian harm), which would be excessive in relation to the concrete and direct military advantage anticipated.[9] Put differently, belligerents are obliged to refrain from attacks even against those persons who otherwise qualify as military objectives if such attacks are expected to cause disproportionate incidental civilian harm.[10]

Overall, an attack against a person may be lawful if it is directed at a combatant or a civilian directly participating in hostilities, without causing any 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.

Publicly available national positions that address this issue include: Common position of the African Union (2024) (2024), National position of Costa Rica (2023) (2023), National position of the Czech Republic (2024) (2024).

National positions[edit | edit source]

African Union (2024)[edit | edit source]

"51. On the basis of these general principles, the African Union underscores the importance of the principle of distinction, which prohibits attacks that are directed at civilians or civilian objects, including ICTs, whether such attacks are undertaken using kinetic or cyber means."[11]

Costa Rica (2023)[edit | edit source]

"46. The principle of distinction requires that parties to an armed conflict distinguish at all times between civilians and combatants and between civilian objects and military objectives, including in the ICT environment. Cyber operations may only be directed against combatants or military objectives. Cyber operations must not be directed against civilians or civilian objects. [...]

[...]

51. Under IHL, indiscriminate attacks, i.e., those of a nature to strike military objectives and civilians or civilian objects without distinction, are prohibited, including when carried out by cyber operations. [...]"[12]

Czech Republic (2024)[edit | edit source]

"41. Parties to armed conflict must carefully design and use cyber tools to distinguish between the civilian population and combatants and between civilian objects and military objectives when conducting cyber operations. Civilians and civilian objects shall be protected from being the object of attack, including those carried out by cyber means. Civilians are protected against attack unless and for such time as they are directly participating in hostilities. In case of doubt as to whether a person is a civilian, that person shall be presumed a civilian. [...]"[13]

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. 78-79.
  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; Art. 13(2) AP II.
  4. Art. 8(2)(b)(i) and 8(2)(e)(i) Rome Statute of the International Criminal Court
  5. Art. 51(2) AP I; ICRC, CIHL Study, rule 2. See also Tallinn Manual 2.0, rule 98.
  6. Yoram Dinstein (ed), The Conduct of Hostilities under the Law of International Armed Conflict (3rd edn, CUP 2016) 105.
  7. Art. 51(3) AP I.
  8. 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).
  9. Art. 51(5)(b) AP I.
  10. ICRC, The Principle of Proportionality in the Rules Governing the Conduct of Hostilities under International Humanitarian Law (Laurent Gisel ed.) (ICRC 2018) 5.
  11. African Union Peace and Security Council, "Common African Position on the Application of International Law to the Use of Information and Communication Technologies in Cyberspace" (29 January 2024) 8.
  12. Ministry of Foreign Affairs of Costa Rica, "Costa Rica's Position on the Application of International Law in Cyberspace" (21 July 2023) 12-13 (footnotes omitted).
  13. Ministry of Foreign Affairs of the Czech Republic, "Czech Republic - Position paper on the application of international law in cyberspace" (27 February 2024) 11 (footnotes omitted).

Bibliography and further reading[edit | edit source]