Attacks against persons

Definition

CollapseAttacks 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: National position of Costa Rica (2023) (2023).

National positions

Costa Rica (2023)

“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. […]”[11]

Appendixes

See also

Notes and references

  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. 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).

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