Distinction (law)
Distinction is a principle under
Article 51.3 of
Codification
Distinction is covered by
Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives,[4] even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv).
Article 8(2)(b)(iv) criminalizes:
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additionalinter alia, an assessment of:
(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was "clearly excessive" in relation to (b).—Luis Moreno-Ocampo.[6]
See also
- Indiscriminate attack
- International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons
- Civilian casualty ratio
Footnotes
- ^ Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons. I.C.J. Reports. July 8, 1996. pp. 226, 257.
- ^ Crawford, Emily. Lattimer, Mark; Sands, Philippe (eds.). Who is a Civilian? Membership of Opposition Groups and Direct Participation in Hostilities. Hart. p. 20.
- ^ "Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.: Article 4 - Definition of protected persons". International Humanitarian Law Databases.
Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals . . . Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.
- ^ a b Article 52 of Additional Protocol I to the Geneva Conventions provides a widely accepted definition of military objective: "In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage" (Source: Moreno-Ocampo 2006, page 5, footnote 11).
- ICRC, Customary IHL Database.
- ^ Moreno-Ocampo 2006, See section "Allegations concerning War Crimes" Pages 4,5.
References
- Greenberg, Joel (2011), Illegal Targeting of Civilians, www.crimesofwar.org/about/crimes-of-war/ Crimes of War Education Project, archived from the original on 2013-07-06, retrieved 2013-06-19
- Moreno-Ocampo, Luis (9 February 2006), OTP letter to senders re Iraq(PDF), www.icc-cpi.int/Pages/default.aspx International Criminal court. See section "Allegations concerning War Crimes" Pages 4,5
Further reading
- Hampson, Françoise (2011), Military Necessity, www.crimesofwar.org/about/crimes-of-war/ Crimes of War Education Project, archived from the original on 2013-06-07
- Powers, Rod, Law of Armed Conflict (LOAC), About.com Guide, archived from the original on 2016-08-14, retrieved 2007-01-24