Private Military Contractors and the New Mercenarism, in, RIDLON Daniel P., Contractors or Illegal Combatants? [3] According to Additional Protocol I, "attacks" means "acts of violence against the adversary, whether in offence or in defence". This directly targets the fighters. 142 L. Zhu, Competition for International Rules in Cyberspace, above note 2, p. 40. Information warfare refers to a series of hostile activities carried out by belligerent parties in order to maintain their right to acquire, control and use information. 37, No. Nevertheless, in such conflicts as well, a distinction must exist ifIHLis to be respected: civilians can and will only be respected if government soldiers and rebel fighters can expect those looking like civilians not to attack them. 178182; William H. Boothby, Where Do Cyber Hostilities Fit in the International Law Maze?, in Hitoshi Nasu and Robert McLaughlin (eds), New Technologies and the Law of Armed Conflict, Springer, Berlin, 2014, pp. 33. 158 The Chinese version of AP I uses the term . [8] Most of them are not de jure or de facto incorporated into the armed forces of a party and are therefore not combatants but civilians. Some societies use Oxford Academic personal accounts to provide access to their members. 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. 1719. 73 The Internet is constantly searched by millions of software bots intent on finding connected computers; a bot searching for military-designated IP addresses would be able to find them in a matter of minutes. 48; ICRC Customary Law Study, above note 12, Rules 1, 7, pp. SCHMITT Michael N., Targeting in Operational Law, in GILL Terry D. and FLECK Dieter (ed.). 114 See the description of direct participation in hostilities as potentially intermittent and discontinuous in ICTR, The Prosecutor v. Strugar, Case No. Article 2. 96 Cyber Attacks against Estonia (2007), above note 15; E. Tikk, K. Kaska and L. Vihul, above note 15, pp. 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. 147 Dinstein, Yoram, Legitimate Military Objectives under the Current Jus in Bello, International Law Studies, Vol. The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus). It will also examine combatant as a legitimate target without necessarily looking at the issue of combatant status. 1, 2010. 2428. 1924. 29-48. Access to content on Oxford Academic is often provided through institutional subscriptions and purchases. Distinction (law) Distinction is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must distinguish between combatants and civilians. If you see Sign in through society site in the sign in pane within a journal: If you do not have a society account or have forgotten your username or password, please contact your society. "shouldUseShareProductTool": true, Are protected when they no longer participate: if they have fallen into the power of the enemy(See infra Combatants and POWs, III. The jurisprudence of the International Court of Justice in the. 2932; Jacob Kellenberger, International Humanitarian Law at the Beginning of the 21st Century, statement given at the 26th Round Table on Current Problems in International Humanitarian Law, Sanremo, 57 September 2002. 12. If you believe you should have access to that content, please contact your librarian. 178. 2324. If the person guarded by PMSC staff and under the domestic legislation of some countries even in the case of an object is civilian, criminal law self-defence may justify the use of force, even against combatants. Has data issue: true 48 GC III, Art. A/70/174, 22 July 2015, para. The Principle of Distinction in IACs 2.1. The Principle of Distinction A. Kasher Published 1 June 2007 Philosophy Journal of Military Ethics Abstract The principle of distinction (or discrimination) has been a pillar of any major version of the doctrine of just war, being one of the two principles of jus in bello. 7. Fundamental Principles: Principle of distinction Article 48 Additional Protocol 1 In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives. Are they protected civilians or can they be detained like combatants without any individual decision, but not benefit from POW status? PMSCs and major contracting States often stress that PMSCs have only defensive functions. 1, January 2006, pp. This code is the only text that specifically enumerates obligations of PMSCs. 121-146. View the institutional accounts that are providing access. Total loading time: 0.33 [4] 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. Means and methods of warfare). 22 AALCO, Verbatim Record of Discussions: Fifty-Eighth Annual Session, AALCO/58/DAR ES SALAAM/2019/VR, Dar es Salaam, 2125 October 2019, available at: www.aalco.int/Final%20Verbatim%202019.pdf. 411. 301304. 45, 2006, pp. Close this message to accept cookies or find out how to manage your cookie settings. VAN SCHAAK Beth, The Killing of Osama Bin Laden & Anwar Al-Aulaqi: Uncharted Legal Territory, VIERUCCI Luisa, Prisoners of War or Protected Persons qua Unlawful Combatants? Furthermore, certain data should fall within the ambit of civilian objects. JACKSON Jami Melissa, The Legality of Assassination of Independent Terrorist Leaders: an Examination of National and International Implications, in North Carolina Journal of International Law and Commercial Regulation, Vol. 15, No. 13 Heather Harrison Dinniss, Participants in ConflictCyber Warriors, Patriotic Hackers and the Laws of War, in Dan Saxon (ed. 893, 2015, p. 200. 102: The original of this Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, . 77 H. Harrison Dinniss, Cyber Warfare, above note 13, p. 148. 47 AP I, Art. 118 AP I, Art. 128 ICRC Commentary on APs, above note 123, para. 125 Marco Sassli, Military Objectives, in Max Planck Encyclopedia of Public International Law, 2015, para. 130 ICRC Commentary on APs, above note 123, para. Protecting civilians and civilian objects during armed conflict. When considered a civilian not taking part in hostilities, a person is protected from direct attack. See ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 32IC/15/11, October 2015 (ICRC Challenges Report 2015), p. 41. 8, Issue 3, 2008, pp. Content may require purchase if you do not have access. When on the society site, please use the credentials provided by that society. State-Sponsored Assassination under International Law. 143 International Criminal Tribunal for the former Yugoslavia, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, 13 June 2000, para. Fourth, if the aim of the conflict is ethnic cleansing, the parties will logically and of necessity attack civilians and not combatants. This principle obligates all parties to a conflict to distinguish between those who are fighting and those who are not. Who is a combatant? This research is supported by the Major Projects of National Social Science Fund of China (Grant No. To cite this article: Talitha Ramphal. Chinese textbooks and papers generally hold the view that the term IHL has evolved from the law of war or LOAC, and thus treat them as synonymous; see, for example, , , , 2003, 1 (Wenqi Zhu, What Is International Humanitarian Law?, Wuhan University International Law Review, Vol. C. e) The global war on terror? 39. 138 R. Geiss and H. Lahmann, above note 34, p. 385. 27, No. 14 The ICRC Customary Law Study, above note 12, Rule 6, stipulates that civilians are protected against attack unless and for such time as they take a direct part in hostilities. 171 ICRC Challenges Report 2019, above note 150, p. 28. A personal account can be used to get email alerts, save searches, purchase content, and activate subscriptions. 63], Syria, Syrian rebels treat captured Filipino soldiers as 'guests', Case Study, Armed Conflicts in the former Yugoslavia [Para. 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. WATKIN Kenneth, Humans in the Cross-Hairs: Targeting, Assassination and Extra-Legal Killing in Contemporary Armed Conflict, in WIPPMAN David & EVANGELISTA Matthew (eds), BELT Stuart Walters, Missiles over Kosovo: Emergence, Lex Lata, of a Customary Norm Requiring the Use of Precision Munitions in Urban Areas, in, BLANK Laurie & GUIORA Amos, Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare, in. SASSLI Marco, La dfinition du terrorisme et le droit international humanitaire, in Revue qubcoise de droit international, Vol. Conduct of Hostilities II. 4, Issue 5, 2006, pp. 559-576. MELZER Nils, The Principle of distinction between civilians and combatants, in CLAPHAM Andrew & GAETA Paola (eds). b. the increasing number of civilians (i.e. There are also some opposite views, such as Laurent Gisel, The Relevance of Revenue-Generating Objects in Relation to The Notion of Military Objective, in ICRC, The Additional Protocols at 40: Achievements and Challenges, 18th Bruges Colloquium, 1920 October 2017. 13(2); GC III, Art. Treatment of prisoners of war), if wounded, sick or shipwrecked(See infra Wounded and Sick), if parachuting out of an aircraft in distress(See P I, Art. 1, 2003, only available in Chinese). Combatants and POWs, I. 163 , : , , : 2.0 , , 2019: 410413 (Yanxin Zhu, The Nature of Data: A Reinterpretation of the Legal Meaning of Military Objective, in Zhixiong Huang (ed. 92 Israel High Court of Justice, Targeted Killings, above note 88, para. 78. The principle of distinction is a central notion under international humanitarian law (IHL). 1. 26/1, 2002, pp. Doing so contributes to the effective implementation and enforcement of IHL and creates a sense of ownership among their staff. The second concern is that the consequence-based approach limits the notion of attack so as to exclude those operations that result in severe and disruptive non-physical harm. For the purpose of this paper, the term IHL will be used generally, while the term law of armed conflict is used when the cited sources use that particular term. Is International Law in Cyberspace Doomed as Well?, Lawfare, 4 July 2017, available at: https://lawfareblog.com/un-gge-failed-international-law-cyberspace-doomed-well. ; Arun Mohan Sukumar, The UN GGE Failed. 4, 2007. 136 Dominik Steiger, Civilian Objects, in Max Planck Encyclopedia of Public International Law, 2011, para. 99 ICRC Challenges Report 2015, above note 32, p. 42. To qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria: Article 52of Additional Protocol I sets out the universally accepted definition of a military object, which, due to its customary nature (clarified byRule 10ICRC CUIL Study), applies toboth IAC and NIAC. The present authors note that some doubts were expressed as to whether this assessment could be upheld in extreme situationsnamely, those in which the expertise of a particular civilian is of very exceptional and potentially decisive value for the outcome of an armed conflict, such as the case of nuclear weapons experts during the Second World War. 88 Israel High Court of Justice, Public Committee against Torture in Israel v. Israel et al., Case No. First of all, to show that Bertrand Russell's well-known objection to the Principle of Characterization can be reformulated against contemporary unrestricted interpretations of it. SCHMITT Michael N., Asymmetrical Warfare and International Humanitarian Law, The Air Force Law Review, Vol. 51(3); ICRC Customary Law Study, above note 12, Rule 6, pp. This article will analyse the purposes of the distinction principle and display the juxtaposition of its intended purpose to its use in reality. There are some concerns about the inaccurate use of these two terms. 2226. 40 See, for example, J. Kelsey, above note 33, p. 1427; Yoram Dinstein, The Principle of Distinction and Cyber War in International Armed Conflicts, Journal of Conflict and Security Law, Vol. 38 State Council Information Office of the People's Republic of China (SCIO), China's National Defense in the New Era, Beijing, July 2019, available at: www.scio.gov.cn/zfbps/32832/Document/1660325/1660325.htm; SCIO, China's Military Strategy, Beijing, May 2015, available at: www.scio.gov.cn/zfbps/ndhf/2015/Document/1435159/1435159.htm. MACDONALD Avril, The Legal Status of Military and Security Subcontractors, in ARNOLD Roberta & HILDBRAND Pierre-Antoine (eds), MILLIARD Todd S., Overcoming Post-Colonial Myopia: A Call to Recognize and Regulate Private Military Companies, in, RAASVELDT Robert, Accountability Problems for Private Military Companies, in, SCHMITT Michael N., War, International Law and Sovereignty: Reevaluating the Rules of the Game in a New Century: Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, in, SOSSAI Mirko, Status of Private Military Companies Personnel in the Laws of War: The Question of Direct Participation in Hostilities, in, STEPHENS Dale & LEWIS Angeline, The Targeting of Contractors in Armed Conflict, in. 61 H. Harrison Dinniss, Cyber Warfare, above note 13, p. 144. However, an attack on a legitimate military objective may sometimes cause incidental damage to civilian persons or objects. } A central notion under international humanitarian law is the principle of distinction: certain people and objects enjoy protection against attacks because of their civilian status. 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. 120 AP I, Art 52(2); ICRC Customary Law Study, above note 12, Rule 8, pp. main objectives of this article are the following: 1) to analyze characteristics of the principle of distinction in international armed conflicts and non-international armed conflicts and to investigate the established views and perceptions of this institution by focusing on controversial and obscure points; 2) to identify the challenges that C. e) The global war on terror?]. 15 For a detailed description of the cyber attack against Estonia in 2007, see Cyber Attacks against Estonia (2007), International Cyber Law in Practice: Interactive Toolkit, NATO Cooperative Cyber Defence Centre of Excellence (CCD COE), available at: https://cyberlaw.ccdcoe.org/wiki/Cyber_attacks_against_Estonia_(2007); Eneken Tikk, Kadri Kaska and Liis Vihul, International Cyber Incidents: Legal Considerations, CCD COE, Tallinn, 2010, pp. Is everyone who is not a combatant a civilian (or is there an intermediate category of unlawful combatant)? 29-91. 12 Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III), Art. 170 ICRC Cyber Operations Paper, above note 32, p. 8. 26 For more explanation on China's attitude towards IHL, see B. Zhang, above note 19. ), International Humanitarian Law and the Changing Technology of War, Martinus Nijhoff, Boston, MA, and Leiden, 2013, p. 256; Heather Harrison Dinniss, Cyber Warfare and the Laws of War, Cambridge University Press, Cambridge, 2012, p. 145. The Principle of Distinction allows only combatants or military objects to be directly targeted in armed conflicts. 1, 2010CrossRefGoogle Scholar. 74 Tallinn Manual 2.0, above note 31, Rule 87, p. 405. Definition of with distinction : with special awards or recognition He graduated with distinction. 160 Dinniss, Heather Harrison, The Nature of Objects: Targeting Networks and the Challenge of Defining Cyber Military Objectives, Israel Law Review, Vol. 9 Michael N. Schmitt and Liis Vihul, International Cyber Law Politicized: The UN GGE's Failure to Advance Cyber Norms, Just Security, 30 June 2017, available at: www.justsecurity.org/42768/international-cyber-law-politicized-gges-failure-advance-cyber-norms/. Vol. The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict. 6 See ICRC, War and Law, available at: www.icrc.org/en/war-and-law. The parties to the conflict must at all times distinguish between civilian objects and military objectives. 28, No. principles defined in the 'mini convention' provided in Common Article 3. I detail what the principle of distinction is about and what the existing guidelines are for its application. 1, 2015; ICRC Cyber Operations Paper, above note 32, p. 8; ICRC Challenges Report 2015, above note 32, pp. In addition, PMSC staff providing security for an object will often not be able to know whether that object constitutes a military objective (which excludes self-defence, because the attack would be lawful and self-defence is only admissible against unlawful attacks) and whether the attackers do not belong to a party (which would not classify resistance against such attackers as direct participation in hostilities, even when the object attacked is a military objective). 11 See The United Nations Doubles Its Workload on Cyber Norms, and Not Everyone Is Pleased, Council on Foreign Relations Blog, 15 November 2018, available at: www.cfr.org/blog/united-nations-doubles-its-workload-cyber-norms-and-not-everyone-pleased. 57-69. 18 No. ), 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/. David Albright, Paul Brannan and Christina Walrond, Did Stuxnet Take Out 1,000 Centrifuges at the Natanz Enrichment Plant?, Institute for Science and International Security, 22 December 2010; Stuxnet (2010), above note 97. 67 H. Harrison Dinniss, Cyber Warfare, above note 13, p. 149. IT-01-42-A, Judgment (Appeals Chamber), 17 July 2008, para. USA, Al-Shimari v. CACI Premier Technology, Inc. the law of armed conflict, also known as international humanitarian law, includes principles such as distinction between military and civilian targets (International Committee of the Red Cross (ICRC), The Law of Armed Conflict: Basic Knowledge, Geneva, June 2002, p. 2, available at: www.icrc.org/eng/assets/files/other/law1_final.pdf), while others render international humanitarian law as a potentially narrower concept that relates only to the laws in armed conflict that are designed to regulate the treatment of personscivilian or military, wounded or activein armed conflicts (Mary O'Connell, Historical Development and Legal Basis, in Dieter Fleck (ed. 1, ICRC, Geneva, 2011, p. 52. 6062; Knut Drmann, Applicability of the Additional Protocols to Computer Network Attacks, paper presented at the International Expert Conference on Computer Network Attacks and the Applicability of International Humanitarian Law, Stockholm, 1719 November 2004; Droege, Cordula, Get Off My Cloud: Cyber Warfare, International Humanitarian Law, and the Protection of Civilians, International Review of the Red Cross, Vol. MELZER Nils, The principle of distinction under international humanitarian law, in MELZER Nils, WARD Christopher, Distinction: The Application of the Additional Protocols in the Theatre of War, in. 5/6, August 2007, pp. 'The Principle of Distinction under International Humanitarian Law'. There is a clear utility for the enemy to store military equipment and the destruction would reduce the capabilities of the enemy forces. In international armed conflict (IAC), all persons who are neither members of the armed forces of a party to the conflict nor participants in a leve en masse are civilians. Therefore, they are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. This principle, enshrined in Articles 48 and 52 of the Additional Protocol I to the Geneva Convention, essentially seeks to protect the . The performance of such functions may nevertheless constitute direct participation in hostilities. A/67/167, 23 July 2012, p. 5. 24/2, 1999, pp. The parties to the conflict must at all times distinguish between civilians and combatants. WIPPMAN David & EVANGELISTA Matthew (eds), New Wars, New Laws? 301304. Do not use an Oxford Academic personal account. International Journal of Law and Society. 75, No. 178 Jiminin, Jimena M. Conde, The Principle of Distinction in Virtual War: Restraints and Precautionary Measures under International Humanitarian Law, Tilburg Law Review, Vol. TheIHLof non-international armed conflicts does not even refer explicitly to the concept of combatants, mainly because States do not want to confer on anyone the right to fight government forces. Alleged violations of this rule have generally been condemned by States, irrespective of whether the conflict was international or non-international. The principle of distinction is one of the fundamental principles of the law of armed conflict ("LOAC") and obligates all parties to a conflict to distinguish between combatants and civiliansbetween those who are fighting and those who are not. 80, 2006, pp. 89 Interpretive Guidance, above note 14, p. 46. The analysis is complicated by the absence of an international law standard of self-defence and defence of others and by doubts whether the criminal law defence of self-defence which avoids conviction may be used ex ante as a legal basis for an entire business activity. 465-491. ROBERTS Adam, Counter-terrorism, Armed Force and the Laws of War, in Survival, Vol. 36 Civilians play an increasingly important and complex role in armed conflicts, both as victims and perpetrators. This overall trend is called civilianization in Andreas Wenger and Simon J.