CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ QUESTIONS OF INTERNATIONAL HUMANITARIAN AND HUMAN RIGHTS LAW … prohibits acts or threats of violence the primary purpose of which is “to spread terror among the civilian population”. 31 4.2 Principle of Distinction – Applicability The cornerstone of the protection of civilians is the principle of distinction, which means that parties to an armed conflict must always distinguish between civilians (or civilian objects) to be protected and exempt from attack, and combatants (or military targets) who can be attacked. This obligation is well rooted in today’s IHL norms having a customary force, 32 have been explicitly codified in the first set of rules governing warfare, the Hague Regulations, 33 and also stipulated by the 1 st Additional Protocol. 34 In case of a non-international conflict, it is a binding obligation based on Common Article 3 of the Geneva Conventions, and the 2 nd Additional Protocol. 35 Based on this, there are some actions which are clearly prohibited and are also considered war crimes. Actions, the primary purpose of which is to spread terror among the civilian population, direct targeting of civilians or civilian objects, and indiscriminate attacks are among these. 36 Unfortunately, providing protection to civilians is usually very difficult in situations of asymmetric warfare, as the civilian population and objects are often being used by the weaker party to gain PR-advantage instead of the military advantage that is usually not possible against the stronger adversary. It often means fighters disguising themselves as civilians during combat, which can be qualified as a war crime as a matter of fact 37 but makes the application of this principle very difficult for the adverse party, in the current situation to the armed forces of intervening states. 4.3 Collateral Damage Collateral (or incidental) damage means when attacks which are originally targeted at legitimate military objectives cause civilian casualties or damage to civilian objects. It often occurs if legitimate military objectives, military targets (e.g. military equipment, combatants etc.) are situated close to civilians, or densely populated areas. This is a sadly realistic phenomenon of war, and IHL accepts it to a certain degree. Attacks that are expected to cause collateral damage are not prohibited per se , but indiscriminate attacks or disproportionate amount of damages are prohibited. 38 31 2 nd Additional Protocol. Art. 13. 32 Customary IHL study. p. 3, 25. See Rule 1. “The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians” and Rule 7. “The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects”. 33 Hague Regulations. Art. 22, 25. 34 1 st Additional Protocol. Art. 48, 51, 52, 57. 35 2 nd Additional Protocol. Art. 13. 36 Customary IHL study. p. 8. See Rule 2. “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”; 4 th Geneva Convention. Art. 33; 1 st Additional Protocol. Art. 51 Para 2; 2 nd Additional Protocol. Art. 13 Para 2; Rome Statute. Art. 8 Para 2 (b) (i),(ii), (iv), Para 2 (e) (i),(ii), (iv). 37 Rome Statute. Art. 8 Para 2 (b) (xi), Para 2 (e) (ix). 38 1 st Additional Protocol. Art. 57 Para. 2.

267