), Issues in International Law and Military Operations, in International Law Studies, Vol. ; Michael N. Schmitt, Notion of Objects during Cyber Operations: A Riposte in Defence of Interpretive and Applicative Precision, Israel Law Review, Vol. ; Arun Mohan Sukumar, The UN GGE Failed. SCHMITT Michael N., The Impact of High and Low-Tech Warfare on the Principle of Distinction, in ARNOLD Roberta & HILDBRAND Pierre-Antoine (eds), LAMP Nicolas, Conceptions of War and Paradigms of Compliance: The New War Challenge to International Humanitarian Law, in, THUERER Daniel, The Failed State and International Law, in. 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 While combatants are recognized as legitimate objects of target, civilians are legally protected and immune from attacks in armed conflicts. 3 , , , 2012, 26(05) (Wang, Haiping, The Research Progress of the Law of Armed Conflict and the Issues Needing Attention, Contemporary Law Review, Vol. RUBIN Alfred P., Applying the Geneva Conventions: Military Commissions, Armed Conflict, and Al-Qaeda, in The Fletcher Forum of World Affairs, Vol. Enter your library card number to sign in. 84, No. Passive precaution requires belligerent parties, to the maximum extent feasible, (i) to endeavour to remove civilians and civilian objects under their control from the vicinity of military objectives; (ii) to avoid locating military objectives within or near densely populated areas; and (iii) otherwise to protect civilians and civilian objects against the dangers resulting from military operations. 78 Interpretive Guidance, above note 14, p. 46. USA, Al-Shimari v. CACI Premier Technology, Inc. This article will discuss the factors and principles used by the appellate courts in making this distinction. 3, 25. To address the lack of clarity, the International Committee of the Red Cross (ICRC) invited military and humanitarian experts to a project, and drafted the following definition and criteria for DPIH. Combatants and POWs, I. 37, No. An IAC and Its Parties An IAC is defined in Common Article 2 (1) of the Geneva Conventions as 'all cases of declared war of any other armed conflict which may arise between two or more of the High Are protected when they no longer participate: if they have fallen into the power of the enemy(See infra Combatants and POWs, III. 31 Michael N. Schmitt (ed. To go beyond soft law, a process is also ongoing within the UN Human Rights Council which established in 2017 an open-ended intergovernmental working group tasked to elaborate an international regulatory framework - the nature of which has yet to be defined to protect human rights and ensure accountability for violations and abuses relating to the activities of [PMSCs] [7]. 86 Judith G. Gardam, Non-Combatant Immunity as a Norm of International Law, Martinus Nijhoff, Dordrecht, 1993. HCJ 769/02, Judgment, 11 December 2005 (Targeted Killings). Fundamentals of IHL, III. 27, No. 82 AP I, Art. 104 See Emily Crawford, Virtual Battlegrounds: Direct Participation in Cyber Warfare, Sydney Law School Research Paper No. 27 article 48 of ap i stipulates that parties to a conflict shall at all Only combatants or military targets may be the target of an attack; civilians or civilian objects are not permitted targets. 58). "isUnsiloEnabled": true, 2, 2009, p. 317. 6, 2017; James J. Wirtz, The Cyber Pearl Harbor Redux: Helpful Analogy or Cyber Hype?, Intelligence and National Security, Vol. 112 Israel High Court of Justice, Targeted Killings, above note 88, para. 139 To avoid ambiguity, in terms of the numbers noted, we would like to remind readers that not all government communication is equal to military communication or military objectives. 2, 2013Google Scholar, only available in Chinese); , , , 2013, 31(04) (Bojun Li, On Cyber Warfare and the Application of the Law of War, Law Review, Vol. The Principle of Distinction allows only combatants or military objects to be directly targeted in armed conflicts. BORELLI Silvia, The Treatment of Terrorist Suspects Captured Abroad: Human Rights and Humanitarian Law, in BIANCHI Andrea (ed. A/C.1/73/L.37) respectively. Distinction principle 1. ), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, Cambridge University Press, Cambridge, 2017 (Tallinn Manual 2.0), Rule 92, p. 415. Definition of with distinction : with special awards or recognition He graduated with distinction. 2 See, for example, Zhang, Li, A Chinese Perspective on Cyber War, International Review of the Red Cross, Vol. C. e) The global war on terror?]. 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. 108 ICRC, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report, Geneva, 2728 November 2006, p. 48. 37 L. Zhu, Competition for International Rules in Cyberspace, above note 2, p. 40. 1924. 1, 2004, pp. 1, 2015; ICRC Cyber Operations Paper, above note 32, p. 8; ICRC Challenges Report 2015, above note 32, pp. Special rules on occupied territories), against attacks and effects of hostilities(See infra, Conduct of Hostilities, II. 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. The protection of the civilian population against the effects of hostilities, 7. In non-international armed conflict, organised armed groups constitute the armed forces of a non-state party to the conflict and consist only of individuals whose continuous function is to take a direct part in hostilities (continuous combat function). 1, April 2009, pp. 32, No. 3-15. Many International Humanitarian Law (IHL) rules are based on the Principle of Distinction. Many philosophers, such as Isabelle Thomas-Fogiel, claim to have refuted realism. MCDONALD Neil & SULLIVAN Scott, Rational Interpretation in Irrational Times: The Third Geneva Convention and War on Terror, in. SASSLI Marco, La guerre contre le terrorisme, le droit international humanitaire et le statut de prisonnier de guerre, in. Our books are available by subscription or purchase to libraries and institutions. 26 For more explanation on China's attitude towards IHL, see B. Zhang, above note 19. 465-491. KRTGEN Yannic, Outsourcing war : private military and security companies under international humanitarian law, in BASSIOUNI Cherif, LIU Hin-Yan, Leashing the Corporate Dogs of War: the Legal Implications of the Modern Private Military Company, in. See , : 2.0 , , 2019: 301 (Zhixiong Huang (ed. Are they protected civilians or can they be detained like combatants without any individual decision, but not benefit from POW status? Volume 102 Issue 913: Digital technologies and war. The principle of distinction is a central notion under international humanitarian law (IHL). 44/1, 2002, pp. 20 See China's Submissions to the Open-ended Working Group on Developments in the Field of Information and Telecommunications in the Context of International Security, p. 6, available at: www.un.org/disarmament/wp-content/uploads/2019/09/china-submissions-oewg-en.pdf. 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. 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. 24/2, 1999, pp. 74 Tallinn Manual 2.0, above note 31, Rule 87, p. 405. The same requirements apply to dual-use objects. GOODMAN Ryan, The Detention of Civilians in Armed Conflicts, in. 2, 2012, p. 292; see also Michael N. Schmitt, Direct Participation in Hostilities and 21st Century Armed Conflict, in Horst Fischer and Dieter Fleck (eds), Crisis Management and Humanitarian Protection: Festschrift for Dieter Fleck, BWV, Berlin, 2004, p. 527. 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. 97 Stuxnet (2010), International Cyber Law in Practice: Interactive Toolkit, CCD COE, available at: https://cyberlaw.ccdcoe.org/wiki/Stuxnet_(2010); E. Tikk, K. Kaska and L. Vihul, above note 15, pp. Under the principle of distinction, all involved in the armed conflict must distinguish between the persons thus defined (the combatants) and civilians. "useRatesEcommerce": false, Close this message to accept cookies or find out how to manage your cookie settings. Applying the Laws of War in 21st Century Conflicts, New York, Transnational Publishers, 2005, pp. See Jakob Kellenberger, International Humanitarian Law and New Weapon Technologies, 34th Round Table on Current Issues of International Humanitarian Law, Sanremo, Italy, 810 September 2011: Keynote Address by Dr Jakob Kellenberger, International Review of the Red Cross, Vol. HCJ 769/02, 13 December 2006, para. 20&ZD204). 516-529. No official contrary practice was found with respect to either international or non-international armed conflicts. It should also be carefully re-examined and clarified from the standpoint of preventing over-militarization and maximizing the protection of the interests of civilians. BOGAR Thomas, Unlawful Combatant or Innocent Civilian? See ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 32IC/15/11, October 2015 (ICRC Challenges Report 2015), p. 41. 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. 7. Protection of civilians against arbitrary treatment, IV. FORSYTHE David P., United States Policy Toward Enemy Detainees in the War on Terrorism, in Human Rights Quarterly, Vol. Conduct of Hostilities II. To maintain a clear distinction between civilians and combatants and to ensure that PMSC staff do not lose their protection as civilians, they should therefore not be put in ambiguous situations. See also Jonathan Crowe and Kylie Weston-Scheuber, Principles of International Humanitarian Law, Edward Elgar, Cheltenham, 2013, pp. If the pressure takes the form of attacks or starvation tactics, it constitutes a violation ofIHL. 7-32. For substantive discussion about direct participation in hostilities, see Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, 2009 (Interpretive Guidance). Alleged violations of this rule have generally been condemned by States, irrespective of whether the conflict was international or non-international. 411. 51(3); ICRC Customary Law Study, above note 12, Rule 6, pp. The aim of this text is twofold. 107 Interpretive Guidance, above note 14, p. 46. PFANNER Toni, Asymmetrical Warfare from the Perspective of Humanitarian Law and Humanitarian Action, in, REEVES Shane, WALALACE David.A, The Combatant Status of the 'Little Green Men' and Other Participants in the Ukraine Conflict in. 1-2, No. Select your institution from the list provided, which will take you to your institution's website to sign in. Are protected because they do not participate: as civilians in the hands of the enemy(See infra Civilian Population, II. 52 David Turns, Cyber Warfare and the Notion of Direct Participation in Hostilities, Journal of Conflict and Security Law, Vol. 39 See ICRC Cyber Operations Paper, above note 32, pp. The application of the principle of distinction in https://doi.org/10.1017/S1816383121000023, Get access to the full version of this content by using one of the access options below. 23 AALCO, Verbatim Record of Discussions: Fifty-Fourth Annual Session, AALCO/54/BEIJING/2015/VR, Beijing, 1317 April 2015. 94, No. 4, Issue 5, 2006, pp. There is a clear utility for the enemy to store military equipment and the destruction would reduce the capabilities of the enemy forces. The definition of a lawful object of attack varies depending on whether the target is a person or an object. 122 Program on Humanitarian Policy and Conflict Research at Harvard University, HPCR Manual on International Law Applicable to Air and Missile Warfare, Cambridge, MA, 2010, p. 49. 19, hors-srie, 2007, pp. The authors are grateful to all the editors and anonymous referees for their useful suggestions and to Eric Jensen, Kubo Mak, Ignacio de la Rasilla del Moral, Jinyuan Su, Nicole Hogg and Nicholas Tsagourias for their helpful comments on earlier drafts of this article. The most critical, difficult and frequent situation is when PMSC staff guard objects, transports or persons. The article is divided into three parts. In sum, both self-defence and defence of others are lawful for PMSC staff, and neither makes them legitimate targets of attacks. If you cannot sign in, please contact your librarian. Instead of bringing order to war and saving lives, the Principle of Distinction precludes the rule of law and endangers the lives of those whom it was designed to protect. It is codified in Articles 48, 51 (2) and 52 (2) of Additional Protocol I of the Geneva Conventions and obligates states to differentiate between civilians and combatants and civilian objects and military objects in an armed conflict. 1, 2003, only available in Chinese). 275-279. doi: 10.11648/j.ijls.20210404.15 View all Google Scholar citations 145149. However, proportionality considerations may make it an unlawful target, and precautionary steps would have to be taken, such as warnings or attacking the factory at night when the workers are not present. 79-81. This article seeks to illustrate how the Principles of Distinction and Proportionality, coming from a branch of primary rules (International Humanitarian Law) have a relevant influence on the . 42 Danish Ministry of Defence, Defence Command Denmark, Military Manual on International Law Relevant to Danish Armed Forces in International Operations, Copenhagen, September 2016. One must know who and what may be targeted and who and what may not, and what protection to afford depending on the category which a person belongs to. [3] According to Additional Protocol I, "attacks" means "acts of violence against the adversary, whether in offence or in defence". The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict. 5/6, August 2007, pp. The legal framework: the principle of distinction The conduct of states and non-state actors in an armed conflict is regulated by international humanitarian law (IHL), also known as the law of armed conflict (LOAC) or jus in bello. This principle, enshrined in Articles 48 and 52 of the Additional Protocol I to the Geneva Convention, essentially seeks to protect the . 179 DoD, above note 4; J. J. Wirtz, The Cyber Pearl Harbor, above note 4; J. J. Wirtz, The Cyber Pearl Harbor Redux, above note 4. 76 See Prashant Mali, Defining Cyber Weapon in Context of Technology and Law, in Information Management Association, Multigenerational Online Behavior and Media Use: Concepts, Methodologies, Tools, and Applications, IGI Global, Hershey, PA, 2019; Jeffrey T. Biller and Michael N. Schmitt, Classification of Cyber Capabilities and Operations as Weapons, Means, or Methods of Warfare, International Law Studies, Vol. 32 The consequence-based approach is very useful as it switches the focus from the means and nature of an act to the effect and consequence of an act, thus fulfilling the requirement of violence and keeping the provision dynamic and evolutive. 28, No. MURPHY Sean D., Evolving Geneva Convention Paradigms in the War on Terrorism: Applying the Core Rules to the Release of Persons Deemed Unpriviliged Combatants, in The George Washington Law Review, Vol. Who is a combatant? A Call to Change the Current Means for Determining Status of Prisoners in the Global War on Terror, in Florida Journal of International Law, Vol. 116 Ibid., para. Furthermore, since the phenomenon of PMSCs goes beyond the traditional notions of the Westphalian State system, and because many of them do not work for States and armed groups, it is equally important to apply IHL directly to PMSCs. The parties to the conflict must at all times distinguish between civilian objects and military objectives. Today, the axiom itself is challenged by reality on the ground, in particular by the increasing civilianization of armed conflicts, a notion that is discussed in more detail below. 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. State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. Some argue that the main question expressed by the concept of cyber warfare is whether cyber attackers armed with keyboards, computer viruses and malware can become (or have become) a new means or method of warfare. IHL seeks to balance military necessity and humanitarian concerns through its rules and principles. View your signed in personal account and access account management features. 13(2); GC III, Art. These harmful side effects are regulated by the principle of proportionality, which prohibits attacks that may be expected to cause injury to civilian life or property that is excessive in relation to the anticipated military advantage. 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. 5, 2014Google Scholar, only available in Chinese). CONDORELLI Luigi & NAQVI Yasmin, The War against Terrorism and Jus in Bello: Are the Geneva Conventions Out of Date?, in BIANCHI Andrea (ed.). 5, 2018; US Department of Defense (DoD), Remarks by Secretary Panetta on Cybersecurity to the Business Executives for National Security, New York City, 12 October 2012, available at: https://content.govdelivery.com/accounts/USDOD/bulletins/571813. 128 ICRC Commentary on APs, above note 123, para. Attacks may only be directed against combatants. When on the society site, please use the credentials provided by that society. The dividing line between the two categories has developed over time, reflecting the conflicting interests between, on the one hand, powerful, well-equipped States that wanted a strict definition of clearly identified combatants, and, on the other, weaker States that wanted to retain the option to use additional human resources flexibly and thereby continue the hostilities even when their territory was under enemy control, which is practically impossible if combatants have to identify themselves permanently. 3, 2010. 2, Shanghai Dictionary Publishing House, 2009);, , 2006 (Xinhua Chinese Dictionary, Chongwen Publishing House, 2006); , , 2010 (Etymology of Modern Times, Shanghai Dictionary Publishing House, 2010). 83 H. Harrison Dinniss, Participants in Conflict, above note 13, p. 258. 106, No. MELZER Nils, The Principle of distinction between civilians and combatants, in CLAPHAM Andrew & GAETA Paola (eds). The framework for targeting is a concept that encompasses these instruments and has, at its heart, the principle of distinction. 120 AP I, Art 52(2); ICRC Customary Law Study, above note 12, Rule 8, pp. 167 14 Bromma, Sweden, The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and, There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and. The principle of distinction between civilians and combatants was first set forth in the St. Petersburg Declaration, which states that the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy. Targeted Killing in Contemporary Legal Doctrine, Law Enforcement and the Conventional Human Right to Life, Law Enforcement and the Protection of Life under International Humanitarian Law, Law Enforcement and the Non-Conventional Human Right to Life, Permissibility of Targeted Killing as a Method of Law Enforcement, The Principle of Distinction under International Humanitarian Law, The Rule of Distinction in International Armed Conflict, Treaty Law Pre-Dating Additional Protocol I of 1977, The Rule of Distinction in Non-International Armed Conflict, Armed Forces or Groups, Civilians and Combatants, Direct Participation in Hostilities and Hostile or Harmful Acts, Direct Participation in Hostilities and Unlawful orUnprivileged Combatancy, Direct and Active Participation in Hostilities, Direct Participation in and Conduct of Hostilities, Resulting Concept of Direct Participation in Hostilities, Resulting Temporal Scope of Loss of Protection, Presumption of Civilian Protection in Case of Doubt, Duty to Avoid or Minimize Collateral Damage, The Prohibition of Indiscriminate Attacks, Limited Relevance for the Method of Targeted Killing, The Principle of Proportionality in Attack, Concept and Aspects of Proportionality in the Conduct of Hostilities, Means and Methods in the Conduct of Hostilities, Human Rights Law and the Paradigm of Hostilities, Permissibility of Targeted Killing as a Method of Conducting Hostilities, Epilogue: Targeted Killing and the Rule of Law, Archaeological Methodology and Techniques, Browse content in Language Teaching and Learning, Literary Studies (African American Literature), Literary Studies (Fiction, Novelists, and Prose Writers), Literary Studies (Latin American and Caribbean), Literary Studies (Postcolonial Literature), Musical Structures, Styles, and Techniques, Popular Beliefs and Controversial Knowledge, Browse content in Company and Commercial Law, Browse content in Constitutional and Administrative Law, Private International Law and Conflict of Laws, Browse content in Legal System and Practice, Browse content in Allied Health Professions, Browse content in Obstetrics and Gynaecology, Clinical Cytogenetics and Molecular Genetics, Browse content in Public Health and Epidemiology, Browse content in Science and Mathematics, Study and Communication Skills in Life Sciences, Study and Communication Skills in Chemistry, Browse content in Earth Sciences and Geography, Browse content in Engineering and Technology, Civil Engineering, Surveying, and Building, Environmental Science, Engineering, and Technology, Conservation of the Environment (Environmental Science), Environmentalist and Conservationist Organizations (Environmental Science), Environmentalist Thought and Ideology (Environmental Science), Management of Land and Natural Resources (Environmental Science), Natural Disasters (Environmental Science), Pollution and Threats to the Environment (Environmental Science), Social Impact of Environmental Issues (Environmental Science), Neuroendocrinology and Autonomic Nervous System, Psychology of Human-Technology Interaction, Psychology Professional Development and Training, Browse content in Business and Management, Information and Communication Technologies, Browse content in Criminology and Criminal Justice, International and Comparative Criminology, Agricultural, Environmental, and Natural Resource Economics, Teaching of Specific Groups and Special Educational Needs, Conservation of the Environment (Social Science), Environmentalist Thought and Ideology (Social Science), Pollution and Threats to the Environment (Social Science), Social Impact of Environmental Issues (Social Science), Browse content in Interdisciplinary Studies, Museums, Libraries, and Information Sciences, Browse content in Regional and Area Studies, Browse content in Research and Information, Developmental and Physical Disabilities Social Work, Human Behaviour and the Social Environment, International and Global Issues in Social Work, Social Work Research and Evidence-based Practice, Social Stratification, Inequality, and Mobility, https://doi.org/10.1093/acprof:oso/9780199533169.001.0001, https://doi.org/10.1093/acprof:oso/9780199533169.003.0011. 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