The principle of distinction in the Law of war ought to be enforced and legalized internationally and nationally

By Peter Reat Gatkuoth Both

“The chain reaction of evil — conflicts producing more wars — must be broken or we shall be plunged into the dark abyss of annihilation”(Martin Luther King, Jr).

March 3, 2013 (SSNA) — In these recent centuries, there has been an increased international and national concern over the impact of conflicts and wars associated concerns on the civilian populations. These wars and unplanned attacks on the civilian territories had brought the global society to experience an unimaginable destruction. This destruction has caused a great atrocity to the civilian as a result of indiscriminate attacks on the civilian dwelling centers that were connected with the military garrisons. In most cases, surprise attacks always resulted in heavy casualties especially to the innocent civilians in the villages or towns because they are always not aware of ongoing dispute between the warring parties.

The reciprocity and the principle of distinctions are of central importance in the conflicts scenario that involved non-state actors. Reciprocity in international law “refers to the expectation by belligerent states that other state parties to a conflict should respect similar and behavioural norms” such as non-use of prohibited weaponry, minimization of collateral damage, inhumane treatment of prisoners of war while Principle of distinction is “a legal concept proved by the international law society, and it imposes on commanders and soldiers the duty to distinguish military objects from the civilians objects.” Therefore, in an attempt to reflect on this commentary concept, the scope of this article argued that the principle of distinction is a legal framework, set forth for the improved protection of civilian populations – an understanding that allows for the greater application of international humanitarian law to the non-state actors.

“The principle of distinction is the cornerstone of the set of rules or norms of international Humanitarian law regulating the manner in which hostilities must be conducted.” It holds that civilians and combatants are clearly distinguishable protagonists on or near the battlefield. “This tendency exists not only in relations to non-international armed conflicts that take place within the territory of state, but also with regard to international armed conflicts, resulting from the third States.” Although violation of this principle of distinction from the combatants is clearly acknowledged in many cases such as the attacks of Donja Vieceriska in April 1993 by HVO (Bosnian-Croat Armed forces); the law of war as a system of military legal rule, regulated that “technical limits, at which necessities of war sought to yield the requirement of humanity,” ought to be respected as indicated in the legal procedure in international humanitarian law.

It worth knowing though that this principle of distinction in military operations have always been a steps to be taken in order to ensure the “principles of humanity, precaution and principles of discrimination and proportionality” when military personnel are conducting war or war associated actions in order to fulfill the expectations of civilians’ safety and protection of the others in army conflicts. Bosnian-Croat armed forces had once shown a severe example when they attacked many villages and killed “172 Bosnian-Muslim and destroyed 420 buildings.”

This massive violence or ethnic cleansing campaigns against Bosnian-Muslim civilian violated the first Additional Protocol of Geneva convention, art 48 which indicated that “in order to ensure respect, 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 objects, and accordingly shall direct their operations only against military objectives or target.” Note that this provision sets out a dual obligation. The first is that the attackers must always distinguish between its own combatants and its own civilian populations. The responders must then direct its operations only against combatants and not civilians or civilians’ properties.

But in a nutshell and as an example to elaborate this commentary concept, the Bosnian-Croat armed forces finally failed not to distinguish between their own combatants and the civilians. The forces intentionally targeted the civilian population’s objects and failed to see the civilians as humanitarian agencies might wish them to do so, either because they decided that, innocent or not, killing the civilians is useful, mercy and perhaps necessary as a part of their “ethnic cleansing campaign” or inevitable options in their wars choice. Wider shocks at that time frame of the conflict remain often the hardest part for the poor Bosnian-Muslim community especially when their villages are repeatedly attacked and burn into ashes persistently. The Bosnian-Croat armed forces insisted on attacking and carried on, capturing towns while burning the villagers’ properties to ashes without limits on the conduct of warfare. This clearly demonstrated that not all national armed forces in the world are aware of the principle of humanity to protect human persons in a complex situation.

It was noticed that the forces did not recognize and accept the principle of distinction or the rule of engagement. They forced all the villagers by burning their houses, Mosques and churches across the dwelling centers. This act of burning mosque, churches and residential areas violated the first protocol, art 53 (a) that clearly stated that “all forces are prohibited to commit any acts of hostilities directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of the people.”

Notwithstanding though that the precaution in principles of humanity and distinction always highlighted and “prohibited the use of weapons that cause superfluous injuries such as poisoned projectiles, dum, dum bullets and so forth.” According to the international law perspective, “the contracting parties must always agree to abstain from the use of bullets which expand or flatten easily in the human body; for instance, the bullets with hard envelope which does not easily cover the core or is pierced with incision.” The international military norms/rule stated that military operation should always aim at the target and differentiate the civilian from the combatants, simply because of the above concerns. This essence is one of good example of the principle of precaution that established the regulations that a “states must never use a weapons that are incapable of distinguishing between civilians and military objects such as shelling the villages or bombarding the congregated dwelling centers where vulnerable members dwell. Instantly, few cases and materials of international law study indicated that even the NATO forces had once violated such an international humanitarian law “when they attacked the federal Republic of Yugoslavia in the spring of 1999 to enforce a solution to the dispute over Kosovo.”

In the aftermath of the war over Kosovo, many questions arose regarding their compliance with international Humanitarian standard and expectations because there were many casualties during their first bombardment against the civilians, simply because they had incapably distinguished the civilians and military objects. In their first two months of aerial bombardment attacks, NATO forces had “killed 500 civilians and wounded 800 people on ground.” This aerial bombardment of NATO forces against the Yugoslavia clearly violated the principle of distinctions stated in the first protocol; that “any attack directed against civilian might be considered an indiscriminate attack.” This aerial bombardment in the spring of 1999 “caused a severe incidental loss of civilian lives, injury to civilians or damage to civilian objects and properties which would be excessive in relation to the concrete and direct military advantage anticipated.”

Although the NATO force intervened for the reasons to protect the civilians from the guerrilla forces as illustrated in the “responsibility to protect charter”, this act of aerial bombardment violated the first protocol, art 51 that indicated that “the civilian population and an individual civilian shall enjoy general protect against the danger arising from military operations and shall not be the objects of attack.” NATO interest at the time was to rescue the innocent children as indicated in UN security council resolutions; hence, the Yugoslavia civilians became subjected to maltreatment even when they adopted a zero-casualties strategy, which meant that the bombardment should be undertaken from height at which NATO aircrafts could not be hit by the enemy. The number of casualties increased higher as well than the first few months because of disproportional action taken in the height as to secure the safety of NATO pilots and aircrafts.

In the first Protocol to the Geneva Conventions on the Laws of War which prohibits indiscriminate attacks, the principle of proportionality dictates that “launching an attack, which may be expected to cause incidental loss of civilian lives, injury to civilians, damage to civilian objects/properties or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.” Although in some instance, there are noticed unusual circumstances that the military forces are exposed; “proportionality is not a separate legal standard but ways in which a military commanders may assess his/her obligations as to the Law of armed conflict principle of distinction while avoiding actions that are indiscriminate.”

It should be an international call with consequences or sanction thereof that the methods and the means to fight has to be in standard of the Law of armed conflict although some wars usually forced the armed forces to conduct war with the tension to inflict pain or cause a big destruction as to win the war. This is in reference to the current terrorists war of our modern time where some states attacks the other states with the notion of causing a great pain to the states that they deem practicing and supporting the terrorists activities such as in Afghanistan.

In this scenario, Civilians always pay the price or become the victims of military operations because few armies usually do not want to fight a war in absent of the civilians. They sometimes used civilian as shield, and few militias group always like to be with the civilians even if it’s a time of operation for some reasons. If the international community and particularly, leaders of nationalities are serious about the safety of harmless civilians, then they must enforce these norms as a legal military system with severe consequences to the violators in particular. They must train the national army and put it forth as a law that the principle of proportionality must be highly expected from all parties involving in any conflict, and all of them regardless of their status as international, national or unconfirmed groups should always be required to “take all feasible precaution training and orientations in the choice of means and methods of attacks with the view to avoid incidental loss of the innocent civilians’ live.”

For instance, the WWI and the WWII are good examples to human and environmental destruction. This indiscriminate attacks of the two world Wars had brought a great adverse and severe effect to the lives of innocent civilians and therefore, it is of great interest to lawmakers, human rights activists, social activists and academia that any armed forces must always follow the military principle of distinction during an armed conflict, locally, nationally and internationally in order to limits the damage and suffering caused by conflicts. This includes “the protection of the victims and POWs of armed conflicts and in particular, those who reside in areas under the control of a party to the conflict to which they are not affiliated.”

In summary, the principle of distinction is a legal framework for any combatants that ought to be enforced worldwide to the men and women in uniforms. It regulates and prohibited all means and methods that cannot make a distinction between the civilians and those who take part in hostilities. It calls upon all combatants that the civilians and combatants must be distinguishable protagonists on or near the battlefield. “This tendency exists not only in relations to non-international armed conflicts that take place within the territory of state, but also with regard to international armed conflicts resulting from third States.” In the legal perspectives (principle of distinction) any attacks to the other State must have a “common agreement, fixed the technical limits at which the necessities of war ought to yield to the requirements of humanity.” Although the world is changing as technology is rapidly changing the lifestyle of all human being, our old traditional lifestyle taught us (this is in African perspective) that battlefields should always be distanced from vulnerable groups, women, children or non-participants in conflict.

In most instance and in the interest of the people, the contracting or acceding parties usually reserve to themselves to come hereafter to an understanding whenever or wherever a precise proposition shall be drawn up in view of future improvements which may effect in the armament of troops, in order to maintain the principles of distinction which they have established and to conciliate the necessities of war with the laws of humanity. In this perspective, President Clinton had once said it right that “we must always use military force selectively, recognizing that its use may do no more harms than provide a window of opportunity for a society and diplomacy to work. We; therefore, will send American troops abroad only when our interests and our values are sufficiently at stake. When we do so, it will be with clear objectives to which we are firmly committed and when combat is likely—we have the means to achieve decisively.” These requirements are as pertinent for humanitarian and other non-traditional interventions today as they were for previous generations during prolonged world wars.

Ubuntu Regards,

The author of this article is planning to write an article within few weeks to come, entitled “The responsibility to protect the citizens: An expectation that the international community wish South Sudan Government to perform in its national situation.” He holds a BA, and MA in International Law and Human Rights. He can be contacted at [email protected] or visit his commentaries site @

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