The principle of distinction between civilians and combatants
The Oxford handbook of international law in armed conflict
Oxford : Oxford University Press, 2014
Today, the majority of armed conflicts are of a non-international character, that is to say, they involve at least one belligerent party composed entirely of non-state actors, whose organization, equipment, training, and discipline rarely match those of state armed forces. At the same time, there has been a continuous shift of military operations into civilian population centres. The ensuing intermingling of armed actors with the civilian population has not only exposed the latter to increased collateral dangers, but has also facilitated the involvement of civilians themselves in activities more closely related to military operations, from providing food, shelter, equipment, and intelligence to combatants, up to direct participation in combat. Even more recently, the increased outsourcing of traditionally military functions has inserted numerous private contractors and civilian intelligence personnel or other civilian government employees into the modern battlefield. Moreover, con temporary military operations often attain an unprecedented level of complexity, involving the coordination of a great variety of interdependent human and technical resources in different locations. All of these factors have caused confusion and uncertainty as to the distinction between legitimate military targets and persons protected against direct attacks. These difficulties are further aggravated where combatants do not distinguish themselves from the civilian population, for example during undercover military operations or when acting as farmers by day and fighters by night. As a result, civilians are more likely to fall victim to erroneous or arbitrary targeting, while armed forces—unable to properly identify their adversary—bear an increased risk of being attacked by persons they cannot distinguish from the civilian population. This trend, which threatens to undermine some of the most fundamental achievements made in ‘humanizing’ warfare, calls for a careful analysis of the legal concepts and rationale underlying the principle of distinction with a view to clarifying its meaning in light of the circumstances prevailing in contemporary armed conflicts.
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