The Principle of Distinction, Proportionality, Necessity and Precaution

International humanitarian law of armed conflicts just like other aspects of international law does not just exist in vacuum. It is underscored by certain concepts and principles. These principles form the basis upon which the objective of the law of conflicts is established. Even before the formal establishment of the law of conflicts, some of these concepts and principles were already in existence. In essence, many of these principles which define the scope of the law of armed conflicts are derived from the rules of customary international humanitarian law.

Among the several concepts and principles of the law of armed conflicts, the most prominent are the principles of distinction, proportionality, necessity and precaution (otherwise known as the principle of humanity). These aforementioned basic principles constitute the framework of concepts that drive the course of international humanitarian law of armed conflicts globally.

Hence, in order to enhance an understanding of their significance and contribution to the structure of international humanitarian law, they shall be individually dwelled upon.

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THE PRINCIPLE OF DISTINCTION.

The principle of distinction defines the bounds of attacks and regulates the objects of target in the law of armed conflicts. It involves with the separation of combatants (military personnel) from civilians. While combatants are recognized as legitimate objects of target, civilians are legally protected and immune from attacks in armed conflicts.

The principle of distinguishing between civilians and combatants was first set forth in the St. Petersburg Declaration, which states that “the only legitimate object which states should endeavor to accomplish during war is to awaken the military forces of the enemy”. The Hague Regulations do not as such specify that a distinction must be made between civilians and combatants, but Article 25, which prohibits “the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended”, is based on this principle.

The principle of distinction is enunciated in Article 48 of Additional Protocol I: “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 and accordingly shall direct their operations only against military objects.”

Civilian objects as stated in the above quoted additional protocol refers to properties that are not used for military purposes, i.e. residential houses, schools, worship centers, hospitals, and the likes; military objectives on the other hand refers to facilities or equipment that are instrumental to the orchestration of military operations, i.e. military base, infantry, etc.

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Military installations must not be located in civilian-dense areas as a means to immunize them from attack. This provision is contained in Article 58(b) of Protocol I, which provides that parties to the conflict “shall, to the maximum extent feasible … avoid locating military objectives within or near densely populated areas. The cardinal reason behind the vehement stance against locating military objectives close to military objectives is to avoid perfidy – combatants hiding themselves or ammunition in civilian environment so as to evade attacks.

The principle of distinction is impinging on other principles of international humanitarian law as other principles are imbued with the preponderance of its dictates.

THE PRINCIPLE OF PROPORTIONALITY

The international humanitarian law rule of proportionality in attacks holds that in the conduct of hostilities during an armed conflict, parties to the conflict must not launch an attack against lawful military objectives if the attacks ‘may be expected’ to result in excessive civilian harm (deaths, injuries, or damage to civilian objects, or a combination thereof) compared to the ‘concrete and direct military advantage anticipated’.

Proportionality is closely linked to the principles of distinction and necessity, in that it seeks to limit, as far as possible, damage, injury and death to civilians and civilian objects, while still allowing for the needs of the military campaign to be met.

THE PRINCIPLE OF NECESSITY

Acts of violence, killing and destruction are not justified morally. However, in the law of armed conflicts, resort to violence is justified and considered appropriate in certain instances. This justification of certain acts of violence is the premise upon which the principle of necessity is rooted. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.

The “principle of military necessary” permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law.65 In case of an armed conflict, the only legitimate military purpose is to weaken the military capacity of the other parties to the conflict.

Contrariwise, the principle of military necessity is not without limitations as to its application. Hence, the armed forces would be acting outside the bounds of the law of armed conflict if attacks on a target are:

  • unnecessary – the target or victims were not linked to a specific military objective;
  • disproportionate – the military advantage was not proportionate to the collateral damage to civilians;
  • indiscriminate – the attack did not distinguish between military objectives and civilian objects;
  • aimed at spreading terror among the civilian population.

THE PRINCIPLE OF PRECAUTION

The principle of precaution stipulates that parties to an armed conflict should take all feasible safeguards in ensuring that attacks launched on enemy targets do not affect civilian population and civilian objects within the vicinity of attack. The legal basis for the principle of precautions is contained in Article 58(c) of Additional Protocol I.

Apart from Article 58(c), several military manuals have enshrined this principle that all feasible precautions to protect the civilian population and civilian objects under their control against the effects of attacks. Although this principle is provided strictly by the Additional Protocol I which relates only to international armed conflicts, in state practice this rule is a norm of customary international law applicable even in non-international armed conflicts.

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