The Encyclopedia is a project of the Geneva Academy of International Humanitarian Law and Human Rights launched on 2 December 2013. The Enyclopedia aims to provide accurate, up-to-date information on weapons, the effects of their use, and their regulation under public international law, in a format that is accessible to non-specialists.+ Find out more
The rule of distinction — the duty to distinguish in attacks between lawful military objectives on the one hand (e.g. combatants and military materiel) and civilians and civilian objects on the other — can be considered the most fundamental of all international humanitarian law (IHL) rules governing the conduct of hostilities. Its application and respect in international armed conflict are generally more straightforward than in non-international armed conflict. In any armed conflict the use of an inherently indiscriminate weapon violates the rule of distinction.
In any armed conflict, only military objectives, including civilians ‘participating directly in hostilities’, may lawfully be targeted by attacks, in accordance with customary IHL. Continuing uncertainty, though, enshrouds the notion of who may be lawfully targeted by a state in a non-international armed conflict. The International Committee of the Red Cross (ICRC)’s Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law is highly controversial in this regard, including the assertion that (military) members of organized armed groups that are a party to a non-international armed conflict fulfil the criteria for being lawfully targeted on the basis of a claimed ‘continuous combat function’.See Nils Melzer, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’, ICRC, Geneva, 2009, pp. 30–1. ‘The term organized armed group … refers exclusively to the armed or military wing of a non-State party: its armed forces in a functional sense.’ Ibid., p. 32. According to the ICRC, those who exercise such a continuous combat function may, in principle, be targeted by lethal attacks at any time (though some states, including the United States of America,According to the US Attorney General, Eric Holder, "Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force. The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering." "Attorney General Eric Holder Speaks at Northwestern University School of Law", Chicago, 5 March 2012, available on US Department of Justice website at: http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html. argue that this general permissiveness is subject to a restrictive principle of military necessity; and observance of Principle 9 of the Interpretive Guidance would require that a combatant or a civilian participating directly in hostilities be captured rather than killed, where it is feasible to do so).
Last updated on: 30 November 2013