Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants
Section A. The principle of distinction
Switzerland’s Basic Military Manual (1987) states: “The Parties to the conflict must at all times make a distinction between the civilian population and combatant troops.”
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
12 The four basic principles of the international law of armed conflict
- the principle of distinction;
12.1 The principle of distinction
159 Hostilities must be directed exclusively against combatants and military objectives. Respect for this rule is only possible if combatants and military objectives can be distinguished from protected persons and objects. Such means include wearing a uniform or at least openly bearing weapons while engaged in an attack.
In 2009, in its Strategy on the Protection of Civilians in Armed Conflict 2009–2012, Switzerland’s Federal Department of Foreign Affairs stated: “The fundamental principle of distinction between civilians and combatants and between civilian objects and military objectives is often challenged with severe impact for the civilian populations.”
Switzerland’s ABC of International Humanitarian Law (2009) states:
Conduct of hostilities
Not all Means and methods of warfare are allowed in an Armed conflict. International humanitarian law stipulates the military operations, tactics and weapons that are permissible. The two generally accepted principles of Distinction and Proportionality are the basis for a number of specific rules such as the prohibition of direct attacks on the civilian population or on Civilian objects, the prohibition of indiscriminate attacks and the obligation to adopt precautionary measures (Precaution) so as to avoid or limit casualties among Civilians and damage to civilian objects to the greatest possible extent.
International humanitarian law protects the civilian population and prohibits attacks against Civilians
and Civilian objects
. One of its ground rules is the principle of distinction: the parties to a conflict are obliged to conduct military operations exclusively against Military
objectives and must therefore always distinguish between Civilians
as well as between Civilian objects
and Military objectives
. The principle of distinction imposes limits on means and methods of warfare: any Weapon
or strategy that cannot be directed exclusively at a specific military objective is prohibited.
[emphasis in original]
In 2009, in a statement during a UN Security Council open debate on the protection of civilians in armed conflict, the permanent representative of Switzerland stated:
The current situation in Gaza cries out to us the importance of the issue we are discussing today. The main victims of the Israeli-Palestinian conflict are civilians. Switzerland is deeply shocked by the very high number of civilians that have been killed or wounded in this conflict, and in particular the high number of child victims. …
Switzerland therefore reiterates its call for … strict compliance with international law by all parties to the conflict. This includes in particular the obligation to respect the principles of distinction, proportionality and precaution.
In 2010, in its objection to the reservation by the United States of America to the 1980 Protocol III to the Convention on Certain Conventional Weapons, Switzerland stated:
Upon depositing the instrument of ratification of Protocol III to the Convention on Certain Conventional Weapons on 21 January 2009, the United States of America made a reservation with reference to paragraphs 2 and 3 of article 2 of the said Protocol. According to the reservation, the United States
“reserve[s] the right to use incendiary weapons against military objectives located in concentrations of civilians where it is judged that such use would cause fewer casualties and/or less collateral damage than alternative weapons, but in so doing will take all feasible precautions with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”.
Switzerland appreciates the willingness expressed by the United States to take all feasible precautions to protect the civilian population and individual civilians not directly participating in hostilities. Switzerland considers that these measures are in keeping with the fundamental principle of distinction under international humanitarian law, a principle that is enshrined, in particular, in articles 57 (2) (ii) and 57 (4) of the first 1977 Protocol Additional to the Geneva Conventions of 1949. …
Nonetheless, Switzerland considers that the reservation made by the United States is incompatible with the object and purpose of Protocol III, and therefore it objects to the reservation for the following reasons: …
Switzerland considers that this objection does not constitute an obstacle to the entry into force of Protocol III as between Switzerland and the United States of America.
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.2 Increasing technification of war
… The weapon technologies used do not call into question the applicable principles of international humanitarian law. In fact, the use of weapons by parties to a conflict must respect the principle of distinction between combatants and civilians; the latter must be protected and in no case made the object of attacks. … These fundamental principles are always applicable to all types and systems of weapons. …
3.3 Increasing use of guerrilla tactics…
The appearance of non-State actors technically inferior to their government adversaries has favoured the growth of guerrilla tactics. …With this in mind, the civilian population is of a twofold interest in the eyes [of the weaker of the adversaries], on one hand as a place of retreat and combat base, on the other hand as a target of attacks.
In summary, it can be said that almost all the scenarios of guerrilla tactics violate the obligation of distinction. …
3.5 Moving of zones of combat towards the civilian population
There is no doubt that persons not involved in the war were already in the past victims of the suffering and horrors linked to conflicts, but the progressive merging of civilian and military spaces hampers the principle of distinction even more. …
4 Possibilities of international humanitarian law development
As the preceding analysis underlines, international humanitarian law maintains its relevance for most of the aspects of current armed conflicts. The fundamental principles such as distinction and proportionality remain valid in guerrilla wars, which represent today the main form of conducting war. These principles represent a permanent requirement that cannot be called into question, not even by notorious non-respect by the parties to a conflict.
[footnotes in original omitted]
In 2012, Switzerland’s Federal Department of Foreign Affairs issued a press release entitled “Appeal by the Swiss authorities for compliance with international humanitarian law in Syria”, which stated:
International humanitarian law is applicable to non-international armed conflict.
4. International humanitarian law is applicable in non-international armed conflicts. All parties to the conflict are therefore obliged to respect its rules in all circumstances, including the rules protecting persons who are [not] or are no [longer] participating in the hostilities, as well as the rules relative to the means and methods of warfare.
Appeal to respect international rules
7. [Switzerland] recalls that in the conduct of military operations, all feasible precautions must be taken with a view to avoid incidental loss of civilian life[,] injury to civilians and damage to civilian objects and collateral damage to civilian property. All parties are subject to the obligation to respect the principles of distinction, proportionality and precaution.
In 2013, in answer to an interpellation in Parliament regarding the use of drones, Switzerland’s Federal Council stated:
In armed conflicts, strikes carried out with armed drones must respect the rules of the conduct of hostilities as stipulated by international humanitarian law, including the principles of distinction, proportionality and precaution, and must therefore not be directed against civilians or civilian objects. For each strike, it is thus necessary to verify that these principles were respected.
In 2013, in a statement at the Meeting of the High Contracting Parties to the 1980 Convention on Certain Conventional Weapons, the permanent representative of Switzerland stated:
The community of States cannot remain indifferent to the human suffering caused by armed conflicts. It was in direct response to this fundamental concern that the CCW [1980 Convention on Certain Conventional Weapons] and its protocols were adopted, with a view to prohibiting or limiting the use of certain specific types of weapons known to inflict superfluous injury or unnecessary suffering, or to strike indiscriminately.
In this regard, Switzerland is deeply concerned by the alleged use of weapons in Syria falling within the ambit of the CCW and its respective protocols, such as the alleged use of anti-personnel mines as well as the alleged use of incendiary weapons in populated areas causing severe human suffering. We call upon all parties to the conflict to comply with their obligations under international law, in particular the principles of distinction, precaution, and proportionality.