Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants
Section A. The principle of distinction
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
In 2008, in a joint cost benefit analysis of a possible introduction of a national moratorium on all cluster munitions, Denmark’s Ministry of Defence and Ministry of Foreign Affairs stated:
[The] provisions, which are outlined below, are generally recognized as being an expression of customary international law. …
The purpose of international humanitarian law is to protect the victims of war as much as possible. The central provision in this regard is API [1977 Additional Protocol I] Article 48, which states that:
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 objectives.
It follows from API that military attacks that do not respect the distinction between civilians and military targets are illegal.