القاعدة ذات الصلة
Spain
Practice Relating to Rule 7. The Principle of Distinction between Civilian Objects and Military Objectives
Spain’s LOAC Manual (1996) provides: “A fundamental element to be considered at all levels of planning, conduct and execution is the distinction between military objectives and non-military objectives.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 4.1.
Spain’s LOAC Manual (2007) states that “a fundamental principle that must be taken into account at all levels of the planning, command and execution of military operations is the need to distinguish between military objectives and … civilian objects”.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 4.1; see also §§ 1.3.b and 4.2.b.
Spain’s Royal Ordinances for the Armed Forces (2009) states: “In the conduct of any operation, [members of the armed forces] must take into account the principle of distinction … between civilian objects and military objectives in order to protect the civilian population.”
Spain, Royal Ordinances for the Armed Forces, 2009, Article 111.
The Report on the Practice of Spain considers that the principle of distinction between military and non-military objectives is a fundamental principle which should be taken into consideration when planning, directing and executing a military attack.
Report on the Practice of Spain, 1998, Chapter 1.3.
In 2010, in its report to the UN General Assembly on the status of the 1977 Additional Protocols, Spain stated:
Article 85 entitled “Principle of Humanity”, contained in Title IV on Operations [of the Royal Ordinances for the Armed Forces (2009)] clearly embodies the spirit of the [1949] Geneva Convention and its [1977] Additional Protocols, as it provides that “[the] … conduct [of members of the armed forces] in any conflict or military operation must conform to the applicable rules of the international treaties on international humanitarian law to which Spain is a party”.
That is further developed in Chapter VI on Ethics in Operations, which goes into specific duties under international humanitarian law … the principle of the distinction … between civilian property and military targets.
Spain, Report on the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, 5 May 2010, Section 2.
Humanitarian law is based on a number of fundamental principles. They are apparent in current treaties and customary law and express the core of humanitarian law. They concern the principles of distinction, proportionality and precaution, the prohibition on causing superfluous damage and unnecessary suffering and the principle of non-discrimination as well as the so called Martens Clause.
Sweden, Government Bill 2013/14:146 on criminal liability for genocide, crimes against humanity and war crimes, 20 February 2014, p. 33.
[D]uring hostilities in Gaza last summer, civilians, including children, bore the brunt of the suffering … hospitals and schools were severely damaged or destroyed, including UN facilities. …
These facts … are utterly disturbing and raise serious concern about the observance of the rules of international humanitarian law, including the [principle] of distinction … and respect for international human rights law.
Sweden, Statement by the permanent representative of Sweden at the UN Security Council Open Debate on Children and Armed Conflict made on behalf of Finland, Iceland, Norway and Sweden, 18 June 2015.
Spain’s LOAC Manual (1996) provides: “Military operations shall be directed only against military objectives.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 2.3.(b).1; see also §§ 4.1 and 4.5.(b)2.
Spain’s LOAC Manual (2007) states: “Military operations may only be directed against military objectives.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.3.b.(1); see also §§ 3.1.d.(2); 4.1, 4.5.b.(2).(a) and 10.3.e.(1).
In 2010, in the Couso case, which concerned the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America, the Criminal Chamber of Spain’s Supreme Court referred to norms of IHL relevant to the case under review, including Article 52(2) of the 1977 Additional Protocol I.
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 15.
In 1993 and 1995, the Government of Spain made specific statements in connection with the armed conflicts in the Gulf and Bosnia and Herzegovina, endorsing the principle that attacks must be directed only against military objectives.
Spain, Report by the Minister of Foreign Affairs and Minister of Defence to the Congress Commission on Foreign Affairs on Action by the International Community in Iraq and Developments in Bosnia and Herzegovina, 18 January 1993, Actividades, Textos y Documentos de la Política Exterior Española, Madrid, 1993, p. 240; Press Conference by the Minister of Foreign Affairs and Minister of Defence, 31 August 1995, Actividades, Textos y Documentos de la Política Exterior Española, Madrid, 1995, p. 248.
Spain’s LOAC Manual (1996) provides: “Civilian objects shall not be subjected to attacks.”
Spain’s LOAC Manual (2007) states: “Civilian objects must not be the object of attack.” Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 4.5.b.(2).b.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 4.5.b.(2).(b).
Spain’s Penal Code (1995) punishes
anyone who, during an armed conflict, … attacks … civilian objects of the adverse party causing their destruction, provided the objects do not, in the circumstances ruling at the time, offer a definite military advantage nor make an effective contribution to the military action of the adversary.
Spain, Penal Code, 1995, Article 613(1)(b).
Spain’s Penal Code (1995), as amended in 2010, states:
1. Anyone who in the event of an armed conflict commits or orders to be committed any of the following acts shall be punished with four to six years’ imprisonment:
…
d. Attacking, or making the object of … acts of hostility, … civilian objects of the adverse party, causing their destruction, provided that in the circumstances ruling at the time such property does not offer a definite military advantage nor makes an effective contribution to the military action of the adversary;
…
2. … In all other cases mentioned in the above article, the higher sentence can be imposed when extensive and important destructions are caused to the property, objects or installations or [the acts] are of extreme gravity.
Spain, Penal Code, 1995, as amended on 23 June 2010, Article 613(1)(d) and (2).
In 2010, in the Couso case, which concerned the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America, the Criminal Chamber of Spain’s Supreme Court referred to norms of IHL relevant to the case under review, including Article 57(5) of the 1977 Additional Protocol I.
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 15.
Spain’s Penal Code (1995), as amended in 2010, states:
1. Anyone who in the event of an armed conflict commits or orders to be committed any of the following acts shall be punished with four to six years’ imprisonment:
…
h. … [D]estroying non-military ships or aircraft and the cargo of an adverse or neutral party, or capturing them, in violation of international norms applicable to armed conflicts at sea;
…
2. … In all other cases mentioned in the above article, the higher sentence can be imposed when extensive and important destructions are caused to the property, objects or installations or [the acts] are of extreme gravity.
Spain, Penal Code, 1995, as amended on 23 June 2010, Article 613(1)(h) and (2).
