Rule 7. The Principle of Distinction between Civilian Objects and Military Objectives
Rule 7. The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects.
Volume II, Chapter 2, Section A.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. The three components of this rule are interrelated and the practice pertaining to each reinforces the validity of the others. Belligerent reprisals against civilian objects are discussed in Chapter 41.
This rule is codified in Articles 48 and 52(2) of Additional Protocol I, to which no reservations have been made.[1] At the Diplomatic Conference leading to the adoption of the Additional Protocols, Mexico stated that Article 52 was so essential that it “cannot be the subject of any reservations whatsoever since these would be inconsistent with the aim and purpose of Protocol I and undermine its basis”.[2] The prohibition on directing attacks against civilian objects is also set forth in Amended Protocol II and Protocol III to the Convention on Certain Conventional Weapons.[3] In addition, under the Statute of the International Criminal Court, “intentionally directing attacks against civilian objects, that is, objects which are not military objectives”, constitutes a war crime in international armed conflicts.[4]
The obligation to distinguish between civilian objects and military objectives and the prohibition on directing attacks against civilian objects is contained in a large number of military manuals.[5] Sweden’s IHL Manual, in particular, identifies the principle of distinction as set out in Article 48 of Additional Protocol I as a rule of customary international law.[6] Many States have adopted legislation making it an offence to attack civilian objects during armed conflict.[7] There are also numerous official statements invoking this rule.[8] This practice includes that of States not, or not at the time, party to Additional Protocol I.[9]
In their pleadings before the International Court of Justice in the Nuclear Weapons case, several States invoked the principle of distinction between civilian objects and military objectives.[10] In its advisory opinion, the Court stated that the principle of distinction was one of the “cardinal principles” of international humanitarian law and one of the “intransgressible principles of international customary law”.[11]
When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to respect the distinction between civilian objects and military objectives, the States concerned (Egypt, Iraq, Israel and the Syrian Arab Republic) replied favourably.[12]
The distinction between civilian objects and military objectives was included in the draft of Additional Protocol II but was dropped at the last moment as part of a package aimed at the adoption of a simplified text.[13] As a result, Additional Protocol II does not contain this principle nor the prohibition on directing attacks against civilian objects, even though it has been argued that the concept of general protection in Article 13(1) of Additional Protocol II is broad enough to cover it.[14] The prohibition on directing attacks against civilian objects has, however, been included in more recent treaty law applicable in non-international armed conflicts, namely Amended Protocol II to the Convention on Certain Conventional Weapons.[15] This prohibition is also contained in Protocol III to the Convention on Certain Conventional Weapons, which has been made applicable in non-international armed conflicts pursuant to an amendment of Article 1 of the Convention adopted by consensus in 2001.[16] In addition, the Second Protocol to the Hague Convention for the Protection of Cultural Property uses the principle of distinction between civilian objects and military objectives as a basis to define the protection due to cultural property in non-international armed conflicts.[17]
The Statute of the International Criminal Court does not explicitly define attacks on civilian objects as a war crime in non-international armed conflicts. It does, however, define the destruction of the property of an adversary as a war crime unless such destruction be “imperatively demanded by the necessities of the conflict”.[18] Therefore, an attack against a civilian object constitutes a war crime under the Statute inasmuch as such an attack is not imperatively demanded by the necessities of the conflict. The destruction of property is subject to Rule 50 and the practice establishing that rule also supports the existence of this rule. It is also relevant that the Statute defines attacks again installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission as a war crime in non-international armed conflicts, as long as these objects “are entitled to the protection given to … civilian objects under the international law of armed conflict”.[19]
In addition, the prohibition on directing attacks against civilian objects is included in other instruments pertaining also to non-international armed conflicts.[20]
The obligation to distinguish between civilian objects and military objectives and the prohibition on directing attacks against civilian objects is included in military manuals which are applicable in or have been applied in non-international armed conflicts.[21] Numerous States have adopted legislation making it an offence to attack civilian objects during any armed conflict.[22] There is also some national case-law based on this rule.[23] There are, furthermore, a number of official statements pertaining to non-international armed conflicts which refer to this rule.[24] The statements before the International Court of Justice in the Nuclear Weapons case referred to above were couched in general terms applicable in all armed conflicts.
No official contrary practice was found with respect to either international or non-international armed conflicts. States and international organizations have generally condemned alleged attacks against civilian objects, for example, during the conflicts in Bosnia and Herzegovina, Lebanon, Sudan and between Iran and Iraq.[25] As early as 1938, the Assembly of the League of Nations stated that “objectives aimed at from the air must be legitimate military objectives and must be identifiable”.[26] More recently, in a resolution on protection of civilians in armed conflicts adopted in 1999, the UN Security Council strongly condemned all “attacks on objects protected under international law”.[27]
The jurisprudence of the International Court of Justice and of the International Criminal Tribunal for the former Yugoslavia provides further evidence that the prohibition on attacking civilian objects is customary in both international and non-international armed conflicts.[28]
The Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999, requires that all parties to an armed conflict respect “the total ban on directing attacks … against civilian objects”.[29] The ICRC has called on parties to both international and non-international armed conflicts to respect the distinction between civilian objects and military objectives and not to direct attacks at civilian objects.[30]
Several States have stressed that the rule contained in Article 52(2) of Additional Protocol I, which provides that “attacks shall be limited strictly to military objectives”, only prohibits direct attacks against civilian objects and does not deal with the question of incidental damage resulting from attacks directed against military objectives.[31] The purpose of these statements is to emphasize that an attack which affects civilian objects is not unlawful as long as it is directed against a military objective and the incidental damage to civilian objects is not excessive. This consideration is taken into account in the formulation of the current rule by the use of the words “attacks directed against”. The same consideration applies mutatis mutandis to Rule 1.
[1] Additional Protocol I, Article 48 (adopted by consensus) (cited in Vol. II, Ch. 2, § 1) and Article 52(2) (adopted by 79 votes in favour, none against and 7 abstentions) (ibid., § 50).
[2] Mexico, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols (ibid., § 79).
[3] Amended Protocol II to the Convention on Certain Conventional Weapons, Article 3(7) (ibid., § 107); Protocol III to the Convention on Certain Conventional Weapons, Article 2(1) (ibid., § 106).
[4] ICC Statute, Article 8(2)(b)(ii) (ibid., § 108).
[5] See, e.g., the military manuals of Argentina, Australia, Belgium, Benin, Cameroon, Canada, Croatia, France, Germany, Hungary, Israel, Netherlands, New Zealand, Nigeria, Philippines, Spain, Sweden, Switzerland, Togo and United States (ibid., § 7), Indonesia (ibid., § 8), Sweden (
ibid., § 9), Argentina, Australia, Belgium, Benin, Cameroon, Canada, Colombia, Croatia, Ecuador, France, Germany, Italy, Kenya, Lebanon, Madagascar, Netherlands, New Zealand, Nigeria, South Africa, Spain, Togo, United Kingdom, United States and Yugoslavia (ibid., § 115), Argentina (ibid., § 116) and United States (ibid., § 117).
[6] Sweden, IHL Manual (ibid., § 9).
[7] See, e.g., the legislation of Australia (ibid., § 119), Azerbaijan (ibid., § 120), Canada (ibid., § 122), Congo (ibid., § 123), Croatia (ibid., § 124), Estonia (ibid., § 126), Georgia (ibid., § 127), Germany (ibid., § 128), Hungary (ibid., § 129), Ireland (ibid., § 130), Italy (ibid., § 131), Mali (ibid., § 132), Netherlands (ibid., § 133), New Zealand (ibid., § 134), Norway (ibid., § 136), Slovakia (ibid., § 137), Spain (ibid., § 138), United Kingdom (ibid., § 140) and Yemen (ibid., § 141); see also the draft legislation of Argentina (ibid., § 118), Burundi (ibid., § 121), El Salvador (ibid., § 125), Nicaragua (ibid., § 135) and Trinidad and Tobago (ibid., § 139).
[8] See, e.g., the statements of Croatia (ibid., 145), Egypt (ibid., § 146), EC and its member States, USSR and United States (ibid., § 147), France (ibid., § 148), Iran (ibid., § 149), Iraq (ibid., § 150), Mexico (ibid., § 151), Mozambique (ibid., § 152), Slovenia (ibid., § 155), Sweden (ibid., § 156), United Arab Emirates (ibid., § 157), United Kingdom (ibid., §§ 158–159) and United States (ibid., §§ 160–163).
[9] See, e.g., the practice of Egypt (ibid., § 146), France (ibid., §§ 7, 115 and 148), Indonesia (ibid., § 8), Islamic Republic of Iran (ibid., § 149), Iraq (ibid., § 150), Kenya (ibid., § 115), United Kingdom (ibid., §§ 115 and 158–159) and United States (ibid., §§ 7, 115, 117 and 160–163).
[10] See the pleadings before the ICJ in the Nuclear Weapons case by Egypt (ibid., § 16), Iran (ibid., § 23), Japan (ibid., § 25), Sweden (ibid., § 156) and United Kingdom (ibid., § 32).
[11] ICJ, Nuclear Weapons case, Advisory Opinion (ibid., § 179).
[12] See ICRC, The International Committee’s Action in the Middle East (ibid., § 102).
[13] Draft Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to the adoption of the Additional Protocols, Article 24(1) (ibid., § 2).
[14] Michael Bothe, Karl Joseph Partsch, Waldemar A. Solf (eds.), New Rules for Victims of Armed Conflicts, Martinus Nijhoff, The Hague, 1982, p. 677.
[15] Amended Protocol II to the Convention on Certain Conventional Weapons, Article 3(7) (cited in Vol. II, Ch. 2, § 107).
[16] Protocol III to the Convention on Certain Conventional Weapons, Article 2(1) (ibid., § 106).
[17] Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 6(a) (cited in Vol. II, Ch. 12, § 21).
[18] ICC Statute, Article 8(2)(e)(xii).
[19] ICC Statute, Article 8(2)(e)(iii).
[20] See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, § 6 (cited in Vol. II, Ch. 2, §§ 3, 60 and 111); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, § 2.5 (ibid., §§ 4, 61 and 112); San Remo Manual, §§ 39 and 41 (ibid., §§ 5 and 62); UN Secretary-General’s Bulletin, Section 5.1 (ibid., §§ 6, 63 and 113); Cairo Declaration on Human Rights in Islam, Article 3(b) (ibid., § 109); Hague Statement on Respect for Humanitarian Principles (ibid., § 110).
[21] See, e.g., the military manuals of Benin, Croatia, Germany, Nigeria, Philippines and Togo (ibid., § 7) and Benin, Colombia, Croatia, Ecuador, Germany, Italy, Kenya, Lebanon, Madagascar, South Africa, Togo and Yugoslavia (ibid., § 115).
[22] See, e.g., the legislation of Australia (ibid., § 119), Azerbaijan (ibid., § 120), Canada (ibid., § 122), Congo (ibid., § 123), Croatia (ibid., § 124), Estonia (ibid., § 126), Georgia (ibid., § 127), Germany (ibid., § 128), New Zealand (ibid., § 134), Norway (ibid., § 136), Spain (ibid., § 138) and United Kingdom (ibid., § 140); see also the legislation of Hungary (ibid., § 129), Italy (ibid., § 131) and Slovakia (ibid., § 137), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 118), Burundi (ibid., § 121), El Salvador (ibid., § 125), Nicaragua (ibid., § 135) and Trinidad and Tobago (ibid., § 139).
[23] See, e.g., Colombia, Administrative Case No. 9276 (ibid., § 142); Croatia, RA. R. case (ibid., § 143).
[24] See the statements of the EC and its member States (ibid., § 147) and of Mozambique (ibid., § 152), Slovenia (ibid., § 155), USSR (ibid., § 147) and United States (ibid., § 147).
[25] See, e.g., the statements of the EC and its member States (ibid., § 147) and of Croatia (ibid., § 145), Egypt (ibid., § 146), Islamic Republic of Iran (ibid., § 149), Slovenia (ibid., § 155), USSR (ibid., § 147), United States (ibid., § 147) and United Kingdom (ibid., § 159); UN Security Council, Res. 1052 (ibid., § 164); UN General Assembly, Res. 50/193 (ibid., 168) and Res. 51/112 (ibid., § 169); UN Commission on Human Rights, Res. 1993/7 (ibid., § 170), Res. 1994/75 (ibid., § 171) and Res. 1995/89 (ibid., § 173); Contact Group of the OIC (Egypt, Islamic Republic of Iran, Pakistan, Saudi Arabia, Senegal and Turkey), Letter to the President of the UN Security Council (ibid., § 177).
[26] League of Nations, Assembly, Resolution adopted on 30 September 1938 (ibid., § 167).
[27] UN Security Council, Res. 1265 (ibid., § 165).
[28] ICJ, Nuclear Weapons case, Advisory Opinion (ibid., § 179); ICTY, Kupreškić case, Judgment (ibid., § 180) and Kordić and Čerkez case, Decision on the Joint Defence Motion and Judgment (ibid., § 182).
[29] 27th International Conference of the Red Cross and Red Crescent, Plan of Action for the years 2000–2003 (adopted by consensus) (ibid., § 178).
[30] See, e.g., the practice of the ICRC (ibid., §§ 185–186 and 188–193).
[31] See the reservations and declarations made upon ratification of the 1977 Additional Protocols and other statements by Australia (ibid., § 51), Canada (ibid., §§ 52 and 71), France (ibid., § 53), Federal Republic of Germany (ibid., § 75), Italy (ibid., § 54), Netherlands (ibid., § 80), New Zealand (ibid., § 55), United Kingdom (ibid., §§ 56 and 86) and United States (ibid., § 92).
