Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants
Section A. The principle of distinction
Germany’s Military Manual (1992) states that it is prohibited “to injure military objectives, civilians, or civilian objects without distinction”.
In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated:
Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst
) Klein and Company Sergeant Major (Hauptfeldwebel
) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter.
The Federal Prosecutor General further stated that “the principle of distinction … is generally recognized as customary international law”.
In examining murder under Germany’s Penal Code, the Federal Prosecutor General also stated:
Colonel (Oberst) Klein’s actions were lawful under international law and therefore justified under domestic criminal law [hence not constituting murder] …
In the assessment of the lawfulness of military attacks in non-international armed conflict which result in the killing of persons, the victims’ status under the international law of armed conflict is of particular relevance. One must distinguish whether the victims are armed fighters of the adverse party, civilians directly participating in hostilities, or other civilians.
In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) titled “Killing of German nationals by a US drone attack – Intervention of the German judiciary”, Germany’s Federal Government wrote:
15. How does the Federal Government evaluate the legality of acts of targeted killing of persons within the context of international and non-international armed conflicts …?
International humanitarian law distinguishes in international and non-international armed conflicts between, on the one hand, armed forces opposing one another (international armed conflict) or armed forces and opposed organized armed groups (non-international [armed conflict]) and, on the other hand, civilians.
While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …
… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality.