Not All Civilians Are Created Equal: The Principle of Distinction, the Question of Direct Participation in Hostilities and Evolving Restraints on the Use of Force in Warfare

• Author: Trevor A. Keck
• Position: Recent graduate of the Fletcher School of Law and Diplomacy at Tufts University, where he focused on International Security and Public International Law
• Pages: 115-178

2012] RESTRAINTS ON THE USE OF FORCE 115

NOT ALL CIVILIANS ARE CREATED EQUAL:

THE PRINCIPLE OF DISTINCTION, THE QUESTION OF

DIRECT PARTICIPATION IN HOSTILITIES AND EVOLVING

RESTRAINTS ON THE USE OF FORCE IN WARFARE

TREVOR A. KECK

I. Introduction

Warfare is fundamentally different today than in 1949 when states

convened to draft and sign the four Geneva Conventions, which provided

the foundation for the laws of war or international humanitarian law

(IHL). After two horrific World Wars, inter-state conflict was the

fundamental challenge to global peace and security at the time.

Accordingly, the post-war global governance structure and the laws of

war were primarily developed to regulate state-to-state war.

Today, states primarily fight wars against non-state armed groups

(NSAG). These are often referred to as “asymmetric conflicts,” due to

the fact that the state often enjoys superior technology, training and

manpower. To stand a chance against states with superior militaries,

NSAGs often violate IHL, and more specifically the principle of

distinction, by refusing to distinguish themselves from the civilian

population. Due to the asymmetry of power, blending in with

noncombatants is often a critical part of the NSAG’s strategy in places

such as Afghanistan, Iraq, the Palestinian territories, and Somalia.

The challenge of distinguishing combatants from noncombatants in

contemporary wars necessitates fresh thinking about how to protect

civilians while providing armed forces clear targeting guidelines. More

specifically, the nature of contemporary warfare requires developing an

international consensus on the scope of activities which constitute “direct

participation in hostilities,” or for which acts civilians lose their

protected status. Indeed, uniform guidelines establishing when and how

 Trevor A. Keck is a recent graduate of the Fletcher School of Law and Diplomacy at

Tufts University, where he focused on International Security and Public International

Law. He wishes to thank Professor Ian Johnstone, Sarah Riley (LL.M., 2010), and Major

Dan Stigall, the subject-matter expert reviewer at The Judge Advocate General’s School,

U.S. Army, Charlottesville, Virginia, for the Military Law Review for their helpful

comments and suggestions on earlier versions of this article. Any errors or omissions are

solely those of the author.

116 MILITARY LAW REVIEW [Vol. 211

individuals lose immunity in war are necessary to provide militaries clear

targeting guidelines while safeguarding protections for noncombatants.

This article seeks to addresses this challenge. Specifically, it will

attempt to answer the following questions: How should armed forces

discriminate between combatants and non-combatants in conflicts during

which insurgents refuse to distinguish themselves from the civilian

population? What criteria are to be used to determine that an individual is

directly participating in hostilities (DPH), and thus not protected from

direct attack? Finally, given the challenge of adhering to the principle of

distinction in asymmetric conflicts, should restraints on the use of force

be more restrictive in these conflicts than in conventional warfare?

This article will be divided into three parts. First, it will review the

legal obligation to distinguish between combatants and noncombatants in

war, the historical evolution of this principle, and the challenge state

militaries face in observing this norm in asymmetric conflicts. The

second section will analyze criteria developed by the International

Committee of the Red Cross (ICRC) for distinguishing between

combatants, civilians participating in hostilities and civilians protected

against direct attack. Such criteria were developed for and published in

the ICRC’s 2009 report entitled, “Interpretive guidance on the notion of

direct participation in hostilities under international humanitarian law.”

The final section analyzes restraints on the use of force during

asymmetric conflicts between sophisticated state militaries and poorly

trained and equipped non-state actors. In doing so, this article will

demonstrate the logic of more restrictive restraints on lethal force during

irregular warfare. In particular, this article contends that international

human rights law should control lethal force during occupations or non-

international armed conflicts where a party controls significant territory.

Such a change would require that security forces exhaust non-lethal

measures before resorting to deadly force, which could result in fewer

noncombatant casualties at little additional risk to security forces.

II. The Problem of Distinction in 21st Century Warfare

A. The Historical Evolution of the Distinction Principle

The distinction principle is arguably the simplest, albeit most

fundamental rule of IHL. According to the rule, parties to an armed

2012] RESTRAINTS ON THE USE OF FORCE 117

conflict must always “distinguish between the civilian population and

combatants and between civilian objects and military objectives.”1 As the

International Criminal Tribunal for Former Yugoslavia recently affirmed,

intentionally violating this principle is never justified.2 Indeed,

knowingly directing an attack against noncombatants is a manifest

violation of IHL.

The obligation to distinguish combatants from noncombatants has

historically been recognized across cultures and nations.3 As early as the

5th century B.C., Sun Tzu, the prominent Chinese military general, wrote

“treat the captives well and care for them…generally in war the best

policy is to take a state intact; to ruin it is inferior to this.”4 By the 2nd

century B.C., Egypt and Sumeria had devised a complex set of rules

governing the resort to and conduct of war, which included the obligation

to distinguish combatants from noncombatants. 5 Around the same time,

the Hindu civilization produced the Book of Manu, prescribing a set of

rules similar to the Hague regulations of 1907, which included a

prohibition on attacking civilians.6 Thus, the distinction principle was

recognized long before it was codified in 20th century treaties.

While a long recognized principle, compliance has been imperfect at

best. As law of war scholar Gary Solis highlights, war has often been

“waged not only against states and their armies, but against the

1 The distinction principle is codified in the Geneva Conventions and a norm of

customary international law. See Protocol Additional to the Geneva Conventions of 12

August 1949, and Relating to the Protection of Victims of International Armed Conflicts

art. 48, June 8, 1977, U.N. Doc. A/32/144, annex I [hereinafter Protocol I]; International

Committee of the Red Cross, Customary International Humanitarian Law database r. 1,

http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule1 [hereinafter ICRC Customary

IHL] (last visited June 1, 2012) (explaining that, in the view of the ICRC, the obligation

to distinguish between combatants and noncombatants in military operations is a rule of

binding customary international law).

2 Prosecutor v. Galic, Case No. IT-98-29-T, Trial Chamber Judgment and Opinion, ¶ 44

(Dec. 5, 2003).

3 For a review of the origins of the laws of war, see 1 THE LAW OF WAR: A

DOCUMENTARY HISTORY 4 (Leon Friedman ed., 1972) [hereinafter THE LAW OF WAR: A

DOCUMENTARY HISTORY].

4 SUN TZU, THE ART OF WAR 76 (1963).

5 JEAN PICTET, DEVELOPMENT AND PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW 7

– 8 (1985).

6 Chris af Jochnick & Roger Normand, The Legitimization of Violence: A Critical History

of the Laws of War, 35 HARV. INT’L L. J. 49, 60 (1994).