The ICJ's "Uganda wall": a barrier to the principle of distinction and an entry point for lawfare.

• Author: Jensen, Eric Talbot

To determine the magnitude, causes, distribution, risk factors and cumulative burden of injury in a population experiencing armed conflict in northern Uganda since 1986 ... we took a multistage, stratified, random sampling from the Gulu district ... 1 of 3 districts in Northern Uganda affected by war since 1986 ... A similar rural district (Mukono) not affected by war was used for comparison ... Of the study population, 14% were injured annually ... Only 4.5% of the injured were combatants ... The annual mortality of 7.8/1000 in Gulu district is 835% higher than that in Mukono district. (1)

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The risk to civilians in armed conflict has steadily risen since World War II, (2) and the United Nations currently estimates that ninety percent of the casualties in modern armed conflict are women and children, presumably civilians. (3) This is particularly deplorable given that the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (4) (GCC) was written in response to the dramatic numbers of civilian casualties in World War II. (5) There are, undoubtedly, a number of reasons for this increase. (6) However, one of the most significant reasons for the rise in civilian deaths has been the mingling of combatants (7) with civilians on the battlefield. (8)

Nowhere has this been more obvious than in the recent conflict in Iraq. Not only have insurgents such as Abu Musab al-Zarqawi specifically targeted civilians, (9) but they have also refused to distinguish themselves from the civilian population. (l0) Rather, they have chosen to blend in with the local populace, making it much more difficult for coalition and Iraqi military to distinguish between the insurgents and the innocent bystanders. (11) The obvious result of such tactics is to increase the danger to civilians. This creates a difficulty for those who are trying to comply with the law of war.

When faced with such opponents, militaries intent on complying with the Law of War struggle between the requirements of distinction and their desire to protect non-combatants, and the practical reality of protecting their force from fighters ... who act as combatants when engaging in combat but dissolve into the crowd of non-combatants when faced with opposing military forces. (12) This intermixing of combatants with civilians while engaging in hostilities violates one of the most fundamental principles of the law of armed conflict: the principle of distinction. This bedrock principle of the law of war requires those involved in conflict to mark themselves so they can be distinguished from those who are not involved in combat. The most common method of compliance is for combatants to wear a uniform, but other methods of setting a combatant apart from a non-combatant are also authorized. (13) By requiring distinction, both combatants and civilians know who is involved in the combat and who is not. Thus, they can both make informed decisions of how to proceed in a combat environment.

The derogation from the principle of distinction is among the most serious issues facing the law of war today. (14) As combatants relax the requirement obliging them to mark themselves, erosion of this distinction will lead to greater intermixing of combatants with civilians. Increased civilian casualties will inevitably result because of the inability to discern who is "targetable" and who is not. Unfortunately, the current trend in the development of the law of war seriously undermines the principle of distinction by allowing, or even encouraging, would-be fighters to evade distinguishing themselves. Instead, these combatants seek the protections of civilians while not accepting the responsibilities of eschewing combatants' acts. This is a devastating trend that must be reversed or it will result in the destruction of the current law of war.

This paper will briefly introduce the principle of distinction, reviewing its basis in customary international law and early conventional codifications. The Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflict (GPI) will then be analyzed and proffered as the beginning of the official derogation from the principle of distinction and the genesis of an increasing disregard of the requirement that combatants distinguish themselves from civilians. Two recent cases from the International Court of Justice (ICJ), the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (15) and the Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), (16) will then be discussed and criticized for promoting the same trend, giving official incentive for nations to use non-uniformed insurgents rather than official militaries who would be expected to comply with the law of armed conflict. The significant danger this poses to the law of war in the age of asymmetrical lawfare will then be illustrated. Finally, some recommendations will be made as to steps the international community can take to reinstate the principle of distinction and reinvigorate the protections afforded to civilians.

1. PRINCIPLE OF DISTINCTION

   "At the very heart of the law of armed conflict is the effort to protect noncombatants by insisting on maintaining the distinction between them and combatants." (17) This principle "prohibits direct attacks on civilians or civilian objects" (18) and is codified in Article 48 of the GPI (19) which states, "In order to ensure respect for and protection of the civilian population and civilian objects, the 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." (20) However, this principle only attained such general acceptance after a long history of slow evolution in the laws of armed conflict. This evolution began millennia ago and arose out of recognition that regulating conflict, even if only to a limited degree, would have benefits. (21)

   Many ancient cultures had rules concerning the conduct of hostilities. (22) As these rules evolved through time and culture, their focus was to provide protections for those who were engaged in hostilities and were acceptable only if they provided some military advantage or fulfilled some military purpose. (23) For example, as early as the 5th century B.C., Sun Tzu 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." (24) Sun Tzu's apparent concern for captives and enemy property and persons was not born from a humanitarian desire to preserve his adversary but as part of the overall goal to conquer that enemy. Contrast Sun Tzu's tactics with that of the Roman armies during the 5th and 6th centuries. Although they had rules about military conduct in war, "Plunder was general; and no distinction was recognized between combatants and noncombatants" (25) because the military's need to plunder was too great. Similar approaches were taken by the Babylonians, Hittites, Persians, Greeks, and others. (26) Any protections granted to noncombatants and civilians grew generally out of a utilitarian view of warfare and not from an ideological desire to preserve them from the horrors of war. (27)

   During the age of chivalry, the customs and usages of war continued to take a utilitarian view and developed rather intricate rules for plunder (28) and siege. (29) They contained a number of very important rules for relations between fighters, such as ransom (30) and parole, (31) as well as combat rules, such as the distinction between ruses and perfidy. (32) As the feudal system gave way to the rise of the nation state, and its dominance as the major player in international relations, (33) knights also gave way to the use of professional armies. While civilians had been incidental to the conflicts up to this point, this transition broadened the scope of who participated in hostilities. As Nathan Canestaro writes:

   The erosion of the line between civilians and the professional military began with the fundamental changes in warfare seen in the Napoleonic era. The expanding scale of warfare, the advent of popular revolutions in some European countries, especially France, and repeated clashes between professional soldiers and armed peasantry during the Napoleonic wars, brought commoners into warfare in significant numbers for the first time. (34) With this increase in the scope of hostilities, the battlefield was prepared for a renewed focus on the laws governing war, including the consideration of noncombatants and civilians.

   By the middle of the 19th century, nations began to codify the rules that had developed up to that point. (35) Examples of this include the 1863 Lieber Code, (36) the 1868 Declaration of St. Petersburg, (37) the unratified Brussels Conference of 1874, (38) the Hague Conventions of 1899 and 1907, (39) and the 1909 Naval Conference of London. (40) These conventions came to be known as the "Hague tradition." (41)

   The Hague tradition, typified by the 1907 Hague Regulations, became the foundation upon which all modern laws of armed conflict are built, (42) and they embody concepts still valid today. (43) This Hague tradition focused on the combatants and was based on a utilitarian view of warfare not only to provide limited protections for fighters while in battle but also to maintain the warrior ethos of chivalry. (44) Commenting on the utilitarian nature of the Hague tradition, George Aldrich wrote, "The 1907 Hague Regulations contain very few provisions designed to protect civilians from the effects of hostilities. Aside from the prohibition on the employment of poison or poisoned weapons, which was primarily intended to protect combatants, the only such...