Under IHL, the civilian population is defined as all persons who are not members of the armed forces of a party to the conflict. In case of doubt about a person/s civilian status, that person must be considered a civilian.
There are three basic rules that regulate the way in which a party to an armed conflict may carry out military operations, or the conduct hostilities. These are the rules around distinction, proportionality and precautions. They aim to protect civilians against the effect of hostilities. In addition to these rules, there is the prohibition against causing superfluous injury or unnecessary suffering and must be complied with in all circumstances by all parties – States and non-state armed groups alike – in all armed conflicts – both international and non-international armed conflicts.
The Principle of Distinction
The principle of distinction requires parties to an armed conflict to distinguish at all times between civilians and combatants, as well as between civilian objects and military objectives. Attacks may only be directed against combatants or military objectives, and not against civilians or civilian objects.
IHL also prohibits indiscriminate attacks which are attacks that:
- Are not directed at a specific military objective (for example, a soldier firing in all directions without aiming at a particular military objective, thus endangering civilians); or
- Employ a method or means of warfare that cannot be directed at a specific military objective (for example, long-range missiles that cannot be aimed at their targets); or
- Use a method or means of warfare, the effects of which cannot be limited as required by IHL (for example, nuclear weapons).
- The prohibition of indiscriminate attacks governs the use of all weapons, including those that are not indiscriminate by nature.
The Principle of Proportionality
The principle of proportionality prohibits attacks against military objectives which are “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.
- The“concrete and direct”military advantage is to be understood as not hypothetical, not speculative or of indirect nature. In that sense, the advantage should be substantial and relatively close – excluding political, economic and other non-military advantages. An advantage that would not be immediately obvious or would only manifest itself in the long term, would not be sufficient. The anticipated military advantage must be expected to result from the attack and not from the entire military campaign.
- The“excessive”nature of an attack cannot be understood by reference to a simple numerical threshold (for example, the number of civilian casualties or damaged civilian objects). In principle, one would have to consider the military value of a target and weigh it against the expected incidental harm.
- The military advantage gained from an attack should be the one anticipated at the time of the attack. In other words, military commanders can only be required to base their assessment on the facts they had before launching an attack.
The Principle of Precaution
Parties to the conflict must respect the principle of precautions. There are two types of precautions under IHL:
- Precautions to be taken when carrying out the attack, also called“precautions in attack”.
- Precautions to be taken to protect the population under the control of the party to the conflict against the effects of attacks, also called “passive precautions”or“precautions against the effects of attacks”.
Precautions in attack: A party to an armed conflict must take constant care to spare civilians or civilian objects in the conduct of military operations. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.
Let’s look at what the party planning, deciding and conducting an attack must do.
Parties to conflict must:
- Do everything feasible to verify that the targets are military objectives.
- When a choice is possible between several military objectives obtaining a similar military advantage, each party must select the objective the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.
- Do everything feasible to assess whether the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
- Take all feasible precautions, notably in the choice of weapons, means and methods of warfare, to avoid, or at least minimize, the incidental harm to civilians and civilian objects.
- Give effective advance warning (such as by loudspeaker, over the radio, by phone where possible, using easily understood signals, by dropping leaflets when appropriate, etc.) of planned attacks on military objectives which may affect civilians, unless circumstances do not permit.
- Take all feasible precautions to cancel or suspend an attack if it becomes apparent that the target is not a military objective; or the attack may be expected to be disproportionate (because it appears that the incidental civilian harm will be more severe or the military advantage less important than initially expected).
Precautions against the effects of attacks:
IHL also requires that parties to the conflict must take all feasible precautions to protect the civilian population and civilian objects under their control against the dangers resulting from military operations. In particular, they must, to the maximum extent possible:
- Avoid locating military objectives within or near densely populated areas;
- Remove the civilian population and civilian objects under their control from the vicinity of military objectives;
- Take all other necessary precautionary measures (such as building shelters, establishing alert systems and evacuation procedures, etc.).
Source : Icrc
