Book contents
- Frontmatter
- Contents
- Introduction to the Second Edition
- Preface
- Table of cases
- Table of treaties
- List of abbreviations
- 1 The general framework
- 2 Lawful combatancy
- 3 Prohibited weapons
- 4 Lawful targets of attack
- 5 Protection from attack of civilians and civilian objects
- 6 Measures of special protection from attack
- 7 Protection of the environment
- 8 Specific methods of warfare
- 9 War crimes, orders, command responsibility and defences
- General conclusions
- Index of persons
- Index of subjects
3 - Prohibited weapons
- Frontmatter
- Contents
- Introduction to the Second Edition
- Preface
- Table of cases
- Table of treaties
- List of abbreviations
- 1 The general framework
- 2 Lawful combatancy
- 3 Prohibited weapons
- 4 Lawful targets of attack
- 5 Protection from attack of civilians and civilian objects
- 6 Measures of special protection from attack
- 7 Protection of the environment
- 8 Specific methods of warfare
- 9 War crimes, orders, command responsibility and defences
- General conclusions
- Index of persons
- Index of subjects
Summary
The principle of distinction
142. The cardinal principle of distinction between civilians and combatants (see supra 18–19) is probably the most fundamental pillar of LOIAC. The history of LOIAC to date can be described as a sustained effort to ensure that civilians (not directly participating in hostilities) are protected from the havocs of war. This has significant consequences where the use of weapons is concerned. As the International Court of Justice admonished in the Advisory Opinion on Nuclear Weapons:
States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.
The distinction is actually not only between civilians and combatants, but also between civilian objects and military objectives (see infra 218 et seq.).
143. It is necessary to differentiate between (a) weapons that are employed in specific circumstances contrary to the principle of distinction, e.g., killing combatants and civilians indiscriminately (see infra 313 et seq.); and (b) weapons that by their very nature or design cannot possibly maintain the distinction in any set of circumstances. The fact that certain weapons are used indiscriminately in a particular military engagement does not stain the weapons themselves with an indelible imprint of illegality, since in other operations the same weapons may be employed within the framework of LOIAC. The Court impugned only those weapons that are intrinsically ‘incapable of distinguishing between civilian and military targets’. Such weapons – often called ‘blind’ – are unlawful perse. A leading example is a long-range missile with a builtin faulty guidance system, making it impossible to aim the weapon at any specific point.
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- Publisher: Cambridge University PressPrint publication year: 2010