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compelling72. At the moment, no such additional criterion is applicable but in the event that states one day agree that a regime of special protection should apply to certain dual-use facilities, this proposal may constitute a helpful starting point.
The second proposal is with respect to unexploded remnants of war. This is a policy-oriented proposal, which may be especially appropriate in the case of interventionist conflicts, such as in Kosovo, in Afghanistan and in Iraq. It posits that victorious states and their allies have a responsibility to assist in the repair of the infrastructure and economy at the end of hostilities, in order to limit the long-term damage that may materialize as a result of their attack73. This is good example of searching for solutions beyond the letter of the law where it is clear that the existing regime faces new challenges because of new battle field realities. To be certain, a commitment to offer post-conflict assistance does not retroactively justify an act that constituted a violation of the jus in bello at the time it was committed.
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The principle of distinction between civilians and combatants was first set forth in the St. Petersburg Declaration, which states that “the only legitimate objects which states should endavour to accomplish during war is to weaken the military forces of the enemy75. In the Kassen case of 1969, Israel‟s military court at Ramallah recognized the immunity of civilians from direct attack as one of the basic rules of International Humanitarian Law76. There are, moreover, many official statements which invoke the rule, including by states not, or not at the time, party to Additional Protocol I77. The rule has also been invoked by parties to Additional Protocol I against non-parties78.In their pleadings before the International Court of Justice in the Nuclear Weapons case, many states invoked the principle of distinction. In its Advisory Opinion in the Nuclear Weapons case, the court stated that the principle of distinction was one of the “cardinal principles” of international humanitarian law and one of the intransgressible principle of International Customary Law79.
The principle of distinction is one of the foundation stones upon which the edifice of IHL rests. As Fenrick has stated: „military commanders are obligated to distinguish between civilian objects and military objectives and to direct their operations against military objectives‟80.
The principle of distinction as expressed in the St. Petersburg Declaration recognizes that, no military necessity justifies direct attacks on civilians or civilian objects. Respect for the principle is what makes it possible for humanitarian law to fulfill
75. St. Petersburg Declaration, Preamble (cited in Vol. 11, ch. 1, 8.83
76. Israel, Military Court at Ramallah, Kasem Case p. 2797
77. See example, the statements of Germany Vis-à-vis Turkey (Ibid S. 292) Spain vis-à-vis Iran and Iraq (Ibid S.315).
78. See the statement of Ecuader Military Manual ( S. 39) Egypt Military Manual( S. 40 and 283.
79. ICJ, Nuclear Weapons Case op,,cit S. 434.
80. W Fenrick, The Law Applicable to Targeting and Proportionality after Operation Allied Force.” A view from the outside; (2003), pp. 53 at 66.
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its aim of protecting the civilian population from the consequences of armed conflict.
According to Watkins, “The ability of combatants to plan and conduct their operations and defend the state, as well as the capacity of state or the international community to hold them accountable for failure, is significantly dependant, upon the clarity and relevance of the distinction principle81.
Several key provisions of the Hague Regulations annexed to the 1907 Fourth Hague Convention, the 1949 Geneva Conventions and their Additional Protocols of 1977 enshrined the principle of distinction between civilians and civilian‟s objects and military objectives. The whole thrust of the Fourth Geneva Convention of 1949 is towards providing for the protection of civilians and civilian objects, in particular part II concerning the general protection of population against certain consequences of war, and a number of provisions provide specific protection from attacks against civilian objects, including Article 18 prohibiting attacks on civilian hospitals82 and Article 33 concerning collective punishment and reprisals against protected persons and their property83. Besides being firmly anchored in various treaties, the principle of distinction is also established in customary law84. Further, it is applicable in international and non-international armed conflicts85.
81 . See Watkin, 10c. cit. n.4, p.3
82 . Article 19 of the Fourth Convention provides, the protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties acts harmful to the enemy. Protection may, however cease only after the warning has been given, naming in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.
83 . Article 33 of the Fourth Convention provides; no protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is prohibited. Reprisals against protected persons and their property are property are prohibited.
84 . The rule that civilian population as such as well as individual civilians shall not be object of attack is a fundamental rule of international humanitarian law applicable to all armed conflicts”.
85 . See: e.g, Prosecutor V. Tadic, Case No IT- 9-1 AR72, Appeals chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 87, Prosecutor v. Martic,
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The ICJ description of the principle as “intransgressible86 has been criticized since it fails to explain what this adjective means. Queguiner argues that the ICJ thereby meant
“to indicate the jus cogens character of the principle of distinction87. There is no doubt that the very principle of distinction cannot be changed as it has reached the status of a jus cogens norm. That being said, what can clearly be modified is the definition of combatant and this is where the problem lies. Indeed, “the uncertainty within the principle of distinction emerges when probing the critical delineation between what constitutes a civilian and what constitute a combatant88”. This work argues that despite perceptible changes in the reality on the ground and calls for reform proposals, IHL has been affected by these changes.