6 Combatants and civilians: a sometimes difficult divide
The divide between combatants and civilians is crucial in IHL. It is crucial for purposes of Hague and Geneva Law. In the Hague Law (means and methods of warfare), the distinction is pivotal for the application of one of the most fundamental principles of that branch of the law, namely the principle of distinction. The obligation of belligerents to distinguish between civilian persons and objects on the one hand, and military objectives (persons and objects) on the other, and to directly attack only the latter at the exclusion of the former, turns, as far as persons are concerned, on the present distinction. To the extent the clarity of the distinction is reduced, the targeting is rendered more difficult, and ultimately the protection of civilians will be jeopardized. In the Geneva Law (protection of persons), the distinction is essential because the protective regimes of the two categories of persons are different. For combatants, there is a distinct protection under Geneva Law only when they are HORS DE COMBAT and in the control of the adverse party, mainly by injury, sickness, being shipwrecked or surrender. For civilians, there is a larger degree of protection, provided they do not actively participate in hostilities. Geneva Conventions I-III organize the protection of combatants; the one for civilians is Geneva Convention IV. It may be added to the foregoing that the distinction exists only in IAC. In NIAC, there are no combatants under IHL. Thus, strictly speaking, there remain only different categories of civilians, enjoying varying...
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