Adverse Distinction — A Strawman Principle

The modern, post-colonial and post-cold war conflict is distinct from the so-called old wars fought (Kaldor, 2012) for abstract notions of justice or political change. According to Kaldor, the current era of new wars focuses on greed and economic gain for the belligerent parties. A key characteristic which needs to be made before sketching out the principle of adverse distinction is the rising usage of urban warfare, where conflicts are fought within cities, with developed and localized environments, where distinction between belligerents and civilians is a blurred line.

International Humanitarian Law(IHL) consists of both jus en bello as well as jus ad bellum. Since this essay focuses mainly on urban armed conflicts, it shall only be examining the former which is also known as the Law of Armed Conflict. Various interpretations considering the mandate and application of IHL exist. In the words of Sandra Krähenmann “international humanitarian law is not concerned with the reasons why an armed conflict breaks out. Instead, international humanitarian law strives to protect persons affected by armed conflict and limits the means and methods of warfare that can be used by the parties to a conflict” (Krähenmann, 2016). In accordance with the aforementioned definition, certain principles of IHL are essential to be laid out to present the case for adverse distinction. These are the principles of proportionality and the principle of distinction. The former was first explicitly laid out within the First Protocol Additional of the Geneva Convention. It rules over balancing out on military advantages and the civilian harm which may arise due to a kinetic strike on a military target. The term military target follows up on the second principle of distinction. This rule ensures that civilian objects are not targeted by military strikes while also protecting structures such as hospitals and granaries of the civilian population.

Adverse Distinction — The principle on the prohibition of adverse distinction is a granting principle under international law, by which it is interpretative and taken from the absolute meanings of pre-existing conditional maxims. The principle of non-discrimination within the rules of International Human Rights Law (IHRL) plays into the principle of adverse distinction which allows for special protection and distinctions based on special situations and needs of a specific group of people. Rules of non-discrimination are a matter of both IHL and IHRL and both bodies of law are complementary and mutually reinforcing on the subject (Droege, 2007). Vulnerabilities of civilians are taken as rules within the Geneva Conventions while special protection being awarded to various groups such as women (GC IV Article 27/2 ) from attacks on their honour in the form of rape and other forms of indecent assault. International Law represents, in essence, a struggle against the subjectivity of politics and this is inherently apparent since it attempts to adjudicate on an extra-legal situation (Moussa, 2008).

The law of armed conflict is considered to be unique within the canon of international law since it governs the specific conduct of all belligerents as well as non-combatants equally within a specific subject, here the subject being an armed conflict. It is hence also realised that a certain degree of infliction of violence is necessary within an armed conflict by all belligerent parties. Parties to a conflict are required to distinguish between civilian objects and military targets, failure to which amounts to adverse distinction (Timmermans, 2022). This was seen during the NATO intervention in Kosovo, when the United States did not respect the distinction between civilians and military personnel within the target radius and was discriminatory on the ground of age, religion and ethnicity. In contrast, General Mladíc in Srebrenica had adhered to the principle of civil immunity and freed women, children and the elderly.

This brings out a fundamental issue with the principle. It is misapplied, purely due to the logical frame it is built on, which are vulnerability and proximity to conflict. This principle is inherently biased towards the protection of civilian women and children, while considerably ignoring the situation of civilian men within the target zone (Hirsch, 2012). This causes a depravity within the protection afforded to men within war zones, causing extra judicial killings as seen in the Casanare Incident in Colombia, and leads to ethnic killings of certain sections of the populations. Gender is not the only factor influencing the moral frame, as an elderly man will not be considered a target in the same way as a military-aged man. This indicates the possible existence of difficult intersections between gender, age, ethnicity, race, and other factors (Timmermans, 2022).

There exists very little literature on the principle of adverse distinction, but what we can extrapolate is that it should be considered a half measure within the annals of IHL due to its misapplication, and inherent loopholes. The principle has not provision on how it plans to address the direct and indirect impacts of a conflict on a minority or protected group. A broader question that is left to be answered is ‘Can this principle protect minorities under an umbrella function while still serving its main principle of non-discrimination’. This is especially difficult if the legal maxim of ex injuria non oritor juris is considered. IHL does not address accountability of humanitarian actors and the distinction principle does not govern them hence not accounting within itself the ideas of humanitarian relief. Since groups in armed conflict perceive and take humanitarian relief differently it is of utmost importance for the former to be brought under the principle (Krähenmann, 2016). Hence, we can safely state that the principle is flawed and can be considered to be a strawman provision which does very little to mitigate the suffering within a conflict.