Introduction
International Humanitarian Law (IHL), also known as the law of armed conflict, aims to limit the effects of armed conflict by protecting persons who are not, or are no longer, participating in hostilities and by restricting the means and methods of warfare. At the heart of IHL are fundamental principles designed to balance military necessity with humanitarian considerations. This essay will discuss two of the most important of these principles: distinction and proportionality. It will then explore how these general principles apply to the protection of women in armed conflict, considering whether they adequately address the specific forms of harm that women often experience.
The Principle of Distinction
The principle of distinction is a foundational rule of IHL and is widely recognised as a norm of customary international law. Its core requirement is that parties to a conflict must at all times distinguish between the civilian population and combatants, and between civilian objects and military objectives. Consequently, attacks may only be directed against military objectives (International Committee of the Red Cross, 2005). This principle is codified in Article 48 of Additional Protocol I to the Geneva Conventions, which states: "the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives".
This rule prohibits indiscriminate attacks, which are defined as those that are not directed at a specific military objective or which employ a method or means of combat that cannot be so directed. The purpose is to ensure that civilians and civilian infrastructure are, as far as possible, spared from the effects of hostilities. While the principle is clear in theory, its application can be difficult in modern conflicts where combatants may not wear uniforms and military objectives may be located within densely populated civilian areas.
The Principle of Proportionality
Complementing the principle of distinction is the principle of proportionality. This principle applies when an attack is directed at a legitimate military objective but is expected to cause incidental harm to civilians or civilian objects. Proportionality prohibits launching any attack "which 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" (Additional Protocol I 1977, Art 51(5)(b)).
This rule does not forbid causing all civilian harm; rather, it requires a balancing act. The military commander must assess the expected civilian harm against the anticipated military gain. If the harm is predicted to be "excessive," the attack is unlawful. This is a challenging assessment to make, relying on the information available to a commander at the time of the attack. The principle of proportionality therefore accepts the reality of 'collateral damage' in warfare but seeks to keep it within strict limits, placing a heavy responsibility on those planning and executing attacks.
Application to Women in Armed Conflict
The principles of distinction and proportionality are gender-neutral and apply to all civilians, including women. Under the principle of distinction, women who are not taking a direct part in hostilities are protected from direct attack. Similarly, the proportionality rule requires that any incidental harm to female civilians must not be excessive. However, while these general protections are vital, a specific focus on women reveals their limitations.
IHL does provide some specific protections for women. For example, Article 27 of the Fourth Geneva Convention protects women "against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault." Despite this, the general principles of IHL have been criticised for failing to adequately address the unique ways in which women are affected by conflict (Gardam, 1993).
Sexual and gender-based violence (SGBV) is a prevalent feature of many armed conflicts. Such violence is often not 'incidental' or 'collateral' damage that can be assessed under the proportionality rule. Instead, it is frequently used as a deliberate method of warfare to terrorise, humiliate, and destroy communities. In these cases, SGBV is a direct attack on civilians and a grave breach of the principle of distinction. The proportionality analysis, which weighs civilian harm against military advantage, is inappropriate for a tactic that has no legitimate military advantage and is itself a war crime (Dinstein, 2016). The development of international criminal law, particularly through the Rome Statute of the International Criminal Court which explicitly lists crimes such as rape and sexual slavery as war crimes and crimes against humanity, has been crucial in addressing this gap.
Conclusion
In conclusion, the principles of distinction and proportionality are essential pillars of IHL, providing a framework for the protection of all civilians during armed conflict. They offer a general protective shield to women who are not participating in hostilities. However, the nature of harms often inflicted upon women, particularly systematic sexual violence, demonstrates the limitations of these traditional principles. While such acts are clear violations of the rule of distinction, their deliberate and strategic use as a weapon of war shows that a gender-neutral application of IHL is not always sufficient. The explicit criminalisation of SGBV in international criminal law represents a necessary evolution, acknowledging that effective protection for women in conflict requires specific, targeted legal responses beyond the general application of core IHL principles.
References
Dinstein, Y. (2016) The Conduct of Hostilities under the Law of International Armed Conflict. 3rd edn. Cambridge University Press.
Gardam, J. (1993) 'A Feminist Analysis of Certain Aspects of International Humanitarian Law', Australian Year Book of International Law, 12, pp. 265–278.
International Committee of the Red Cross (2005) Customary IHL Database. Rule 1. Distinction between Civilians and Combatants. Available at: https://ihl-databases.icrc.org/en/customary-ihl/v1/rule1
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3.
Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90.
