Distinction Principle in International Humanitarian Law Related to

Civilian Objects and Military Objects

Eno Prasetiawan, Eka Widi Astuti, Helmi Amnijar

and Febryan Topo Ruru Artha

Faculty of Law, Universitas Airlangga, Surabaya, Indonesia

Keyword: Civilian Objects, Distinction Principle, International Humanitarian Law, Military Objects.

Abstract: This research examines the state's obligation to apply the distinction principle of international humanitarian

law for separation of civilian objects and military objects in Indonesia. The government may be not

interested in dividing these two objects, such as military headquarters in the midst of urban areas, public

facilities categorized as civilian objects, as well as airports located in a military base categorized as military

object. In addition, this research also describes the aspects of international humanitarian law in relation to

efforts required from states to implement a distinction principle. Under international humanitarian law, the

state has an obligation to separate civilian objects and military objects during peacetime for the protection of

human dignity and the limitation of sufferings from war. This research applied the normative method with

legislation approach which was done by reviewing all laws and regulations related to the handled legal

issues. In addition, data used were primary legal materials, such as international legislation and conventions

and secondary law materials, for instance literatures relating to international humanitarian law. Data

collection employed in this research was by conducting literature study to obtain primary and secondary

legal materials for the legislation approach.

1 INTRODUCTION

In various regions of Indonesia, civilian objects

and military objects are adjacent, in general, and

tend to not be separated by the state. With rapid

development in various areas, buildings and houses

of citizens built on the ways leading to military base

are now integrated with military base. Such military

base is used to be in sparsely populated area. Due to

the rapid development in various area, civilian

activities and civilian objects are together with

military base. Furthermore, public facilities are

combined between civilian and military objects, for

example, existing airports in some areas in Indonesia

utilised by civil aircraft which also used by military

aircraft. Although the consequences may not be

obvious, this can actually endanger the security of a

country and civilians in the event of war or armed

conflict.

According to Geneva Conventions Article 48 of

1977 Additional Protocol 1, to ensure respect and

protection of civilians and civilian objects, the

conflicted parties must be distinguish between

civilians and combatants as well as between civilian

objects and military objects. The conflicted parties

have to direct their operations only against military

objects. This is intended to ensure the safety and

protection of civilians when an armed conflict or

war occurs. It is also a preventive step for the

country to embark upon during peace time

preparation to avoid or minimise civilians casualties

during war. The distinction must be done in a

peacetime.

Many countries ratify but some do not ratify this

provisions. Although the state does not ratify the

provisions for the separation of civilian objects and

military objects, the provisions in humanitarian law

are international norms, standard, and value that

should be adhered by states. Briefly, even when a

state does not ratify this provisions, conscious and

consistence efforts must be made to separate military

objects and civilian object. The separation of civilian

objects and military objects is a preventive effort

against attack on civilians and its objects during

armed conflict. Thus, it is necessary to review the

extent of the country's attention to the provisions of

this Geneva Convention.

Prasetiawan, E., Astuti, E., Amnijar, H. and Artha, F.

Distinction Principle in International Humanitarian Law Related to Civilian Objects and Military Objects.

DOI: 10.5220/0007548806490652

In Proceedings of the 2nd International Conference Postgraduate School (ICPS 2018), pages 649-652

ISBN: 978-989-758-348-3

649

2 DISCUSSION

International humanitarian law is a branch of

international law provided the protection and

restrictions use of violence in armed conflict against:

(Handerson, 2009) firstly, those who do not or no

longer participating directly in hostilities; secondly,

a restrictions on the number of facilities used to

achieve the goal of the conflict, which is weaken the

potential of enemy's military. It can be conclude that

the basic principles of international humanitarian

law, including: (Blanning, 2005) the difference

between the civilians and combatants; a prohibition

to attack those who are hors de combat; a prohibition

which cause an unnecessary suffering; the necessity

principle and the proportionality principle.

Humanitarian law not only governs conditions of

war but it also regulates matters relating to war.

Humanitarian law regulates conditions of war,

activities before and after war. In essence,

humanitarian law gives space for countries to fight

by keeping in mind human values.

Rules in humanitarian law contained in their

conventions are international customs which are

then codified in the form of written agreements. This

warring provision is a custom originating from

western countries where development of

humanitarian law originates. From this custom, a

law of war was formulated and was set forth in The

1907 Hague Law and the 1949 Geneva Law. This

clearly shows that war is not forbidden but concern

more on how to fight justly and protect victims from

war (Danial, 2016).

In the current era of globalization, the state no

longer thinks of anything related to conflict or war,

but prioritizes to take care of its economic condition.

Development of infrastructure, buildings, and other

suggestions supporting the economy in a country are

intensified in order to pursue the economic goals of

a country.

Table 1: The differences between civilian objects and

military objects.

Civilian Objects Military Objects

Based on Article 52 (1)

of Additional Protocol I

1977:

All objects which are not

military objectives

Based on Article 52 (2)

of Additional Protocol I

1977:

Objects which by their

nature, location, purpose,

or use:

•

ake an effective

contribution to

military action and

•

hose total or partial

destruction, capture or

neutralization, in the

circumstances ruling

at the time, offers a

definite military

advantage.

During peacetime, the state must anticipate war

or armed conflict with another country. Conscious

and continuous separation of military objects and

civilian objects is necessary during peacetime. With

such separation, the state make efforts for both

military and civilians to survive during war. The

only purpose is to prepare when war is imminent and

unprepared since war may not be expected by

community. Current inter-state rivalries in all

aspects can potentially lead to friction among

countries. Therefore, with such separation during

peacetime and in the event of war, the state is

prepared with all the suitable conditions military to

engage a war and all the suitable conditions for

efforts to protect civilians.

In Article 37(2) of Additional Protocol 1

specifically deems camouflage, a common method

for disguising a military object as a civilian object, a

permissible ruse of war: “Such intended ruses act

mislead an adversary or to induce him to act

recklessly, but there is no applicable international

law rule for infringe in armed conflict. It is not

categorized as perfidious because they do not invite

the confidence of an adversary with respect to

protection under that law.” The following are

examples of such ruses: the use of camouflage,

decoys, mock operations and misinformation. Heller

(2015) states that the point of camouflage is to make

a military object, such as artillery piece or a tank,

appearing to be a civilian objects whether natural,

such as foliage, or artificial, such as a building.

2.1 The Nature of Implementation of

Distinction Principle Related to

Civilian Objects and Military

Objects Based on Humanitarian

Law

In addition to distinction between civilians and

military, the distinction between civilian objects and

ICPS 2018 - 2nd International Conference Postgraduate School

650

military objects also requires to be adopted. When

conflict or war occured, military object, as target,

can be legitimately attacked. Disabling military

object is the aim of the conflicting parties. Civilian

objects and civilians should not be targeted or

victimized. During armed conflict, warring parties

will aggressively attack their enemies. Civilians and

civilian objects in the vicinity of military or military

objects will be a part of such attack as a

consequence. Hence, distinguish between military

objects and civilian objects during peacetime is

necessary. Otherwise, civilians and civilian objects

will be avictim of military attack.

The conflicted must all times distinguish

between civilian objects and military objectives.

Attacks may only be directed against military

objectives and must not be directed against civilian

objects. (

Henckaerts, 2005)

The State's obligation to separate civilian and

military objects should be exercised in peacetime

according to the provisions of Article 48 of 1977

Additional Protocol I. The state should provide

protection for its civilians as much as possible and

minimize the potential for civilians as victims of

war. There may be deliberate or intentional attack on

a civil object by an adversary. When distinction

between civilian and military objects is not

accomplished during peacetime, adversary can claim

that such attacks are on the military using civilian as

shield or camouflage. Conversely, when separation

between civilian and military objects is undertaken

during peace time, deliberate attacks on civil objects

during war cannot be justified. Nevertheless, it is the

obligation of the state to protect its citizens with

precautionary measures against attack on civil

objects by adversary on pretext of disabling military

objects. Such precautionary measures can only be

embarked upon during peace time. Provisions for

separation and distinction requires to be a part of

policy during peace time to safeguard civilians

safety and security during war.

2.2 Implementation of Distinction

Principle related to Civilian

Objects and Military Objects in

Indonesia

Indonesia is subjected to international law, in

particular international humanitarian law. Moreover,

Indonesia ratified the 1949 Geneva Convention and

enacted it under Law No. 59 of 1958 relating to the

Accession of the State of the Republic of Indonesia

to the 1949 Geneva Conventions. It means,

normatively, Indonesia acknowledges and becomes

a party to the treaty so it is conferred the rights and

bound by obligations to comply with the Laws of

Geneva.

In the case of the distinction between civilian and

military objects, it is actually regulated in 1977

Protocol Additional 1 which is currently not ratified

by Indonesia. The 1977 Additional Protocol

complements the 1949 Geneva Conventions; notably

the 1949 Geneva Convention on the Protection of

Civilians. This means that the 1977 Additional

Protocol also provides international protection for

civilians in times of armed conflict.

The 1977 Additional Protocol is explicitly

established to protect the civilian population. The

conflicting parties must all times distinguish

between the civilian population including journalists

and combatants, between civilian objects and

military objectives in accordance with the

requirements contained in the Decree of the

Principal Deputy of Defence and Security Prime

Minister No. MI / A / 72/62 which should direct its

operations only on military targets. This provision is

in effect an affirmation of the basic principles of

international humanitarian law in regulating such

long-standing armed conflicts in the 1977 Additional

Protocol (Ismail, 2013).

In Indonesia, civilian objects and military targets

appear not to have been separated by the

government. The military headquarters of the

Indonesian National Army (TNI) in various areas

can be found in the middle of the city; close to

residential areas and mixed with public facilities

such as airports and hospitals. This is a problem for

the future, especially if the Government does not pay

attention to the application of the principle of

distinction.

There is ratification of the 1977 Additional

Protocol that could be a state’s reason for not

applying the principle of distinction. However , the

important thing to be understood is that the 1977

Additional Protocol is part of the 1949 Geneva law

categorized as customary international law

codification. States constituting to confliced parties

are obliged to ensure that state duties relating to

protection of civilians can be exercised in

accordance with the provisions of the convention.

This means that the country is obligated to act in a

manner to ensure compliance for the convention in

all circumstances. (Istanto, 1992)

Therefore, Indonesia should remain committed to

the principles contained in international

humanitarian law because Indonesia is subjected to

international law. The most important is that

Indonesia is obliged to uphold the protection of

Distinction Principle in International Humanitarian Law Related to Civilian Objects and Military Objects

651

civilians from harm and threat of conflict or war

occurred. Humanity is the essence of humanitarian

law and the protection of humanity is the highest

respect for international law and humanitarian law.

Therefore, as a sovereign country, Indonesia should

apply the principle of distinction between civil and

military objects as a preventive effort to protect their

civilians from unnecessary threats, attacks and

suffering resulting from war.

3 CONCLUSIONS

The distinction principle is one of the important

principles in humanitarian law where its application

should be prioritized by the state, especially by

Indonesia during peacetime for the future in case of

armed conflict. The state is able to protect its

civilians from adverse impacts. Although no one

expects the war to occur, as a country that upholds

human rights, the government should examine to

distinguish between civilian and military objects as a

preventive effort to uphold humanitarian values in

the event of war.

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Handerson, I., 2009. The Contemporary Law of Targeting,

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Ruse of War?. Stockton Center for the Study of

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Henckaerts, J.M., and Beck, L.D., 2005. Customary

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