Civilians play an increasingly important and complex role in armed conflicts, both as victims and perpetrators. While this overall trend of “civilianization” encompasses all types of present-day conflicts, it takes on a very different nature in high-technology warfare than in the context of low-technology combats that are typical of many civil wars.

The Honourable Sergio Jaramillo Caro is Vice Minister of Defence in Colombia. Prior to this, he held several diplomatic and governmental positions, including adviser to the Ministry of Foreign Affairs (where he was in charge of diplomacy for peace), Political Counsellor of the Embassy of Colombia in France, and Adviser for Political and Strategic Affairs of the Ministry of Defence.

The "direct participation" exception to the principle of distinction, found in Article 51(3) of Protocol I and Article 13(2) of Protocol II, embodies a long-recognised concept in the laws governing armed conflict. For centuries, the broad notion that humanity demands the protection only of those citizens who are harmless has found expression in the rules and norms relating to war. This article traces the historical factors and trends which influenced the development of the exception in its current form, revealing a tendency towards ‘humanising’ the law in favour of civilians, notwithstanding their increased military value.

This article examines the legal problems associated with human shields. The author begins by discussing the absolute nature of the prohibition on their use and goes on to consider the precautions to be observed by the party being attacked.

Three main arguments may explain why few cases in international (and national) criminal law include charges for attacks against civilians or civilian objects. The law may not be sufficiently clear, there may be a lack of evidence or the selection of military targets may be based on mainly subjective considerations, which make it very hard to establish individual culpability. This article examines some legal and practical reasons for the difficulties the prosecutor faces when trying to charge individuals with such crimes. Although there are few examples, the ICTY has shown that it is generally possible to hold individuals responsible for such crimes.

The “equal application” principle is that in international armed conflicts, the laws of war apply equally to all who are entitled to participate directly in hostilities, irrespective of the justice of their causes. The principle, which depends on maintaining separation between jus ad bellum and jus in bello, faces serious challenges in contemporary armed conflicts and discourses. The rival proposition – that the rights and obligations of combatants under the laws of war should apply in a fundamentally unequal manner, depending on which side is deemed to be the more justified – is unsound in conception, impossible to implement effectively, and dangerous in its effects.

The theoretical separation of "jus ad bellum" and "jus in bello" provides important protection during armed conflict. It guarantees that "jus in bello" will apply regardless of the cause of a conflict. However, this distinction has been challenged by the view that in some cases, a situation of self-defence may be so extreme, and the threat to the survival of the State so great, that violations of "jus in bello" may be warranted. The situation is compounded by the confusion of the principles of necessity and proportionality under "jus ad bellum" and "jus in bello" in both academic writing as well as the jurisprudence of international courts. The dangers of blurring the distinction will be elucidated by examining how "jus ad bellum" considerations have affected the application of "jus in bello" in armed conflicts between States and non-State actors.

Adopted by the Assembly of the International Committee of the Red Cross on 26 February 2009.

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