A core principle of the law of armed conflict is the ‘principle of distinction’ – the obligation imposed on each party to a conflict to ensure at all times that a distinction is made between combatants and civilians. This principle is reflected in Article 48 to the Additional Protocol I of the Geneva Conventions:
In order to ensure respect for and protection of the civilian population and civilian objects, 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.
One of the first and foremost inferences from the principle of distinction is that, “…civilian objects shall not be the object of attack or of reprisals,” i.e., deliberate attacks against civilian objects are generally forbidden.
However, when a civilian object such as a mosque, a school, a hospital and the like is used for military purposes including as a command center; as a site for firing weaponry and launching rockets; as a place to conceal and store weapons, they are no longer considered to be civilian objects and thus lose their protections and become legitimate military objects which may be the target of an attack.
Whether an object is considered civilian, and thus granted protection against attack, or a legitimate military object, is determined not by its intrinsic function but rather if its “nature, location purpose or use make an effective contribution to military action.” As stipulated by the International Committee of the Red Cross Commentary, military action may be comprised of:
… all objects directly used by the armed forces: weapons, equipment, transports, fortifications, depots, buildings occupied by armed forces, staff headquarters, communications centers etc.
In the recent Protective Edge operation we have witnessed Hamas commandeer otherwise civilian sites – schools, UN infrastructure, hospitals, private homes, mosques – and use them for military purposes, including for weapons storage; the establishment of command and control centers and for the firing of weapons and launching of rockets. Those civilian objects which are used by Hamas for military purposes lose their protection and turn into legitimate military objects.
As international law expert Prof. Yoram Dinstein noted:
Certain objects are by nature dedicated to civilian purposes: the templates are places of worship, civilian dwellings, schools and hospitals. As long as they fulfill their normal functions such objects must not be considered military objects. Still in the fluctuations that occur during combat, civilian objects may be used (or more precisely abused) by the enemy- contrary to the normal function- in a manner making an effective contribution to military action. If and when that is the case, even churches and hospitals become military objectives.
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