Distinction Matters: Rethinking the Protection of Civilian Objects in Non-International Armed Conflicts

Abstract

Under treaty law all civilian objects are protected in international armed conflicts (IAC) whereas it is only certain civilian objects that enjoy protection under treaty law in non-international armed conflicts (NIAC). However, it is commonly argued that all civilian objects are protected in NIAC under customary law. This article examines the reasons for the differences in the protection of civilian objects under treaty law and the argument that customary law now provides equal protection for all civilian objects under both IAC and NIAC. The article argues that this equal protection may hinder the ability of states to maintain law and order under their domestic law in NIAC in situations where they may need to destroy property which belongs to armed opposition groups. The article advances the argument that the law regarding targeting should be that all civilian objects are protected in NIAC but, unlike the protection of civilian objects in IAC, this protection does not bar a state from destroying in its territory objects which were considered to be illegal under domestic law before the commencement of the NIAC, in accordance with international human rights law as lex specialis.