Eric Talbot Jensen, The ICJ'S Uganda Wall: A Barrier to the Principle of Distinction and an Entry Point for Lawfare, 35 Dᴇɴᴠ. J. Iɴᴛ'ʟ L. & Pᴏʟ'ʏ 341 (2007).
The intermixing of combatants with civilians while engaging in hostilities violates one of the most fundamental principles of the law of armed conflict: the principle of distinction. This bedrock principle of the law of war requires those involved in conflict to mark themselves so they can be distinguished from those who are not involved in combat. The most common method of compliance is for combatants to wear a uniform. By requiring distinction, both combatants and civilians know who is involved in the combat and who is not. Derogation from the principle of distinction is among the most serious issues facing the law of war today. As fighters on the battlefield relax the requirement to mark themselves, erosion of this principle will lead to greater intermixing of combatants with civilians during combat. Increased civilian casualties will inevitably result because of the inability to discern who is targetable and who is not. Unfortunately, the current trend in the development of the law of war seriously undermines the principle of distinction by allowing, or even encouraging, would-be fighters to evade distinguishing themselves. Two recent cases from the International Court of Justice, the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory and the Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), promote this trend, giving official incentive for nations to use non-uniformed insurgents rather than official militaries who would be expected to comply with the law of armed conflict. These decisions pose a significant danger to the law of war in the age of asymmetrical lawfare. The international community must take steps to reinstate the principle of distinction and reinvigorate the protections afforded to civilians.
35 Denv. J. Int'l L. & Pol'y
Denver Journal of International Law & Policy