Abstract
This minor-dissertation will critically analyse the relationship between two of the general principles of IHL, namely, the principle of distinction and the principle of proportionality, illustrating that the principle of distinction should be associated with a higher level of significance than the principle of proportionality. In this regard, the argument will be made that the focus should not be placed on what methods and weapons of warfare are being used, but rather on how and against whom the methods and weapons are utilised. This view will be demonstrated by way of an analysis of the real-world eventualities of war, particularly the fact that most atrocities that are committed during times of armed conflict are committed through the use of low-tech weapons and tactics such as sexual and gender-based violence and other tactics resorted to in asymmetrical conflicts. Although the provisions of Customary International Law, Common Article 3 and Additional Protocol II provide recourse in the case of sexual and gender-based violence, it will be argued that the overarching general principle of distinction should be more extensively relied upon and more effectively applied in an attempt to rectify the current state of affairs. This section of the dissertation will rely on the examples of the Rwandan Genocide, the genocide that transpired in the former Yugoslavia, and the conflict that is currently transpiring in Syria. This dissertation will conclude with proposals of reform in order to improve the practical application of the general principles of IHL so as to bolster the protection afforded to civilians in modern armed conflicts. In this regard, it will ultimately be concluded that the principle of distinction should be applied more stringently in order to ensure that direct attacks against civilians are never be condoned.
LL.M. (Public International Law)