The principle of distinction is based on the idea that in times of armed conflict only attacks of military necessity are justified, and that the state is required to distinguish military objects from civilian objects, in addition to distinguishing combatants from civilians. This is done with the overarching aim of protecting civilians in times of war. We may argue that the principle can find its roots on the St. Petersburg declaration of 1868 which states, “the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy”. This principle is further strengthened by Additional protocol I, Article 51 which states that, “The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations”. The rule of distinction can be found in a range of sources from conventional Treaty Law to Customary International Humanitarian Law (Hereafter CIHL). If we look at Article 48 of the aforementioned Additional Protocol I we can see the basic rule of the principle in stating, “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”. Additionally, Articles 51 and 52 can be said to be further based on the principle in that they both specify the protection of civilians and civilian objects respectfully in times of armed conflict.Alongside treaty law the principle is heavily referenced throughout Customary law. Rule 1 of CIHL states, “The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians”. CIHL develops the principle further to apply it to civilian objects. Rule 7 states, “The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects”. Furthermore, one of the key requirements for the correct application of distinction is the identification between combatants and civilians, and civilian objects and military objects. Combatants come in a range of different forms. One way to be granted combatant status is if participants are members of the Armed Forces. This form of combatant falls under Article 4(1) of the Third Geneva Convention. Additionally, in accordance with Article 4(3), members of the Armed Forces with allegiance to a non recognised Government will also be deemed combatants. Furthermore, members of an organised resistance group may be combatants so long as they fulfil the following criteria; Firstly, there must be a command structure in place. Secondly, participants must wear distinctive emblems recognised from a distance. Thirdly, participants must carry arms openly. Finally, participants must abide by the laws and customs of war. One final form of combatant is those who are considered, levee en masse. This is a resistance group that takes up arms on approach of the enemy, without time to form an organised group. This form of combatant will fall under Article 4(6) of the Third Geneva Convention. On the contrary, civilians are defined in the negative within Article 50(1) as any parties who do not fall under the categories of combatant listed above. With regard to identifying Military Objects, these are defined within Article 52(2) of Additional Protocol I and CIHL rule 8 as, “objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. Civilian Objects are defined in the negative in article 52 (1) of Addition Protocol I, and rule 9 of CIHL as, “all objects that are not military objectives”Alongside the principle of distinction, sits the proportionality principle. This can be found within Rule 14 of CIHL and Article 51(5)(b), which states, “Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited”. From this we can deduce that a target may very well pass the test of distinction but may still be unlawful due to the incidental loss of life that may occur being deemed to be excessive. However, the problems occur when we try to define what is to be deemed excessive. The principle differs from distinction in that it is not concerned with identifying the target as lawful but is concerned with the outcome of the attack. Therefore, it strives to ensure that any loss of civilian life be proportionate as to the military advantage gained by the combatants conducting the attack, this is done by ensuring the attack is not excessive with regard to the overall aim. The principle seems to be an acknowledgement of the nature of war and that some incidental loss of life is a sad consequence. Thus, enforcing a rigid doctrine of distinction would be unworkable due to its black and white application. Therefore, the principal serves to ensure that once targets have been distinguished from civilians the states cannot employ methods which render this principal redundant by resulting in mass loss of civilian life through incidental damage. We may also argue that this principle encourages the correct means and methods of warfare to be applied by encouraging means of warfare that cause minimal or no civilian loss of life. We may draw parallels from the principle alongside that of distinction as both serve to limit the potential civilian deaths in times of war by limiting the amount of force combatants may apply One further principle which sits alongside that of distinction is the principle of precaution. The overarching definition of this principle can be found in Rule 15 CIHL and Article 57 (2)(a)(i) of Additional Protocol I which states, “In the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects”.This includes, but is not limited to; Firstly, ensuring that the targets are in fact military targets in accordance with Rule 16 CIHL. Secondly, application of means and methods of warfare that cause minimum loss of civilian life and damage to civilian objects, in accordance with Rule 17 CIHL and Additional protocol I Article 57(2)(a)(ii). Thirdly, preventing excessive destruction compared to the military benefit in accordance with Rule 18 and Additional Protocol I Article 57 (2)(a)(iii). This principle can be contrasted with the principle of distinction, in that in exercising precaution states must distinguish between civilian and military objects as well as combatants and civilians. This is once again done with the aim of protecting civilians and ensuring that states do not go beyond what is necessary to achieve their aims.When discussing International Humanitarian Law (Hereafter IHL), a grasp of the basic principle of distinction is imperative, this is due to the fact that this very principle seems to be the basis for a wide range of legal provisions in the forms of both Treaty and Customary law. The principle also appears to be referenced heavily under the definition of War Crimes found within Article 8 of the Rome Statute of the International Criminal Court. One example of this is the prohibition of certain means and methods being applied during a conflict. For instance, the principle of distinction is the basis for the prohibition placed upon indiscriminate weaponry. This is weaponry which has no means of distinguishing between enemy combatants and civilians and can be found in Rule 71 of CIHL which states, “The use of weapons which are by nature indiscriminate is prohibited” and Additional Protocol I which prohibits weapons that, “are of a nature to strike military objectives and civilians or civilians without distinction”. Additionally this law can be found in most military handbooks such as the US Navy handbook of 2007 which states, “Weapons that are incapable of being directed at a military objective are forbidden as being indiscriminate in their effect”. This prohibition was further discussed by the United Nations in the UN Convention on Certain Conventional Weapons which aimed to, “Ban or restrict the use of specific types of weapons that are considered to cause unnecessary or unjustifiable suffering to combatants or to affect civilians indiscriminately”. Examples of this type of weapon includes but is not limited to Cluster Munitions and Anti-Personnel Mines. This prohibition can clearly be linked back to the principle of distinction in that it once again has the aim of protecting civilians by ensuring that only combatants are targeted in times of war, a task which indiscriminate weapons, by their very nature, cannot achieve. Additionally, with regard to the aforementioned Cluster Bombs, in 2003 the UK Secretary of defence addressed the fact that they had been used in Iraq and stated that the principle of distinction had been key to planning of these attacks. This implied that these bombs may be used in a manner which does not breach the principle of distinction. This justification seems to seem somewhat unconvincing when we reference the fact that five years later in 2008 the UK signed the Convention on Cluster Munition which was largely down to their indiscriminate nature. This is further evidence of the fact that the means and methods of warfare are heavily influenced by the principle at hand under IHL. With regard to sanctions of these acts they are also listed as War Crimes within Article 8 of the Rome Statute of the International Criminal Court. The specific principle regarding means and methods can be found within Article 8(2)(b)(xx) which prohibits weapons which are, “inherently indiscriminate”. Additionally, Article 11 and Article 13 of the statute states that parties can be held accountable for actions that breach any of the listed prohibitions including the aforementioned Article 8. Therefore, these articles serve to criminalise such behaviors under International Criminal Law and allow individuals to be brought to justice for their actions. Penalties for these crimes can be found in Article 77. One further example of the principle of distinction being used as a basis of law is the prohibition of attacks upon certain types of property such as Churches or Hospitals. With regard to cultural property such as Churches the prohibition can be found within rule 38 of CIHL which, “concerns the prohibition of attacks on cultural property as part of the conduct of hostilities”. This rule can also be found within Article 27 of The Hague regulations of 1899 and Article 27 of The Hague Regulations of 1907 which both serve to prohibit attacks upon cultural property. With regard to hospitals and attacks upon buildings of this kind we may apply rule 35 of CIHL which states, “Directing an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities is prohibited”. Additionally we may apply both Article 27 of The Hague regulations of 1899 and Article 27 of The Hague Regulations of 1907 which both serve to prohibit attacks upon property intended to shelter the sick or wounded.With regard to sanctions for such behaviors the prohibition of attacks upon certain types of property can also be found within the definition of War Crimes in accordance with Article 8(2)(ix) of the Rome Statute of the International Criminal Court which prohibits, “Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives”. Therefore, in accordance with Article 11 and 13 these actions may be punished under international law. As previously mentioned the principle of distinction is the basis for the prohibition of certain means and methods of warfare, including that of weapons of an indiscriminate character. These weapons specifically include that of a chemical and biological nature. However, problems occur when we discuss the applicability of this prohibition with regard to Nuclear weapons and the prospective problems of international law that the use of such weapons may incur. This is especially important given the fact that the two nations with the largest stockpiles of Nuclear warheads are not members of the Rome Statute of the International Criminal Court, these are the USA and Russia. Additionally, this debate is key due to the recent escalations of nuclear tests by North Korea. When assessing whether the use of nuclear weapons constitutes a breach under the principle of distinction we must understand how these weapons work, and if they are indiscriminate by nature using examples of their most recent use. With regard to the current Nuclear Tests of North Korea a recent report from 38 North suggests, if they were to launch an attack on Tokyo and Seoul a possible 2.1 Million injuries will be suffered as a result. With further escalations bringing this total of up to 7.7 Million. This is hardly surprising when we note that in the far less technologically advanced time of 1945 the WW2 bombing of Hiroshima destroyed an estimated 92% of structures in the city and killed an estimated 200,000 people, and the bombing of Nagasaki destroyed approximately 22.7% of buildings killing an estimated 140,000 people. These figures are staggering and are a clear example of how these weapons can not be seen as anything other than indiscriminate and would clearly breach the principle of distinction under IHL. This very debate was undertaken by the International Court of Justice in 1996 who struggled to find any direct prohibition but advised the international community that the use of Nuclear weapons would struggle to abide by a range of IHL, including the prohibition of indiscriminate weapons except for in the most extreme circumstances, such as the very survival of a state. From this we may infer that even though IHL law does not go so far as to specify nuclear weapons are illegal the principle of distinction seem to be wide enough to catch them except for in the most extreme circumstances. Therefore, it is difficult to find much of a legal basis for the use of nuclear weapons as the application of IHL seems to catch near to all circumstances. However, many scholars have argued that the application may be justified on a utilitarian basis of saving a greater number of lives by bringing conflicts to a speedy end or the idea of a Nuclear deterrent. These arguments may find solace on the basis of proportionality but will still fail due to the weapons inability to distinguish between civilians and combatants upon its potential application. Utilitarian arguments may further be countered by the fact that a total of 9 nations possess nuclear weapons with each nation having diverse international relationships and alliances. Therefore, surely with these opposing nations each possessing nuclear arms and the military doctrine of Mutually Assured Destruction the outcome of a nuclear strike would cause a far greater amount of devastation than it would prevent. This would be due to nations mutually responding to nuclear strikes and essentially leading to the end of life as we know it. This was the essential fear during the Cold war between the East and West and is a potential example of Nuclear weapons failing to serve a utilitarian perspective and once again failing the principle of distinction. Further problems occur when bringing individuals to justice for the use these forms of weaponry. This is due to the fact that the only state ever to have used a nuclear warhead in aggression is the USA; a state that has refused to sign the Rome Statute of the International Criminal Court. As a result of this omission the US falls out of the Courts jurisdiction and cannot be brought before the ICC. Additionally, Russia which possesses the largest stockpile of nuclear weapons has withdrawn its signature from the Rome Statute so once again individuals cannot be brought before the ICC. This latter point leads us on to the second problem when enforcing the principle of distinction with regard to war crimes under Article 8 of the Rome Statute. This is the relatively limited modes of enforcement possessed by the ICC. One of the reasons for this is due to the fact that only 123 states fall under the ICC’s jurisdiction as a result of ratifying the Rome Statute, with many choosing not to ratify or sign it for varying reasons. This linked to the ICC’s reliance on both state and UN cooperation is a clear indication of prospective difficulties which may be incurred. UN cooperation is imperative as even though the ICC is independent many articles of the UN Charter act to bring parties to justice. Article 13 of the Rome statute for instance allows the UN to refer cases to the ICC which may otherwise have fallen out of the ICCs jurisdiction, such as what occurred with regard to Darfur. Additionally, Article 16 allows the Security Council the power to defer an ICC investigation for up to 12 months and the power to renew this deferral indefinitely. These Articles have the potential to either support or obstruct the ICC in operation. Regarding any potential obstruction, three of the states abstaining from signing the Rome Statute are key members on the UN Security council, USA, Russia and China who each possess a veto power. Therefore, any of these three states can veto any referral made in accordance with Article 13 if it is found to be contrary to their states best interests. Additionally, the Security Councils power to indefinitely defer ICC investigations may once again be abused for similar reasons. These points seem to suggest that the structure of the ICC and its strong reliance on cooperation renders it to be an ineffective tool in enforcing breaches of war crimes.Additionally, if we contrast the courts 2016 budget of 153 Million with its few convictions, and the courts reliance on cooperation, it is difficult to argue it to be an effective tool in enforcing the principle of distinction by punishing War Crimes under Article 8 .We may argue a stronger enforcement mechanism is required in order to render it truly effective. In conclusion, the principal of distinction may be argued to be a key tool in enforcing IHL due to its basis of protecting civilian and civilian objects. The principal appears to be the basis for a number of war crimes under Article 8 of the Rome Statute. However, problems occur when we discuss the effectiveness of the principle regarding war crimes and the ICC due to its strong reliance upon UN cooperation. These problems are evidenced by the fact that in the courts lifespan the ICC has secured a relatively low conviction rate leading us to potentially look at restructuring the ICCs enforcement mechanisms. A further question regarding distinction is whether nuclear weapons breach the principle even though there appears no explicit prohibition. This question appears to be answered in the positive due to the indiscriminate nature of the weapons failing to escape the principle except for the most extreme circumstances.