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Is Formalism a Friend or Foe?

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Saving the Principle of Distinction by Applying Function over Form

image of Journal of International Humanitarian Legal Studies

Contemporary armed conflicts are known to blur the categories of civilians and combatants, leading to problems with the principle of distinction. These categories are the result of an essentially formalised IHL, and have become less accurate by being over- or under-inclusive. Although formalism is vital to IHL’s functioning, maintaining it in its present excessive strength perpetuates distinction problems. In numerous cases a functional inroad based on actual conduct has been introduced, for instance with the concept of direct participation in hostilities. This solution should be implemented across a wider spectrum. Where the two categories are difficult to tell apart, a functional approach for one category benefits the other. This article shows how this can be attained by using existing rules and principles of IHL, such as the concept of military objectives and the prohibition on terrorism, or newer rules.

Affiliations: 1: LL.M., tutor ihl moot court teams at the Amsterdam Law School, University of Amsterdam and research intern with the Statelessness Programme at Intervict, Tilburg University, martijn.keeman@gmail.com

10.1163/18781527-00402006
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/content/journals/10.1163/18781527-00402006
2013-09-24
2018-09-24

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