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Chapter 9 : Civilians. Evolution of Civilian Protections under LOAC. Historically under total war, civilians considered permissible targets and both civilians and their property considered spoils of war
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Evolution of Civilian Protections under LOAC • Historically under total war, civilians considered permissible targets and both civilians and their property considered spoils of war • Modern conception that civilians should be afforded protection only dates to the 19th Century
Historical Background • Historical misreatment of civilians and their property led to the development of the principles of distinction and military necessity • Nonetheless, civilians are a greater percentage of casualties in modern conflict than at any point in history
Who/What is a Civilian? • Broad and misunderstood term • Not defined in 1949 Geneva Conventions (or anything earlier) • Defined in 1977 Additional Protocol I but negatively
Civilian Defintion • Article 50 AP I, “a civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6)” of the Prisoner of War Convention
Who Are Not Civilians • Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces; • Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory [who meet the required conditions]; • Members of regular armed forces who profess allegiance to a government of authority not recognized by the Detaining Power; …. • (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having time to form themselves into regular armed units [levee en masse]
Civilian Protections Under LOAC • The principle of distinction; • The principle of proportionality • Precautions in the attack
Distinction • Parties to a 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.” AP I art 48 • Civilians who are not directly participating in hostilities may never be the lawful object of attack.
Proportionality • AP I art 51 and AP II art 13 obligate parties to a conflict to “[r]efrain from deciding to launch any 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 to the concrete and direct military advantage anticipated.” • Although civilians are protected from attack, this “does not make unlawful the unavoidable incidental civilian casualties and damage which may result from legitimate attacks upon military objectives... AP I art 57(2)(a)(iii)
Precautions In The Attack • Chapter IV AP I, Chapter IV “Precautionary Measures” requires the parties to a conflict to take “constant care” to spare “the civilian population, civilians, and civilian objects” while conducting military operations. • Precautionary measures impose specific duties which ensure that “the commander will have to bear in mind the effect on the civilian population of what he is planning to do and take steps to reduce that effect as much as possible.” Protocol I art. 57(1)
Humane Treatment • Martens Clause Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.
COMMON ARTICLE 3 • actions especially forbidden: • Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; • Taking of hostages; • Outrages upon personal dignity, in particularly humiliating and degrading treatment; • The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Common Article 3 • On its face, only applies to IAC • Interpreted to also apply to NIAC • Applies to all civilians, irrespective of location, nationality, or the characterization of the armed conflict or occupation. • Most widely applicable benefit provided by the LOAC, protecting any and all civilians (even from outrages committed by the armed forces of their own nation).
General Protections • Access for consignments of medical supplies, food, and clothing. • The establishment of agreed upon hospital zones protected from attack. • The establishment of agreed upon neutralized zones to shield civilians from the effects of hostilities. • Feasible measures to protect the wounded and sick from suffering or abuse.
Especially Vulnerable Civilians • Calling for parties to a conflict to agree to remove the “wounded, sick infirm, and aged persons, children and maternity cases ….from besieged or encircled areas”. • Requiring that “civilian hospitals organized to give care to the wounded and sick, the inform and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict.”
Especially Vulnerable Civilians (cont) • Ensuring that “children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances.” • Civilian Convention art. 18. This protection afforded to civilian hospitals ceases if the facilities are “used to commit, outside their humanitarian duties, acts harmful to the enemy.” Civilian Convention art. 19. Even then though, the protections afforded civilian hospitals ceases only after “due warning has been given.” That a hospital may be rendering aid to sick or wounded combatants “shall not be considered to be acts harmful to the enemy.”
Protected Persons Civilians “who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict of Occupying Power of which they are not nationals.”
Protected Persons (cont) Excludes “[n]ationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.” Persons covered or protected by one of the other Geneva Conventions (wounded and sick on land; wounded, sick or shipwrecked at sea; or prisoner of war) “shall not be considered as protected persons….” Civilian Convention art. 4.
Protected Persons (cont) Respect for their persons, their honor, their family rights, their religious convictions and practices and their manners and customs; Women shall be especially protected against any attack on their honour; Access to the International Committee of the Red Cross; No physical or moral coercion used against them to obtain information; No collective punishment
Protected Persons In The Territory of Their Enemy Entitlement to leave the territory and where that request is denied, to have the refusal reconsidered by an appropriate court or administrative board; Entitlement to receive relief supplies; Right to receive medical care to the same extent as the nationals of the State concerned; Opportunity to find employment equal to the enjoyed by nationals of the State concerned. Only compelled to work to the same extent as nationals of the State concerned
Protected Persons In Occupation Protected persons who are not nationals of the occupied territory may leave Reprisals are prohibited; Individual or mass forcible transfers or deportations are prohibited; Civilians may not be compelled to serve in the occupying power’s armed forces; or to engage in labor essential to the defense of those forces. Civilian property may not be destroyed absent imperative military necessity; Deprivations of liberty is authorized only based on individual conduct and subjected to extensive treaty regulation .
Civilian Protections (Protocol I indicating law of armed conflict targeting principles based on Additional Protocol I).
ARMED CONFLICT? YESNO International Internal Not a LOW Issue CA2;* CA3 GC, Part II (general pop.) PROTECTED PERSON? ** YES NO Part III GC, Part II Only Section I TYPE OF TERRITORY? Conflict Occupied Part III, Section II Part III, Section III GCIV (GC) Geneva Convention Relative to the Protection of Civilian Persons in Time of War
Property Destruction of Private Property “[a]ny destruction …of real estate or personal property belonging individually or collectively to private persons.” “except where such destruction is rendered absolutely necessary by military operations.” Devastation as an end in itself or as a separate measure of war is not sanctioned by the law of war
Property Taking Possession of Private Property Seizure temporary taking of property, limited to property “susceptible for military use.” Must be returned to the owner Compensation provided when hostilities have concluded
Property Taking Possession of Private Property Seizure temporary taking of property, limited to property “susceptible for military use.” Must be returned to the owner Compensation provided when hostilities have concluded
Property requisition is the taking of private property Necessary for the maintenance of an occupying armed force. Broader category of items than that eligible for seizure.
