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Civilians

Prior to the adoption of the Geneva Conventions, civilians in armed conflict were little protected by the laws of war. However, the atrocities experienced by civilian populations during World War II prompted the adoption of Geneva Convention IV.

The Civilians Convention, as Convention IV is often called, marked the first attempt to provide comprehensive rules for the protection of the civilian population in occupied territory, by imposing limits on the allowable acts of an Occupying Power. (The Fourth Hague Convention of 1907 contained some clauses regarding the protection of civilians, but only in relation to those in occupied territory: see Articles 42-56). Civilians are now granted a protected status in much the same way as persons rendered hors de combat through injury, illness or detention. Furthermore, the Civilians Convention also outlines guidelines for the protection of enemy nationals who find themselves in the territory of the opposing State upon the commencement of hostilities. People in this situation were routinely interned during the First and Second World Wars, and were often denied basic protections and rights. The Civilians Convention extends the same rights and protections to interned civilians as those extended to POWs.

Civilians are defined in Article 50(1) of Additional Protocol as all persons who do not belong to the categories of combatant as listed in the Geneva Conventions. Civilian objects are also defined ‘negatively’, in Article 52(1) of Protocol I, as all objects which are not military objectives.

General Protections for All Civilians

The basic rule of IHL regarding civilians is contained in Article 48 of Protocol I, which states that parties to the conflict are required, at all times, to distinguish between civilians and combatants, and between civilian objects and military objectives, so that operations are directed solely against military objectives. Thus, deliberate and direct attacks against civilians are prohibited. This is outlined in Article 51(2) of Protocol I, which states that ‘the civilian population as such, as well as individual civilians, shall not be the object of attack’. Article 51(1) repeats the prohibition with regards to civilian objects. Directly or deliberately attacking civilians is a war crime.

The civilian population is also to be protected from attacks that are considered ‘indiscriminate’. Article 51(4) of Protocol I prohibits indiscriminate attacks, including attacks which are not directed at a specific military objective; attacks which employ a method or means of combat which cannot be directed at a specific military objective; or attacks which employ a means or method the effects of which cannot be limited as required by Protocol I. Indiscriminate attacks are different from direct attacks against the civilian population, in that indiscriminate attacks are not necessarily intended to harm the civilian population – rather the injury to the civilian population is of no concern to those launching the attack. Examples of indiscriminate attacks include blind firing of weapons without clear targets or conducting bombing raids when no clear targets are visible, such as in foggy conditions.

Additionally, the principle of proportionality applies to protect civilians. As noted by the International Court of Justice, ‘the principle of proportionality, even if finding no specific mention, is reflected in many provisions of Additional Protocol I to the Geneva Conventions of 1949. Thus even a legitimate target may not be attacked if the collateral civilian casualties would be disproportionate to the specific military gain from the attack.’ (Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226 at 587). Article 51(5)(b) forbids 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 in relation to the concrete and direct military advantage anticipated’. Such attacks will be classified as a war crime.

In order to protect civilians and civilian objects, Article 57(2)(a) of Protocol I obliges persons planning an attack to take certain precautions. These include:

  • taking all feasible steps to ensure that objectives targeted are military objectives;
  • choosing means and methods of attack that will limit, if not avoid incidental injury to civilians and civilian objects; and
  • refraining from launching attacks likely to breach the principle of proportionality.

Specific Protection for Civilians as ‘Protected Persons’

Geneva Convention IV also contains significant protections for civilians who find themselves in enemy hands. These include:

  • rules for the treatment of foreigners in non-occupied territory;
  • rules applicable to occupied territory;
  • rules common to both enemy and occupied territory; and,
  • rules protecting civilian internees in both enemy and occupied territory.

Under Article 4 of Geneva Convention IV:

Persons protected by the Convention are those 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 or Occupying Power of which they are not nationals ... Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a 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.

Protected persons under Convention IV are entitled to a wide array of protections and rights, including the right to humane treatment, a prohibition on forced labour and collective punishments, access to relief and aid services, and comprehensive protections if such persons are detained or interned.

Belligerent Occupation

There are wide-ranging rules regarding civilians in occupied territory. Territory is deemed to be occupied whenever, during the conflict, a party’s territory comes under the control of an enemy authority involved in the conflict. At this point, the laws on belligerent occupation come into effect; they apply even if such occupation meets with no resistance. The guiding principle of the law of belligerent occupation is that life in the occupied territory should continue as normally as possible. Convention IV imposes considerable obligations upon the occupying power, requiring the occupiers to maintain the status quo in the occupied territory as far as possible. Civilians whose territory has been occupied by an adverse party do not owe any allegiance to their occupiers, other than to refrain from taking direct part in hostilities. Convention IV includes rules requiring the occupying power to administer the territory under the rules of ‘usufruct’ – that of enjoying the use of the territory so long as the territory is administered for the common good. There are rules against amending local laws, except where it is strictly necessary to protect the security of their occupying armed forces. The Occupying Power must ensure that domestic courts continue to operate. Additionally, as a general rule, private property may not be destroyed or confiscated (except under existing domestic legislation). The local population may not be deported, nor may the occupying power transfer their own population into the occupied territory.

Civilians taking direct part in hostilities

When civilians take up arms and join in the fighting they will be deemed to be taking direct part in hostilities. They do not gain combatant status, and will (temporarily) lose their civilian immunity. This is codified in Article 51(3) of Protocol I which provides that civilians enjoy immunity from attack ‘unless and for such time as they take a direct part in hostilities.’ What exactly constitutes direct part in hostilities has been considered by a number of bodies, including the Israeli Supreme Court (The Public Committee Against Torture in Israel v The Government of Israel (2006) HCJ 769/02) and the ICRC (Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, Adopted by the Assembly of the International Committee of the Red Cross on 26 February 2009, published in 90 IRRC 991 (2008)). A useful workable definition was forwarded by the International Criminal Tribunal for the Former Yugoslavia, which noted that direct participation in hostilities should be understood as ‘acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the enemy’s armed forces’ and would include such acts as:

bearing, using or taking up arms, taking part in military or hostile acts, activities, conduct or operations, armed fighting or combat, participating in attacks against enemy personnel, property or equipment, transmitting military information for the immediate use of a belligerent, transporting weapons in proximity to combat operations, and serving as guards, intelligence agents, lookouts, or observers on behalf of military forces.

Prosecutor v Strugar, Case No. IT-01-42-A, Appeals Chamber Judgment, paras 176-79 (17 July 2008).

The rules on direct participation in hostilities thus operate as a general exemption to the rule on civilian immunity.