It Is a known fact that international humanitarian law seeks to restrict and reduce the ravaging effects of armed conflicts. International humanitarian law is inspired by considerations of humanity and the mitigation of human suffering. International humanitarian law regulates the conduct of armed conflict and situations of occupation. It oversees the conditions under which force may be used namely in self-defense and pursuant to the stipulations of the UN security Council.
In the event of an armed conflict, International humanitarian law applies to all parties involved regardless a party was legally justified or otherwise. Basically, international humanitarian law aims at protecting people who are not or no longer actively partaking in armed conflicts. This category of people otherwise known as civilians (non-combatants) are shielded by law from being attacked by parties to an armed conflict.
The protected persons regime aims to ensure that civilians who find themselves in the hands of enemy powers are afforded certain fundamental guarantees. This quest to protect people who are not engaging in armed conflicts goes hand in hand with the regulation of the means and methods by which such armed conflicts are carried out. This regulation of the means or method of warfare is also imperative because it minimizes the probability of harm.
International humanitarian law only recently accorded specific protection for civilians. Prior to the four Geneva Conventions of 1949, only the wounded, sick or shipwrecked combatants or prisoners of war were protected under international law. However, the provisions of the Geneva Conventions of 1949 (under Articles 2 and 3 commons to the four Conventions) and the Additional Protocols of 1977 (under article numerous articles) have extended the scope of who a civilian is to cover refugees, infirm persons, relief and humanitarian personnel, non-combatant detainees in occupied territories.
Aside from civilian lives, their properties known as “civilian objects” are also put into perspective. In the course of hostilities, objects such as houses, hospitals, schools, religious centers, etc. Any facility or equipment that is not of the military or related to the military is protected under the scope of international humanitarian law. Parties to an armed conflict are required to distinguish, at all times, between civilians and combatants and between civilian objects and military objectives.
Additionally, an attack may not be launched if it is anticipated to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that would be excessive in relation to the direct military advantage anticipated. This protection of civilians and civilian objects is applicable both in international armed conflicts and non-international armed conflicts.
Civilian Protection under International Humanitarian Law in Armed Conflict Situation
The protection of civilians in armed conflicts is a delicate endeavor. The protected persons regime aims to ensure that civilians who find themselves in the hands of enemy powers are afforded certain fundamental guarantees. They must be protected against all forms of violence and degrading treatment, including murder and torture.
The protection of civilian also encompasses persons who are part of humanitarian organizations found within the orbit of the area of armed conflicts. The parties to such armed conflicts are mandated under international humanitarian law to permit accessibility to such organizations. Provision for this protection to relief bodies is contained in the fourth Geneva Convention and Additional Protocol I of 1977.
Civilians also need protection during the active phase of warfare. Whilst they are not directly in the hands or under the control of the enemy, they may face bomb attacks on their towns or have excessive damage inflicted upon them by attacks that fail to have sufficient regard to the collateral damage caused to civilians by such attacks. The rules that attempt to protect civilians against the effect of active hostilities are mainly contained under Article 25 of Hague Regulations and the Additional Protocol I.
While international humanitarian law protects without discrimination, certain groups are singled out for special mention. Women and children, the aged and sick are highly vulnerable during armed conflict.
In the course of receiving protection, Article 51 of the Additional Protocol I provides thus:
- The civilian population, as such, must not be objects of attacks. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited.
- Attacks that may hit military objectives and civilians or civilian objects indiscriminately are prohibited. “Indiscriminate attacks” are defined as those not directed at a specific military objective, those that employ a method or means of combat that cannot be directed at a specific military objective, or those that employ a method or means of combat the effects of which cannot be limited.
- Attacks in form of reprisals may not be aimed at the civilian population.
- Civilians must not be used to shield military objectives or operations or render them immune from attacks
- Protection of civilians also cover civilian objects, which also must not be the object of acts of violence, direct or indiscriminate attacks, or reprisals. This protection also specifically concerns objects indispensable to the survival of the population – markets, hospitals, worship centers, etc
The respect for and protection of the civilian population and civilian objects rests on the obligation of the parties to the conflict to distinguish between the civilian population and combatants, on one hand, and between civilian objects and military objectives, on the other. This obligation is one of the corner stones of humanitarian law.
There exist certain discrepancies between how civilians are protected in international armed conflicts and non-international armed conflicts. Hence, protection under international armed conflicts and non-international armed conflict shall be examined singly navigating on the legal provisions behind their existence.
Civilian protection under International Armed Conflicts
In International Armed Conflicts (IACs), the protection of civilians and civilian objects is predominantly dependent on the principle of distinction. Hence, parties to an armed conflict are obliged to distinguish between the civilian population and combatants.
This general system of protection for civilians and civilian objects contained in Article 48 to Article 54 of the Additional Protocol I. Specifically, the protection of civilians is stated in Article 51(1) of Additional Protocol I, which reads thus: The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations.
The provisions of the articles in the Additional Protocol I supplements the provisions of Article 2 common to the four Geneva Conventions of 1949 which centers on the protection of civilians and civilian objects in international armed conflicts.
Civilian protection under Non-International Armed Conflicts
The distinction between combatants and civilians tend to be less straightforward in internal armed conflicts; therefore, Additional Protocol II does not make a clear distinction between combatants and civilians. Rather, it distinguishes between those fighting and those are not, or no longer fighting.
This is because it is presumed that the entire population is civilian and must be accorded the protection established by humanitarian law. However, this prima facie presumption is negated when a civilian takes direct part in hostilities.
In non-international armed conflicts, humanitarian law establishes that individuals may belong to the category of civilians yet participate directly at certain times. Additional Protocol II establishes that such individuals shall benefit from the protection granted to civilians. This protection may be suspended only for the duration of their direct participation in hostilities.
The provision for civilian protection in non-international is provided for in Article 3 common to the four Geneva Conventions and Article 13-18 of the Additional Protocol II of 1977.
Who are Protected Persons?
Generally, international law seeks to protect civilians in armed conflict. Be that as it may, the provisions of various conventions and protocols have extended the scope of such person encompassed within the confines of legal protection in armed conflict.
The Geneva Conventions of 1949(supra) obviously protect civilians in general. Civilians as contained in the four conventions includes all non-combatants in an armed conflict, i.e. women and children, medical personnel, prisoners of war, military personnel not on official duty, etc. All the aforementioned persons are considered as protected persons be it in the realm of international armed conflicts or non-international armed conflicts.
Conversely, the provisions of these conventions also include certain categories of combatants into the list of protected persons. Among such grade of combatants are wounded or sick soldiers, shipwrecked soldiers, militias, civilians who take up arms.
When would Civilians lose their Protection?
Although the protection of a civilian in the midst of armed conflicts is guaranteed under international humanitarian law, there exists certain limitation(s) to the protection. These limitation(s) is clearly provided in Article 51(3) of the Additional Protocol I of 1977, which reads this: Civilians are protected against attack, unless and for such time as they take a direct part in hostilities.
This exception is derived from the rules of customary international humanitarian law. As such, were a civilian willingly picks up arms to combat an identified enemy (most probably one originally party to an armed conflict), then the protection issued on civilians by international humanitarian law would not be exempt him from facing the brunt of the attacks emanating from such an adversary.
This rule negating the protection of civilians’ protection under the law of armed conflicts is not limited to only international armed conflicts but is also applicable in non-international armed conflicts as it is included in many military manuals of different nations.
It is worthy of note that the attack on a civilian who directly involves in hostilities is dependent on what “direct participation in hostilities” is interpreted to mean. The meaning of direct participation in hostilities has not yet been clarified. Certain interpretation has been given to the phrase, however, such are not universally accepted.
The inter-American Commission on Human Eights has stated that the term “direct participation in hostilities” is generally understood to mean “acts which, by their nature or purpose, are intended to cause actual harm to enemy personnel and matériel”. Be that as it may, injuries or death caused to a civilian who directly participates in an armed conflicts deemed to be an attack on a legitimate target.