Photo: Angelica Alzona (GMG)

This piece is part of a recurring series that aims to be a complete guide to the laws of war. You can read previous entries here.

The protection of civilians in the power of the enemy is an essential objective of international humanitarian law (IHL), the laws of armed conflict. The only legitimate objective of armed conflict is to weaken the military capacity of the adversary, and negative effects on the civilian population must be minimized to the greatest extent possible.

Historically, civilians bore few of the effects of war. In centuries gone by, wars were fought by hand-to-hand combat on battlefields located safely away from populated areas. In modern times, weapons have become more sophisticated and destructive, the character of warfare has become more complex, and more wars are fought in cities and in heavily populated areas. The result is that noncombatants bear the worst effects of armed conflicts.

Sadly, the pre-1949 Geneva Conventions did not protect civilians, as it was considered obvious that they would remain outside of combat and did not need special protection. The 1934 Tokyo Draft was drawn up in response to the horrors of World War I in order to create a Convention which would protect civilians in time of armed conflict. A diplomatic conference planned for 1940 to discuss adoption of the draft did not go ahead because of the outbreak of World War II. It was not made into a binding treaty in time for the war, where untold millions of civilians suffered.

The principles outlined in the Tokyo Draft formed the basis of the Fourth Geneva Convention of 1949, or GC IV, which was the first treaty in history to provide explicit protection for civilians on the territory of an enemy belligerent. The First Additional Protocol of 1977, or AP I, lays down further protective rules for civilians affected by international armed conflicts.

Advertisement

Simply, in armed conflict, civilians are persons who are not members of the armed forces. The civilian population comprises all persons who are civilians.

International Humanitarian Law lays down overlapping rules protecting different groups of civilians—the civilian population generally, specially protected civilians, internees, refugees, women, children, and families. The protection is cumulative, and if a person falls into multiple categories they receive the protection owed to each. This piece will detail the specific protections that members of each group are entitled to, as well as the historical incidents which have informed the international community’s evolving applications of these protections.

Fundamental Guarantees

Civilians who are caught in warzones are often targeted for rape and sexual violence, hostage-taking, pillage, starvation, denial of medical assistance, and murder.

Advertisement

In international armed conflicts (IACs)—those between two or more nations, situations of military occupation, and qualifying wars of national liberation—Additional Protocol I grants fundamental guarantees to all persons in the power of any party to the conflict. These include general guarantees of humane treatment and respect for their person, fair trial and due process guarantees, and prohibitions against murder, torture, corporal punishment, mutilation, humiliating and degrading treatment, enforced prostitution, hostage-taking, and collective punishments. This provision is considered declarative of customary international law and as such is binding on all nations regardless of whether they have ratified AP I.

In non-international armed conflict (NIACs)—qualifying conflicts between a state and a non-state armed group, or between multiple non-state armed groups—Article 3 common to the four 1949 Geneva Conventions provides a general protection to persons taking no active part in hostilities. It requires that they be treated humanely, with no adverse distinction founded on race, color, religion, sex, birth, wealth, or other similar criteria, and prohibits violence, murder, mutilation, cruel treatment, torture, hostage-taking, humiliating and degrading treatment, and the passing of irregular sentences.

Under customary international law, civilians and other persons hors de combat are owed many fundamental guarantees equally at IAC and NIAC.

Advertisement

The Civilian Population

The kinetic effects of war can cause widespread civilian casualties, the destruction of civilian objects and installations necessary for survival, and widespread famine, poverty, unemployment, forced migration, and separation of families.

Parties to an armed conflict are prohibited from directly attacking the civilian population under the principle of distinction, and may not target individual civilians unless and for such time as they directly participate in hostilities. In the conduct of hostilities, which we will discuss in a future entry in this series, parties to a conflict must act to minimize the effects of war on the civilian population by not conducting attacks indiscriminately, by respecting the principle of proportionality, by taking adequate precautionary measures, by only employing permitted means and methods of warfare, and by not attacking objects indispensable to the survival of the civilian population.

Advertisement

Blockades are often employed by belligerents in an armed conflict as a method of squeezing the enemy. One important protection for the civilian population is that wartime blockades cannot be absolute. Parties to a conflict must allow the free passage of two types of consignments to civilians of another nation, even if that nation is its enemy. First, consignments of medical and hospital stores and objects necessary for religious worship are to be permitted. Secondly, essential foodstuffs, clothing, and tonics are permitted only if intended for children under 15, expectant mothers, and maternity cases. The latter category is restricted to those persons for reasons of military necessity: if sent to the civilian population as a whole they could be a means of reinforcing the war economy. In each case, however, the blockading power may refuse passage only if they seriously fear the consignments would be diverted or misappropriated or that a definite advantage may accrue to the military efforts or economy of the enemy.

Starvation of civilians as a method of warfare is a war crime, and parties to a conflict are encouraged to agree to humanitarian and impartial relief actions for the benefit of the civilian population.

Parties to an armed conflict may establish neutralized or hospital and safety zones and localities to shelter the population from the effects of war, to act to protect the wounded and sick, and to evacuate persons from besieged or encircled areas. Many protections offered to wounded and sick members of armed forces apply equally to protect the civilian population.

Advertisement

Protected Civilians

The Fourth Geneva Convention gives special protection to protected persons who find themselves in the hands of a party of which they are not nationals (and correspondingly provides for greater punishment for those who maltreat them). This protection is the essence of GC IV, aimed at civilians most vulnerable to hostile and adverse treatment.

What does it mean to figuratively be “in the hands of” (or “in the power of”) a party to an armed conflict? Simply, a person who is in territory under the control of the party in question is said to be in its hands. For our purposes, this can come about in two mutually exclusive ways. First, persons in the sovereign territory of a nation (its “own territory”) are in its hands. You, right now, are deemed to be “in the hands” of the nation you are currently physically present in, even if it’s not your own country: you are subject to its laws, and that nation’s government, judicial, law enforcement, and military authorities can all exercise power over you in various ways if they so wish. Secondly, persons in territory occupied by a foreign power (“occupied territory”) are in the occupying power’s hands, as it can exercise power over the occupied territory’s population in various ways similar to a sovereign. (We will explore the law of occupation in depth in the next installment in this series.) It’s easy to envision how prison inmates are considered to be in their nation’s power, but even regular citizens who seldom or never come into direct contact with local authorities are said to be in their hands.

Advertisement

Persons who, in an international armed conflict or an occupation, find themselves (at a given moment and in any manner whatsoever) in the hands of a party to the conflict or occupying power of which they are not nationals are protected persons under the Fourth Geneva Convention, subject to the exceptions below. The definition was drafted in the negative form so as to ensure that stateless persons always receive protection. Persons who before the beginning of hostilities were considered as refugees are also entitled to protected status. There is no corresponding protected person status in non-international armed conflict.

Generally speaking, a person who is in the hands of their own nation is not protected under the Fourth Convention, as nations are assumed to provide protection to their own peoples under regular citizen-country relations. But hold on, there’s a serious problem here—what about when a state is persecuting a segment of its own population, particularly if that is the very reason for the war in the first place? Had the Geneva Conventions been in existence during World War II, the strict wording of GC IV would have meant that German Jews who were not refugees at the beginning of the war would not have been protected persons when in the hands of Germany or its Wehrmacht. It’s fairly incomprehensible, to be honest, that the nations of the world left this gap in protection given that the Conventions were drafted in the aftermath of, and largely in response to, the horrors of WWII. The International Criminal Tribunal for the former Yugoslavia considered this issue in relation to inhumane treatment of civilian Bosnian Muslims by Bosnian Serb forces during the Yugoslav conflicts of the 1990s. The victims had the same nationality as the accused and were therefore in the hands of their own nation at the time of the acts in question. The Appeals Chamber of the ICTY famously held that GC IV’s protected person regime was intended to hinge on substantial relations more than formal bonds, and that in inter-ethnic armed conflicts, ethnicity may become determinative of national allegiance. The so-called “Allegiance Theory” therefore operated to classify the Bosnian Muslim victims as protected persons under GC IV and render the accused guilty of grave breaches of the Fourth Convention.

Persons who are nationals of co-belligerent states (i.e., allies of the party to the conflict or occupying power) are not protected while their state has normal diplomatic representation where the person is. The Conventions make an assumption that their nation’s alliance will mean that proper protection will be ensured through the regular diplomatic channels and is therefore not needed under GC IV. (Examples of this assumption not holding true during World War II, particularly with respect to Italy, led to the inclusion of the requirement for normal diplomatic representation.)

Advertisement

Nationals of neutral states are always protected persons in occupied territory, but are only protected in their own territory if their state does not have normal diplomatic representation there. The reason for the distinction: in non-occupied territory, the neutral country’s existing diplomatic arrangements should ensure wartime protection; while in occupied territory the neutral country’s diplomatic personnel are probably not accredited to the (newly-present) occupying power, so ensuring protection is more difficult and therefore required under GC IV.

Finally, a person is not protected under the Fourth Convention if they are a protected person under any of the first three Conventions: as wounded and sick in the field under GC I; as wounded, sick, and shipwrecked at sea under GC II; or as a prisoner of war under GC III.

Consider the period from May 2003 until June 2004, when the United Kingdom occupied parts of Iraq. All Iraqi nationals present in that occupied territory were considered protected persons in the hands of UK forces, either under the Fourth Convention or one of the other three (for example as prisoners of war). UK nationals in occupied Iraqi territory were not protected persons—regular citizen-country rules governed their relationship. Swiss folks were protected persons, because it would not have been guaranteed that any pre-existing Switzerland-Iraq neutrality arrangements would or could be honored by the new UK occupying force. Finally, Americans were not protected persons unless they did not have effective diplomatic protection where they were, as their nation’s alliance with the UK was assumed to have ensured their protection.

Advertisement

One important point to note: while GC IV’s title confirms that it generally protects “Civilian Persons in Time of War,” you will notice that the definition of “protected persons” discussed above does not require those persons to be civilians (referring instead to “all persons” satisfying the nationality and protective criteria). There can theoretically be a cohort of non-civilians who are classified as protected persons under GC IV—fighters who do not qualify for prisoner of war status, for example. Nevertheless, when speaking in general terms, it’s fine to use the broad term “protected civilians” rather than the technically accurate but clunky “protected persons under the Fourth Geneva Convention.”

Protected Persons On Enemy Territory

Protected persons are entitled in all circumstances to respect for their persons, honor, family rights, religious convictions and practices, and manners and customs. They must be humanely treated and protected against acts and threats of violence, insults, and public curiosity, and cannot be subjected to physical or moral coercion (particularly as a means of obtaining information), physical suffering, extermination, murder, torture, corporal punishment, mutilation, medical and scientific experiments, and other measures of brutality. Protected persons may not be punished for an offense they have not personally committed, and collective penalties, intimidation, terrorism, pillage, reprisals, and hostage-taking are all prohibited.

Advertisement

Beyond these protections, different rules apply to protected persons depending on whether they are in the enemy’s own territory or in occupied territory. We will discuss the latter in the next article in this series.

Protected persons have the right to leave the territory they are on, unless their departure is contrary to the national interests of the state. It’s self-evident why this right is desirable—wars expose civilians to the dangerous effects of hostilities, and civilians of foreign nationality may be the victims of various incarnations of nationalistic sentiment. Indeed, the right to leave was the first right proposed in the Tokyo Draft. The “national interests” exception is quite a wide one—states often block the exfiltration of enemy civilians of military age who are liable to return as enemy combatants, or may oppose the departure of individuals or groups of persons valuable to its economy. A protected person blocked from leaving is entitled to have that decision reviewed.

A party to a conflict may only compel protected persons to work to the same extent as it compels its own nationals to do so. Protected persons of enemy nationality cannot be compelled to engage in work directly related to the conduct of military operations, so as to not force them to join the effort against their own country.

Advertisement

The Fourth Convention requires that the situation of protected persons be regulated in principle by provisions concerning aliens in time of peace. This continuation of peacetime treatment is an important entry point for human rights law, which may provide protections relating to health, liberty, fair trial guarantees, or humane treatment where they are at risk.

In some cases, GC IV limits the rights and privileges usually afforded to protected persons. When, on its own territory, a party to an international armed conflict is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the state, that person’s rights and privileges can be restricted to the extent that they would be prejudicial to the security of the state. That this determination must be made on an individual, not a collective, basis, and so a belligerent cannot place blanket restrictions on, say, all foreigners of military age. Persons that have their rights and privileges restricted must always be treated humanely and must benefit from fair trial rights, and must have their rights and privileges reinstated as soon as is consistent with the security of the state.

The International Committee of the Red Cross is given the mandate under GC IV to visit all protected civilians to ensure their protection.

Advertisement

Internment Of Protected Civilians 

Unlike with prisoners of war, parties to an armed conflict do not have a blanket entitlement to deprive civilians of their liberty. International humanitarian law operates on the basic principle that civilians who do not participate in the conflict should remain unaffected by it to the greatest degree possible, and human rights laws provide that a person generally cannot be deprived of their liberty if they have not been found guilty of a crime. IHL does recognize that belligerents may have a legitimate interest in interning some protected civilians and regulates that internment and provides protection for internees accordingly.

Protected persons in enemy territory may only be placed in internment or assigned residence if the security of the detaining power makes it absolutely necessary. Subversive activity and giving direct assistance to an enemy power are given as examples of acts which threaten the security of a country, while the mere fact that a protected person is of enemy nationality is not of itself sufficient. Less severe measures of control (such as surveillance) should be used where they would be adequate.

Advertisement

Protected internees are entitled to have a court or administrative board review the decision to intern them, and, if their internment is upheld, are entitled to further review twice per year. All interned persons must be released as soon as the reasons which necessitated their internment no longer exist or as soon as possible after the close of hostilities.

Compare each of these factors internment of prisoners of war: POWs may be interned solely because of their status and regardless of whether they are a security threat, are not entitled to have their internment reviewed, and are only entitled to release if physically incapacitated or after the end of active hostilities.

The standards of internment required for protected civilians under GC IV are broadly the same as those required for prisoners of war under GC III, including as to internees’ maintenance and medical attention, the standard of their accommodation, provision of food and clothing, freedom of religion, election of internee representatives, entitlement to send and receive correspondence, and the imposition of penal and disciplinary sanctions.

Advertisement

The International Committee of the Red Cross has the right to visit all internees in their place of internment, to inspect those premises, and to conduct private interviews. The ICRC carries out these visits in accordance with the same principles as with its visits to prisoners of war.

Women, Children, And Families

War causes a disproportionate amount of suffering to women civilians. The adverse effects of increases in poverty, hunger, sickness, and disease caused by armed conflict have an outsized effect on women.

Advertisement

Rape, sexual slavery, and sexual violence are often employed in time of armed conflict as a matter of policy to intimidate, persecute and terrorize the enemy, from the Nazis’ “Joy Division,” to Japan’s “comfort women,” to mass rapes in the Bangladesh Independence War, genocidal rape in Rwanda, mass enslavement of women and girls in the Democratic Republic of the Congo, to the horrors of Myanmar in 2018.

Children affected by war may have their education interrupted, suffer from a lack of proper nutrition essential during their formative years, and are susceptible to emotional and psychological scarring from the trauma of conflict. Families torn apart by war are often never reunited. Children are often intimidated or forced into joining military forces, where the abuse of addictive stimulants amongst child soldiers is common.

International humanitarian law attempts to prevent or alleviate these effects to the greatest extent possible.

Advertisement

Women and children affected by armed conflict are entitled to special respect and protection, while expectant mothers must receive particular respect. The specific health and assistance needs of women affected by armed conflict must be respected.

As discussed above, consignments of foodstuffs clothing and tonics intended for children under 15, expectant mothers, and maternity cases must be permitted, while hospital and safety zones and localities should be designated in order to protect children under fifteen, expectant mothers, and mothers of children under seven.

Women are to be protected in particular against rape, forced prostitution, and indecent assault. These prohibitions are not specifically extended under GC IV to men or children (save that children are to be protected against indecent assault), and nor are they classified as grave breaches, being those that enliven universal jurisdiction such that every country in the world is bound to search for and prosecute or hand over for trial any person on their territory suspected of their commission. In a landmark 1998 decision, the International Criminal Tribunal for the former Yugoslavia found that rape constituted a form of torture and was therefore a grave breach of the Fourth Geneva Convention when committed against a protected person. In an equally momentous decision that same year, the International Criminal Tribunal for Rwanda held that rape could be constitutive of genocide. Rape, sexual slavery, enforced prostitution, forced pregnancy, and, enforced sterilization are all war crimes in IAC and NIAC.

Advertisement

Parties to an international armed conflict must take necessary measures to ensure that children under 15 orphaned or separated from their families as a result of war are not left to their own resources, and must facilitate their maintenance, the exercise of their religion, and their education in all circumstances. This is important for obvious reasons relating to children’s survival, nourishment, and education, but is also crucial in preventing their mobilization into armed groups.

Parties to a conflict may not evacuate children other than its own nationals to a foreign country except as a temporary measure for medical treatment. Such evacuations may otherwise be pretexts for abductions, to re-educate them with different political or religious beliefs, or to recruit them to the armed forces of a state. Evacuation also necessitates an inevitably long and difficult repatriation process, as with the 30,000 children moved to foreign countries during the Greek Civil War of the 1940s.

Various international standards apply to prevent the conscription of child soldiers and their employment in combat. Additional Protocols I and II (which apply to international and non-international armed conflict respectively) each require that parties do not recruit children under 15 and prevent them from taking part in hostilities. The Convention on the Rights of the Child imposes the same age limits, while the Optional Protocol on the Involvement of Children in Armed Conflict raises those limits to 18 years, except allowing state armed forces—but not non-state armed groups—to allow mandatory enlistment from ages 15-18. (Humanitarian workers will tell you that non-state armed groups around the world are uniformly aware of and vocal about the asymmetry of this provision.) Conscripting or enlisting children under 15 or using them to participate actively in hostilities is a war crime in both IAC and NIAC.

Advertisement

In internment, women are to be interned separately from men, and children separately from adults, except where accommodated as family units. Expectant and nursing mothers and children under 15 are to be given additional food. Children in internment must be provided education and must be allowed to attend schools either within or outside their place of internment. Parties are encouraged to conclude agreements for the early repatriation from internment of children, pregnant women, and mothers of young children.

The instability and destruction wreaked by war causes families to be separated and, all too often, lines of communication to be lost. All persons in the territory of a party to an armed conflict must be permitted to give news of a personal nature to members of their families. Internees are entitled to send communication to their family notifying them of their detention, address, and state of health, and to correspond regularly.

Parties to a conflict must facilitate enquiries made by members of families dispersed because of war, and must facilitate their reunion. The International Red Cross and Red Crescent Movement’s Restoring Family Links project aims to look for family members, restore contact, reunite families, and seek to clarify the fate of missing persons in armed conflict, other situations of violence, disasters, migration, and other situations requiring a humanitarian response.

Advertisement

The next installment of this series will cover the law of occupation.