Protected persons and objects under international humanitarian law

In international humanitarian law, individuals are accorded a range of “protections” from the effects of hostilities. Individuals accorded such “protections” are called “protected persons” within the specified limits of protection given them by international humanitarian law. They fall into several distinct categories. Historically the first group of individuals protected by international treaties were combatants and not civilians. Early treaties dealt with the treatment of casualties, protections for medical personnel and facilities, and humane conditions for prisoners of war.

In 1949, the four Geneva Conventions enunciated the first comprehensive set of rules protecting combatants and noncombatants in international armed conflicts. The first three conventions referred to the protection of combatants and related personnel—wounded and sick in the field; wounded, sick, and shipwrecked at sea; and prisoners of war—and the fourth to the protection of civilians. A combatant in simplest terms is a member of an armed force—a person who takes an active part in hostilities, who can kill, and who, in turn, is a lawful military target. A combatant can acquire the status of a protected person under a number of circumstances—for example, if captured or wounded.

The four conventions require that protected persons be humanely treated “without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.” Protected persons may not be willfully killed, injured, or used for medical experiments. Captured and detained persons must be given the food, clothing, shelter, and medical and spiritual care they require. No one may be deprived of the right to a fair trial. Protected persons may not be tortured, coerced, used as human shields or face collective punishments.

The conventions do allow for some distinctions. They provide that “women shall be treated with all the regard due to their sex,” and that female prisoners of war have treatment equal to that given men. The Fourth Geneva Convention also provides that women be protected against “rape, enforced prostitution, or any form of indecent assault.” Additionally, it establishes “particular protection and respect” for groups of individuals such as the wounded and sick, expectant mothers, aged persons, children, ministers of religion, and medical personnel.

The Fourth Geneva Convention further divides protected civilians into three categories: aliens in the territory of a party to the conflict, persons in occupied territory, and internees. These three groups are provided with protections that vary according to membership in one group or another, but all must be given the basic protection codified in Article 27: respect, protection, and humane treatment under all circumstances.

Additional Protocol I of 1977 supplies an ingredient missing from the Fourth Convention. Specifically, Article 51 states that any civilian “enjoys general protection against dangers arising from military operations” and forbids direct attacks against them as well as so-called indiscriminate attacks, which do not distinguish between civilians and combatants. Additional Protocol I also elaborates on Fourth Convention provisions that relief actions be undertaken if a civilian population is not adequately provided with the basic supplies essential to its survival.

Civil Conflicts: The first explicit treaty provision covering protected persons in noninternational armed conflicts—often called internal armed conflicts or civil conflicts—is found in Common Article 3 of the 1949 Geneva Conventions. The basic principle is to require humane treatment without adverse discrimination. It prohibits violence to life and person, the taking of hostages, and outrages upon personal dignity. The article calls for basic judicial and procedural guarantees and an obligation to collect and care for the wounded and sick.

This principle of humane treatment under all circumstances is further developed in the 1977 Additional Protocol II, which extended to internal armed conflict many of the rules found in Protocol I and the 1949 Conventions. Protocol II covers the civilian population, both as a group and as individuals; the essence of the protection is the prohibition against making civilians the object of attack. Attacks are prohibited against dams, dikes, and nuclear power stations if they may result in severe civilian losses. Also banned are attacks on objects necessary for the survival of the civilian population. Additionally, terrorism and starvation of civilians are prohibited as methods of combat. So is forced displacement, unless undertaken for security or imperative military reasons. Relief operations are to be undertaken when the civilian population is suffering “undue hardship.” An important caveat is that technically Protocol II applies only to internal armed conflicts in States that have ratified it. Thus Common Article 3 is the applicable law for most instances of noninternational armed conflict.

Date: 2015-12-18; view: 1056