Protection of Civilians

in Armed Conflict

Kusal Kavinda Amarasinghe

 Why should civilians be protected
in an armed conflict?
Civilians are those who do not directly participate in hostilities.

Accordingly, one of the primary objectives of international humanitarian

law is to protect the lives of civilians.

This can be identified as the primary objective of the Geneva Law School.

The Fourth Geneva Convention of 1949, Additional Protocols in 1977,

and the provision of customary law provide for the protection of civilians
in war.
The principle of Proportionality
The principle of proportionality prohibits attacks 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.

The principle of Distinction

The parties to the conflict must at all times distinguish between civilians and
combatants. Attacks may only be directed against combatants. Attacks must not be
directed against civilians.
Who is a civilian?

Article 50 (1) of AP - I
Civilians are persons who are not members of the armed forces.

IHL Customary Rule No 5

Civilians are persons who are not members of the armed forces.
The civilian population comprises all persons who are civilians.
What is Civilian Object?
Article 52 (1) of AP - I
Civilian objects are all objects which are not military objectives.

Article 52 (3) of AP - I
In case of doubt, whether an object which is normally dedicated to civilian
purposes, […] is being used to make an effective contribution to military
action, it shall be presumed not to be so used.

IHL Customary Rule No 9

Civilian objects are all objects that are not military objectives.
1949 Fourth Geneva Convention and its
Provisions
The Fourth Geneva Convention of 1949 aims to provide ‘Protection of
Civilian Persons in Time of war.’

Accordingly, this Convention can be considered as a kind of 'Bill of

Rights'.

Article 4 of the Convention defines persons as protected persons,

Civilians living in the event of a conflict or occupation of occupied
territory.
• Part II- Field of application of the Convention (From Article 13 to 26)
General protection for civilians against the consequences of war

• Part III- Field of application of the Convention (From Article 27 to 141)

Status and treatment of protected persons
 Under what instances are civilians protected in war?

The Fourth Geneva Convention (1949) describes the protection of civilians

in the following instances:

• Aliens on the territory of party to the conflict - Part III (Section II)

• Civilians in occupied territory - Part III (Section III)

• Civilian internees - Part III (Section IV)

Article 35 - Right to leave the territory
All protected persons who may desire to leave the territory at the outset of,
or during a conflict, shall be entitled to do so.

Article 47 - Inviolability of rights

Protected persons who are in occupied territory shall not be deprived, in any
case or in any manner whatsoever, of the benefits of the present
Convention.

Article 78 - Security measures

If the Occupying Power considers it necessary, for imperative reasons of
security, to take safety measures concerning protected persons, it may, at
the most, subject them to assigned residence or to internment.
 How to treat civilians in a war
Article 27 - General observations
Protected persons are entitled, in all circumstances, to respect for their persons, their
honour, their family rights, their religious convictions and practices, and their manners and
customs.

Article 28 - Danger zones

The presence of a protected person may not be used to render certain points or areas
immune from military operations.

Article 29 - Responsibilities
The Party to the conflict in whose hands protected persons may be, is responsible for the
treatment accorded to them by its agents, irrespective of any individual responsibility
which may be incurred.
 Ensuring the general protection of civilians in a war

Article 51 of AP I and Article 13 of AP II,

1. The civilian population and individual civilians shall enjoy general

protection against dangers arising from military operations.
2. The civilian population as such, as well as individual civilians, shall
not be the object of attack.
3. Civilians shall enjoy the protection afforded by this Section, unless
and for such time as they take a direct part in hostilities.
What is an Occupied Territory?
Article 42 of the 1907 Hague Regulations

Territory is considered occupied when it is actually placed under the

authority of the hostile army. The occupation extends only to the
territory where such authority has been established and can be
exercised.

According to the common Article 2, the four Geneva Conventions of

1949 apply to any territory occupied during international hostilities.
They also apply in situations where the occupation of state territory
meets with no armed resistance.
What are the most important principles governing occupation?

• The occupant does not acquire sovereignty over the territory.

• Occupation is only a temporary situation, and the rights of the occupant are limited to
the extent of that period.
• The occupying power must respect the laws in force in the occupied territory unless
they constitute a threat to its security or an obstacle to the application of the
international law of occupation.
• The occupying power must take measures to restore and ensure, as far as possible,
public order and safety.
• To the fullest extent of the means available to it, the occupying power must ensure
sufficient hygiene and public health standards, as well as the provision of food and
medical care to the population under occupation.
• The population in occupied territory cannot be forced to enlist in the occupier's armed
forces.
Loss of protection of civilians under
International Humanitarian Law
Direct participation in Hostilities – (DPH)

"Direct participation in hostilities consists of specific acts carried out by

individuals as part of the conduct of hostilities between parties to an
armed conflict.”

(ICRC - Interpretive guidance on the notion of Direct Participation in

Hostilities under International Humanitarian Law, p.43)
Constitutive elements of direct participation in hostilities;

• the act must be likely to adversely affect the military operations or

military capacity of a party to an armed conflict. (threshold of harm)

• there must be a direct causal link between the act and the harm likely
to result. (direct causation)

• the act must be specifically designed to directly cause the required

threshold of harm in support of a party to the conflict and to the
detriment of another (belligerent nexus)
Who are the direct participants in an armed conflict?

International Humanitarian Law does not expressly define direct participants

in hostilities (DPH).

Levée en masse - all able-bodied men to defend the nation

According to Article 4(a)6 of the 3rd Geneva Convention;

Inhabitants of a non-occupied territory, who on the approach of the enemy

spontaneously take up arms to resist the invading forces, without having had
time to form themselves into regular armed units, provided they carry arms
openly and respect the laws and customs of war.
During World War II, in the territories of
German-occupied Netherlands, France,
Poland, Byelorussia, and Czechoslovakia there
were organized armed groups that could be
considered Levée en masse.
Later these groups were trained and
equipped by the allied forces against Nazi
Germany.