Conduct of hostilities Protection of civilians against the effects of hostilities

Dr. Elżbieta Mikos-Skuza

Seminar „Introduction to International Humanitarian Law”

College of Europe, Natolin, 21st February 2013

SOURCES OF LAWprotection of civilians against

the effects of hostilities

1. Hague Regulations 1907 (Art. 24 – 28)2. Geneva Convention Relative to the Protection of Civilian

Persons in Time of War 1949 (Art. 13 – 26)3. Hague Convention for the Protection of Cultural Property

in the Event of Armed Conflict 1954 & Protocols 1954, 1999

4. Convention on the Prohibition of Military and Other Hostile Use of Environmental Modification Techniques 1976

5. Protocol Additional I 1977 (mainly Art. 48 - 71)6. Protocol Additional II 1977 (mainly Art. 13 - 18)7. Other treaties (e.g., St. Petersburg Declaration 1868,

international criminal law instruments)8. CUSTOMARY LAW

MOST RELEVANT IHL PRINCIPLES

Distinction Humanity Necessity Proportionality

CVILIANS PROTECTED AGAINST THE EFFECTS OF HOSTILITIES

St. Petersburg Declaration „The only legitimate object which States should endeavour to accomplish during the war is to weaken the military forces of the enemy”, therefore

Art. 51 (1) PA I „The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations”, Art. 52 (1) PA I „Civilian objects shall not be the object of attack or of reprisals” therefore

Art. 48 PA I „The Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives” = PRINCIPLE OF DISTINCTION

THEREFORE…

Art. 51- 56 PA I; Art.13 PA II

Prohibition of indiscriminate attacks – not directed at a specific military objective (e.g. treating separate military objectives in a civilian area as a single military objective)

Prohibition of spreading terror Prohibition of reprisals

WHAT ABOUT ATTACKING:

1. Civilians attacking members of enemy armed forces?

2. Children throwing stones at enemy patrols?3. Civilians driving ammunition trucks to supply

enemy armed forces?4. Civilians working in scientific laboratories

developing new weapons?5. Civilian officials in the Ministry of Defense?6. A bridge?7. A power station?8. A radio station?9. XIII century church shielding a military unit?

CONCEPT OF A CIVILIAN

Not defined in IHL in a positive way; Until 1977 no definition at all; terminology of HR &

GC – „civilians” ≠ „soldiers”; „civilian persons” ≠ „armed forces”; „civilian” ≠ „military”;

Definition of a „civilian” not very important for the protection of persons in the power of the enemy; rather the precise personal scope of application of the provisions conferring the relevant status and rights (the conditions to be met in order to be protected);

Definition of a „civilian” extremely important for the protection against the effects of hostilities

CONCEPT OF A CIVILIAN

Art. 50 par. 1 PA I „any person who does not belong to one of the categories referred to in Art. 4 A 1), 2), 3) and 6) of the III Convention and in Art. 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian”

civilian ≠ combatant Art. 51 par. 3 PA I & Art. 13 par. 3 PA II „Civilians shall

enjoy the protection (…) unless and for such time as they take a direct part in hostilities”

CONCEPT OF A CIVILIAN OBJECT

Art. 52 PA I

- negative approach – any object that is not a military objective (open list of examples: house, school, place of worship…)

- presumption of a civilian status

WHAT IS A MILITARY OBJECTIVE ?- Anything (except specially protected

objects) that by: nature OR location OR purpose OR use

- makes an EFFECTIVE contribution to military action AND

- whose destruction offers a DEFINITE military advantage

- in the circumstances RULING AT THE TIME

PROPORTIONALITY

(HUMANITY vs. NECESSITY)

Even if there is a military objective…Art. 51 (5) PA I

- Prohibited is an attack which may be EXPECTED to cause incidental loss of civilian life

(…), injury (…), damage (…)- Such a loss would be EXCESSIVE in relation to the - ANTICIPATED CONCRETE and DIRECT military

ADVENTAGE

PRECAUTIONARY MEASURES

Art. 26-27 HR, Art. 57 PA I

Undertaken by an ATTACKER careful planning (proportionality) advance warning (if possible) choice of least harmful ways and weapons cancellation in case of disproportionality

Vague language (“to maximum extent”, “where feasible”…)

PRECAUTIONARY MEASURES

Art. 18, 28 GC IV, Art. 51(7), 58 PA I

Undertaken by a DEFENDER: - Against the effects of attacks

remove civilians from vicinity of military objectives

not to locate military objectives in populated areas

not to use „human shields”- Problem of “voluntary human shields”

SPECIAL MEASURES OF PROTECTION

- Additional to general rules

- Enhance protection - objects may not be used by those who control them for military action and should therefore never become military objectives- Often exceptions (e.g., Art. 56 par. 2 PA I, art. 19

GC IV)

SPECIAL MEASURES OF PROTECTION

- Medical units / equipment / personnel

SPECIAL MEASURES OF PROTECTION

- Humanitarian relief

- Objects indispensable to survival

- Civil defence

SPECIAL MEASURES OF PROTECTION

- Works containing dangerous forces

CULTURAL PROPERTY

Categories of protection :*protection*special protection*enhanced protection

SPECIAL MEASURES OF PROTECTION

Protected zones: - hospital zones and localities (Art. 23

and Annex I GC I) - hospital and safety zones and

localities (Art. 14 and Annex I GC IV) - neutralized zones (Art. 15 GC IV) - non-defended localities (Art. 59 PA I) - demilitarized zones (Art. 60 PA I)

OTHER CATEGORIES

- Journalists: as civilians (Art. 79 PA I) as war correspondents (Art. 4 GC III)

- Peacekeepers: protection against attacks 1994 Convention on the Safety of UN

Personnel

NATURAL ENVIRONMENT

- Legal bases: Art. 35 PA I ( environment as victim -

methods and means of warfare) Art. 55 PA I (environment as victim -

protection of civilian objects) ENMOD (environment as weapon)

- Protection against damage:

widespread AND long-term AND severe