Protected Persons

Protection of Civilians in the hands of the Enemy Power

Dr. Elżbieta Mikos-Skuza

Seminar „Introduction to International Humanitarian Law”

College of Europe, Natolin, 21st February 2013

CIVILIAN VICTIMS(persons killed / missing during armed conflicts)

First World War - a.f. 10 000 000- c.p. 50 000

Second World War - a.f. 26 000 000- c.p. 24 000 000

Korean War - a.f. 100 000- c.p. 500 000

Vietnam War - a.f. 150 000- c.p. 3 000 000

DANGERS FOR THE CIVILIAN POPULATION

Dangers caused by military operations – principle of distinction Threats to which vulnerable persons are exposed when in the power of the enemy – principle of humanity

SOURCES OF LAWcivilians in the power of the enemy

1. Brussels Declaration 18742. Hague Regulations 1907 (Art. 42 – 56)3. Tokyo Draft 1934 of the International Convention on the Condition and Protection of Civilians of Enemy Nationality Who are on Territory Belonging to or Occupied by a Belligerent4. Geneva Convention Relative to the Protection of Civilian Persons in Time of War 19495. Protocol Additional I 1977 (mainly Art. 68 - 79)6. Protocol Additional II 1977 (mainly Art. 4 - 6)7. CUSTOMARY LAW

CONCEPT OF 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

CIVILIANS IN THE POWER OF THE ENEMY

ALL CIVILIANS

PERSONS PROTECTED

ALL CIVILIANS

Part II of GC IV (Art. 13 – 26) – protection against certain consequences of war (hospital , safety, neutralized zones, protection of wounded and sick, medical personnel, vehicles and hospitals and of particularly vulnerable, e.g. families with particular focus on children)

Section II of Part IV of PA I (Art. 72 – 79) particular importance of Art. 75 Art. 76 – 78 – protection

of women and children

PERSONS PROTECTED

Art. 4 para.1 of GC IV victims are in the hands... of a Party to the conflict or Occupying Power and... victims are not nationals of that Party or Occupying Power

ART. 4 - EXCEPTIONS Nationals of states not bound by GC IV Nationals of neutral states and co-

belligerent states while the states of which they are nationals have normal diplomatic representation in the state in whose hands they are

Persons protected by GC I, GC II, GC IIINB: Espionage, sabotage, hostile activities don’t change the status (Art. 5)

ICTY – art.4

“In the context of Art. 4 substantial relations are more important than

formal bonds. Therefore ethnicity, and not formal citizenship, becomes the

ground for allegiance”.

“In present day inter-ethnic conflicts `nationality` refers rather to `ethnicity`

than to the legal citizenship.”

PERSONS PROTECTED – GENERAL RULES ON PROTECTION (ART. 27 – 34 GC IV)

Protection of :• Corporal and mental integrity• Human dignity• « Honour »• Religious convictions Protection from: • Racial, ethnic, religious or any other discrimination• Coercion or intimidation• Collective punishment• Pillage• Taking of hostages• Use as human shields• Attacks in reprisals

PERSONS PROTECTED – SPECIAL RULES ON PROTECTION

ALIENS in the territory of a party to the conflict (Art. 35 – 46)

Persons living in OCCUPIED TERRITORIES (Art. 47 – 78)

Civilian INTERNEES (Art. 79 – 135)

ALIENS IN THE ENEMY TERRITORY

Right to leave Possible restrictions on the right

to leave- assignment to residence- civilian internment

Treatment equal to foreigners in peace time for those who choose and who are allowed to remain

OCCUPATION

Art 2 GC IV:“The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”

No further definition in GC IV, but 1907 Hague Regulations (Art. 42) offer the following definition: “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.”

Factual matter, the term “occupation” denotes the absence of not only sovereign title, but also of any other internationally-recognized territorial title, such as a lease, trusteeship or, in the past, mandate.

Art. 43 of HR 1907

„The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety [l’ordre et la vie publics] while respecting, unless absolutely prevented, the laws in force in the country”

ART. 64 OF GC IV 1949

“The penal laws of the occupied territory shall remain in force with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute”:

- a threat to the security of the Occupying Power; or- an obstacle to the application of IHL; „Tribunals of the occupied territory continue to function

in respect of all offences” covered by such laws The occupying state may pass new laws necessary for

the administration of the occupied territory; to set up new courts

OBLIGATIONS OF THE OCCUPYING POWER

Provide the ocuppied teritory with food and medical supplies;

Maintain the medical services; Permit religious communities to function; Observe all rights of accused persons in penal

proceedings; Prohibition of:• annexation;• deportations;• colonization;• forced labour;• taking of hostages…

PROPERTY ON OCCUPIED TERRITORY

Private property- prohibition of pillage- prohibition of destruction (exception: military

necessity)- prohibition of confiscation- limited admissibility of requisitions Public property - OP only administrator and usufructuary - limited admissibility of confiscation (funds,

movable property used for military operations)- prohibition of destruction (exception: military

necessity)

Prolonged occupation

The temporary nature of occupation—is to safeguard the sovereignty of the ousted or prospective sovereign

What about Near East, Northern Cyprus, Tibet?

Are the purposes of occupation propicious for the occupied territory?

The U.N. Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 has proposed in his August 2007 report that an authoritative determination be requested from the I.C.J. on “the legal consequences of a prolonged occupation that has acquired some characteristics of apartheid and colonialism and has violated many of the basic obligations imposed on an occupying Power.”

INTERNMENT

Non-punitive preventive security measure

Example: Art. 78 GC IV „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 internment”

INTERNMENT – COMPARISON BETWEEN CI and POW

Differences: - basis for internment (Arts. 41, 42, 68, 78 GC IV)- procedural guarantees (appeal, obligation to re-examin such decisions - Art. 43 GC IV)

- end of internment (Art. 132 GC IV - as soon as the reasons which necessitated his / her internment no longer exist + special agreements) Similarities - treatment

HUMANITARIAN ASSISTANCE TO PROTECTED PERSONS

No absolute right to humanitarian assistance :• Art. 23 IV GC (for sick and wounded soldiers and

children under 15) – some conditions to be met;• Art. 59 IV GC (for civilian population in occupied

territories)- some conditions to be met;• Art. 70 PA I (for the whole civilian population

suffering from the lack of some supplies) – subject to the agreement of the parties concerned.

Problem of Neutral and Independent Humanitarian Action (NIHA)

WOMEN- PROTECTION General protection as civilian persons General protection as women (Art.

27§2 GC IV, Art. 76§1 PA I) Special protection of pregnant women,

maternity cases, nursing mothers, mothers of young children (e.g., 14,16, 17,21-23,38§5, 89,127 GC IV, 8, 70, 76§2 PA I)

Special protection of interned women

WOMEN - PROBLEMS

Categories Civilians Combatants or civilians taking part in

hostilities (collecting intelligence, suicide attackers, voluntary human shields)

Problems Sexual violence Displaced In detention Missing family members / widowhood

RAPE

breach of GC IV [Art. 27 para. 2], PA I [Art. 76] and PA II [Art. 4 para. 2 e];

grave breach of GC and of customary law = war crime [ICTY: Furundzija and Celebici cases; Statute ICC: Art. 8 para. 2 b (xxii) {i.a.c.} and e (vi) {n-i.a.c.}];

crime against humanity [Statute ICTR: Art. 3; Statute ICTY: Art. 5; Statute ICC: Art. 7 para. 1 g];

genocide [ICTR: Akayesu case; ICC: Elements of Crime];

torture [ICTY: Celebici case; ICTR: Akayesu case]; violation of Art. 3 common to GC and PA II [Art. 4

ICTR] S.C. Res. 1820 (2008) of 19 June 2008 –

widespread and systematic sexual violence against civilians constitutes a threat to international peace and security

CHILDREN - PROBLEMS Participation of children in hostilities Identification, family reunification Education, cultural environment Detention, death penalty Assistance and care (including after

sexual violence)

PARTICIPATION OF CHILDREN IN HOSTILITIES

PA I 1977 – Art. 77 Rights of the Child Conv. 1989 – Art.38 Optional Protocol CRC 2000 – Art. 1 – 4 African Charter on the Rights and

Welfare of the Child – Art. II and XXII Statute of the ICC – Art. 8 § 2 b (xxvi)

CHILDREN - PROTECTION General protection as civilian persons General protection as children (Art. 77 § 1 PA I) Special protection (Art. 14, 17, 23 – 26, 38 § 5, 49, 50, 51 §

2, 68 § 4, 76 § 5, 82, 85 § 2, 89, 94, 119 § 2, 132 GC IV, Art. 70 § 1, 74 - 78 PA I)

Protection of journalists

Unless war correspondents, journalists are civilians

No absolute « right to information » No right to enter a country without

authorisation Attempt to give an enhanced

protection to journalist in AP I (Art. 79)

Refugees and Internally Displaced Persons

Approximately 10 millions refugees in the world today: huge humanitarian problem of the asylum seekers.

Refugees have a specific protection (1951 Convention and 1967 Protocol relating to the Statute of Refugee) but are only marginally covered by IHL (see art.44 of GC IV and 73 of AP I): individual and status related approach in IRL vs. group / situation based approach in IHL

About 20 millions internally displaced persons (IDP), most of them in situations of armed conflicts and therefore covered by IHL

IHL – protection against arbitrary displacement – art. 49 GC IV, art. 17 PA II

Guiding principles for IDP presented in 1998 to the Human Rights Commission which took note of them (« soft law ») - 30 Principles identifying the rights and guarantees relevant to the protection of the IDP in all phases

- protection against arbitrary displacement- protection and assistance during displacement- guarantees for safe return, resettlement and reintegration

MISSING Sources: GC IV, Arts. 25 and 26 AP I, Art.32 - 34 2006 Convention for the Protection of All Persons from

Enforced Disappearance

Preventive measures Measures of identification 2006 Convention:

- Interdiction of summary excutions- Interdiction of secret detention

Right of families to know the fate of their relatives- Search for persons reported missing- Remains of deceased- Respect and maintenance of gravesites

IHL / HRL Differences:

temporal scope of application – during armed conflicts, dependent on the qualification of the situation / mainly in time of peace

nature – mainly interstate law protecting individuals against enemy state / mainly national law within the frames of international standards protecting individuals against own state

    

IHL / HRL Differences:

historical development and sources – mainly custom and universal treaties / custom less significant, many regional and soft law instruments

material scope of application - only most fundamental rights / all HR protected

 derogations – not allowed / allowed

IHL / HRL Differences:

personal scope of application – mainly individuals meeting certain conditions/ everyone

 monitoring institutions – mainly ICRC / many different governmental and non-governmental bodies

 

IHL / HRLSimilarities:

main goal – to protect human beings  nature in NIAC – to protect against “own”

enemy  personal scope of application – the most basic

guarantees in a.c. apply to all persons  monitoring institutions – HR bodies become

interested in protection of HR in every situations, including a.c.

 necessity to interpret IHL / HR according to HR / IHL standards – e.g. judicial guarantees / arbitrary deprivation of life in a.c.

ICJ Advisory Opinion of 2004 on Wall  

§ 103 : „Court […] considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effects of provisions for derogation of the kind to be found in Art. 4 of the ICCPR. It notes that there are thus three possible situations:

some rights may be exclusively matters of IHL; others may be exclusively matters of HRL; yet others may be matters of both these

branches of international law.

[…] The Court will have to take into consideration […] HRL and, as lex specialis, IHL.