6.3: Who and What Are Protected?

The Principle of Distinction

It is a fundamental principle of IHL that parties to a conflict must at all times distinguish between combatants and civilians and between military objects and civilian objects and to refrain from attacks against civilians and civilian objects. It is therefore important to know who will qualify as a combatant in an armed conflict situation. For current purposes it would suffice to mention two of the main categories. All members of the armed forces of a party to the conflict as well as members of militias or volunteer corps forming part of such armed forces will be classified as combatants. In the second instance, members of other militias or volunteer corps will likewise qualify for combatant status provided that they fulfil the following conditions: they must be under a responsible command; must have a distinctive emblem recognisable at a distance; must carry their arms openly; and must conduct their operations in accordance with the laws and customs of war (see Geneva Convention III, Article 4). As a consequence of this classification, all persons falling into any of these categories have a legal duty to distinguish themselves from the civilian population during each military engagement and for the duration of the engagement.

In giving effect to this principle of distinction, Article 48 of Protocol I to the Geneva Conventions contains the following unequivocal provision: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objects and accordingly shall direct their operations only against military objectives.” On the basis of this rule, Protocol I outlaws acts or threats of violence which have the primary purpose of spreading terror amongst the civilian population; indiscriminate attacks which employ a method of warfare that causes incidental loss in civilian lives disproportionate to the military objective; acts of reprisal against the civilian population; or the shielding of military objects by means of the presence or movement of civilians (Article 51). Protocol I also lists the civilian objects that should remain free from military attacks and prescribes the duties parties to the conflict have with regard to the precautionary measures they must take in complying with their obligations in terms of the Protocol (see Chapters III and IV of Protocol I).

Prisoners of War

A combatant who falls into the hands of the enemy is entitled to prisoner of war status and to be treated accordingly. This matter is regulated by Geneva Convention III and the basic rule on the treatment of prisoners of war is found in Article 13 which states as follows:

Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

In following this basic point of departure, Geneva Convention III contains an extensive array of rules covering matters such as the internment of prisoners of war; disciplinary proceedings against prisoners of war, the capture and transmission of information about prisoners of war and their repatriation after the end of hostilities. Moreover, if there is doubt whether a person who has fallen into the hands of the enemy forces belongs to any of the prisoner of war categories, such person shall enjoy the protection afforded under Geneva Convention III until such time as their status has been determined by a competent tribunal (Article 5). Also to be noted is that under Article 8 of the Rome Statute of the International Criminal Court, certain acts against prisoners of war could constitute war crimes.

The Wounded, Sick and Shipwrecked, and Aid Agencies

Geneva Conventions I and II as well as Protocol I contain the rules for the protection of the wounded, sick and shipwrecked and extends the protection to medical personnel and facilities, administrative support staff and religious personnel. These categories of persons must not be attacked and must be allowed to perform their duties on the battlefield.

Linked to this are the measures in the Geneva Conventions and Protocols to protect in times of armed conflict the use of emblems such as the red cross, the red crescent and the red crystal and to keep free from attack facilities where these emblems are displayed. In times of armed conflict these emblems are used to provide protection of medical personnel and facilities and medical means of transport. It therefore stands to reason that their misuse or abuse, which may constitute a war crime, must be prevented.

Refugees and Internally Displaced Persons

International law on refugees is regulated by the 1951 UN Convention Relating to the Status of Refugees and its 1967 Protocol. In this context ‘refugee’ is defined in narrow terms, describing a person who has fled his or her country based on a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and who, because of that fear is unable to return to his or her country of origin. However, it should be obvious to any observer of international events that armed conflicts are often the cause of large numbers of civilians fleeing to other countries to escape from hostilities and to find sanctuary elsewhere, quite often under auspices of the United Nations. It is therefore noteworthy that the 1969 Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa has adopted a wider definition of ‘refugee’ to include also those fleeing armed conflict situations. The provision is worded as follows:

The term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. (Article 1(2))

Under IHL war refugees will be entitled to the protection available to civilians in times of armed conflict and may therefore rely on the protective measures of Geneva Convention IV and Protocol I if they find themselves outside their national state and on the territory of one of the other parties to the armed conflict. As such they will be classified as protected persons in terms of the Geneva Conventions and will also be entitled to seek assistance from the International Committee of the Red Cross or other aid agency. The party to the conflict in whose hands such protected persons find themselves remains responsible for their treatment irrespective of any individual responsibility which may be incurred (See Geneva Convention IV, Articles 4, 29, 30). This responsibility includes the responsibility to facilitate, under certain conditions, the rapid and unimpeded passage of all relief consignments, equipment and personnel, even if destined for the civilian population of the adverse party (see Protocol I, art 70). Preventing relief operations from taking place could constitute a war crime under Article 8 of the Rome Statute of the International Criminal Court.

As opposed to refugees, displaced persons are civilians fleeing within their own country to escape armed conflict. They are therefore entitled to the protection afforded them by Common Article 3 to the Geneva Conventions and Protocol II to the Geneva Conventions. Article 18(2) of Protocol II, for instance, stipulates as follows:

If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.

The issues here are well-illustrated by the response of the UN Security Council in 1991 to the repression of the Iraqi civilian population, including in the Kurdish populated areas, by Saddam Hussein’s regime which led to massive flows of refugees towards and across international frontiers. In resolution 177 (1991), the Security Council insisted that Iraq allowed “immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq and to make available all necessary facilities for their operations …” (para. 3). In reaction to this resolution Operation Provide Comfort was launched, in which American, British and French armed forces established “safe havens” in northern Iraq, preventing military flights over the area and allowing Kurds to remain without fear of attack by Iraqi forces.