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Commentary - Part IV : Civilian population
    [p.1143] Part IV -- Civilian population


    Introduction

    4749 This Part is aimed at developing the legal protection to which the civilian population is entitled. It is based on the principles of the law of war: in an armed conflict the object is to damage the military potential of the adverse Party in order to obtain a decisive advantage, and civilians who do not participate in hostilities should be spared. In this Part we have a confirmation of treaty and customary law on this subject.

    4750 The principle of the immunity of those who do not participate directly in hostilities has in fact been recognized for a long time, in situations of both national and international armed conflict. Thus, in 1863, the Lieber Code already provided that "an unarmed citizen is to be spared in person, property, and honor, as much as the exigencies of war will permit". (1) Although it was subject to reservation on [p.1444] military necessity, the fact remains that the principle as such was nevertheless already recognized. (2)

    4751 As regards situations of non-international armed conflict, the law of Geneva had only until now provided protection under common Article 3 of the 1949 Conventions, which provides that: "persons taking no active part in the hostilities [...] shall in all circumstances be treated humanely".

    4752 Since the Second World War the type of weapons developed and the widespread use of guerrilla warfare as a method of combat have resulted in growing numbers of victims amongst the civilian population, particularly in internal armed conflicts, which are becoming increasingly common.

    4753 This problem has been a continuous matter of concern to the ICRC, which submitted Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War at the International Conference of the Red Cross in 1957 (New Delhi). (3) Based on the idea that the civilian population required the same protection, regardless of the legal qualification of the conflict, the Draft provided a set of rules applicable both to international and non-international armed conflicts. (4) Although this initiative was generally well-received in Red Cross circles, it was unfortunately not followed up by governments. (5) The fundamental principles of protection which the draft laid down were subsequently reaffirmed, first in a number of resolutions of the International Conference of the Red Cross, and later by those of the United Nations. To mention the most important in chronological order, these include: Resolution XXVIII of the XXth International Conference of the Red Cross, and Resolutions 2444 (XXIII) and 2675 (XXV) of the United Nations General Assembly, adopted respectively in 1965, 1968 and 1970.

    4754 Ever since the United Nations began to encourage the development of international humanitarian law from 1968 onwards, it focused attention in particular on the problem of protecting the civilian population. The above-mentioned Resolution 2675 (XXV) reiterates and summarizes the "basic principles for the protection of civilian populations in armed conflicts". (6)

    [p.1445] 4755 Even after the adoption of the Protocols this resolution continues to be an important point of reference. These basic principles were adopted unanimously and can in fact be of help in interpreting the rules summarily expressed in Protocol II. (7)

    4756 The problem of how to protect the civilian population was dealt with in a general way in both the United Nations and International Red Cross resolutions, without a distinction being made between the various types of conflict.

    4757 In its first studies on a new development of humanitarian law, the ICRC retained the same approach. (8) It became clear that unduly detailed rules for non-international armed conflicts would undoubtedly be more difficult for governments to accept and for the parties in such special circumstances to apply; for this reason the principle was adopted in 1972 that two separate régimes were needed. (9) The proposals put forward for Protocol II, though based on those for Protocol I, were simplified. In its draft the ICRC had taken care to make a distinction between basic rules and rules of application so as not to jeopardize the acceptance of the former. (10)

    4758 A number of acts specifically prohibited by Protocol I are not mentioned in Protocol II; nevertheless, they may not be considered to be legitimate. Despite its brevity, this Part significantly reinforces the protection of the civilian population because of the fundamental nature of the rules it lays down. (11)

    [p.1446] 4759 Article 13 ' (Protection of the civilian population) ' sets out first of all the general principle of protection, i.e. the immunity to which the population is entitled under the law. This, in particular, implies an absolute prohibition of certain methods of combat: direct attacks against the civilian population and intimidation (Article 13 -- ' Protection of the civilian population, ' paragraph 2), starvation (Article 14 -- ' Protection of objects indispensable to the survival of the civilian population ') and forced movements (Article 17 -- ' Prohibition of forced movements of civilians '). Civilian objects do not enjoy a general protection, but some are protected because of their nature and function, in order to ensure that the civilian population will be safeguarded. These are objects indispensable to their survival (Article 14 -- ' Protection of objects indispensable to the civilian population '), works and installations containing dangerous forces (Article 15 -- ' Protection of works and installations containing dangerous forces '), and cultural objects and places of worship (Article 16 -- ' Protection of cultural objects and places of worship '). Finally, Article 18 ' (Relief societies and relief actions) ' provides for the organization of relief actions nationally, (paragraph 1)internationally (paragraph 2).

    4760 This simple text has the advantage of not raising the threshold for application of the Protocol; the ability of the armed opposition to respect these provisions would undoubtedly be more readily contested if unduly elaborate precautionary measures had been prescribed. The disadvantage is that there is a lack of precision on practical points, which leads to a need for interpretation. (12)

    ' S.J. '


    * (1) [(1) p.1443] F. Lieber, op. cit., Art. 22;

    (2) [(2) p.1444] For the definition of military necessity, see commentary on Part IV of Protocol I, and in particular, Art. 54, para. 5, supra, pp. 583 and 658;

    (3) [(3) p.1444] Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, ICRC, Geneva, 1956;

    (4) [(4) p.1444] Ibid., Art. 2(b): the present rules apply in case of non-international armed conflict;

    (5) [(5) p.1444] See the General introduction to the Protocol, supra;

    (6) [(6) p.1444] "The General Assembly [...] Affirms the following basic principles for the protection of civilian populations in armed conflicts, without prejudice to their future elaboration within the framework of progressive development of the international law of armed conflict:
    1. Fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict.
    2. In the conduct of military operations during armed conflicts, a distinction must be made at all times between persons actively taking part in the hostilities and civilian populations.
    3. In the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury, loss or damage to civilian
    populations.
    4. Civilian populations as such should not be the object
    of military operations.
    5. Dwellings or other installations that are used only by civilian populations should not be the object of military operations.
    6. Places or areas designated for the sole protection of civilians, such as hospital zones or similar refuges, should not be the object of military operations.
    7. Civilian populations, or individual members thereof, should not be the object of reprisals, forcible transfers or other assault on their integrity.
    8. The provision of international relief to civilian populations is in conformity with the humanitarian principles of the Charter of the United Nations, the Universal Declaration of Human Rights and other international instruments in the field of human rights. The Declaration of Principles for International Humanitarian Relief to the Civilian Population in Disaster Situations, as laid down in resolution XXVI adopted by the twenty-first International Conference of the Red Cross, shall apply in situations of armed conflict, and all parties to a conflict should make every effort to facilitate this application.";

    (7) [(7) p.1445] The work of the Institute of International Law may also serve as a source of information on legal writings, since although it has no binding legal force, it constitutes a subsidiary source of guidance that is widely recognized internationally. It is appropriate to refer here to the resolution adopted in Edinburgh entitled "The distinction between military objectives and non-military objects in general, and particularly the problems associated with weapons of mass destruction", which lists a number of rules for the conduct of hostilities applicable in all situations of conflict. 53 ' Annuaire IDI 2, ' September 1969, pp. 48-126 and pp. 375-377;

    (8) [(8) p.1445] See "Questionnaire aux experts" in 1970 and the 1971 draft;

    (9) [(9) p.1445] Cf. the General introduction to the Protocol, supra, p. 1329;

    (10) [(10) p.1445] ' CE 1971, Report ', para. 146;

    (11) [(11) p.1445] The negotiation of the articles of the two Protocols was carried out simultaneously on parallel lines. This working method, which was followed by the Committees of the Conference, has made it possible to use identical terminology in the two instruments which should avoid divergent interpretations. During the first stage this simultaneous negotiation led to the adoption in Committee of more detailed rules than those initially envisaged in the draft for Protocol II. The final version adopted in plenary meeting had been simplified, to be even shorter than the initial draft;

    (12) [(12) p.1445] In this respect the rules of Protocol I serve as a point of reference for those who will have to assume responsibility for military operations. See Arts. 50-58 of Protocol I, and in particular, Art. 51, paras. 4-8, and Arts. 57 and 58, concerning precautions in attack, supra, p. 609;