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Commentary - Protection of the civilian population
    [p.1447] Article 13 -- Protection of the civilian population


    [p.1448] General remarks

    4761 Article 13 codifies the general principle that protection is due to the civilian population against the dangers of hostilities, already recognized by customary international law and by the laws of war as a whole. This principle is translated into a specific rule in paragraph 2, with the absolute prohibition of direct attacks and of acts or threats of violence committed with a view to spreading terror. Paragraph 3 defines the field of application of the general principle ' ratione personae: ' civilians lose their right to protection under the whole of Part IV if they take part in hostilities, and throughout the duration of such participation.

    4762 Both as regards substance and structure, this article corresponds to the first three paragraphs of Article 51 of Protocol I ' (Protection of the civilian population), ' and reference may also be made to the commentary thereon. (1) Unlike Protocol I, which contains detailed rules, only the fundamental principles on protection for the civilian population are formulated in Protocol II and it is done in a very rudimentary form in this article, even though its constitutes the basis of Part IV.

    4763 The draft submitted by the ICRC, and adopted in Committee, had three provisions: Article 24: Basic rules; Article 25: Definitions: Article 26: Protection of the civilian population. (2) In accordance with the amendment submitted by the Pakistani delegation when the instrument was finally adopted in the plenary meetings, only the first paragraphs of Article 26 of the draft were retained. (3) These constitute Article 13 in its present form.

    4764 This radical simplification does not reduce the degree of protection which was initially envisaged, for despite its brevity, Article 13 reflects the most fundamental rules. How to implement them is the responsibility of the parties, and this means that the safety measures they are obliged to take under the rule on protection will have to be developed so as to best suit each situation, the infrastructure available and the means at their disposal.

    Paragraph 1

    4765 This paragraph lays down the general principle that protection is due to the civilian population, which forms the cornerstone of Part IV.

    [p.1449] ' First sentence '

    4766 The term "civilian population" is the usual term for referring to civilians as a group. The text refers simultaneously to the civilian population and to individual civilians to indicate that the civilian population is protected as a whole in the same way as the individuals which constitute it.

    4767 The general protection covers all civilians, without any distinction. The term "general protection" is used in contrast to the special protection designed to give additional protection to certain categories of individuals belonging to the civilian population (the wounded and sick, children, medical personnel etc.). (4) Special protection does not replace the general protection but adds to it.

    4768 What is meant by the phrase "general protection against the dangers arising from military operations"? In other words, what is the scope of the general principle of protection?

    4769 "Military operations" refers to movements of attack or defence by the armed forces in action. (5) They present the civilian population with two types of danger; on the one hand, that of attacks as such and, on the other, the incidental effects of attacks.

    4770 Protection covers "the dangers arising from military operations". This means that the obligation does not consist only in abstaining from attacks, but also in avoiding, or in any case reducing to a minimum, incidental losses, and in taking safety measures.

    4771 To ensure general protection for the civilian population consequently implies:

    1) an absolute prohibition of direct attack against the civilian population as such, or against civilians; this prohibition is specifically mentioned in paragraph 2 discussed below;
    2) reducing the effects of military operations which could affect protected persons.

    4772 The implementation of such protection requires that precautions are taken both by the party launching the attack during the planning, decision and action stages of the attack, and by the party that is attacked. For example; military installations should not be intentionally placed in the midst of a concentration of civilians with a view to using the latter as a shield or for the purpose of making the adverse party abandon an attack, without forgetting any other safety measures which are not explicitly laid down in Protocol II. (6) Each party should, in good faith, design such measures and adapt them to the specific circumstances, bearing in mind the means available to it, and based on the general principles relating to the protection of the civilian population which apply irrespective of whether the conflict is an international or an internal one. It is appropriate to recall here the most important of these principles, i.e., the principle to use the minimum force [p.1450] required to harm the enemy, the principle of distinction and the principle of proportionality which only intervenes when it is not possible to ensure the total immunity of the population:

    -- parties engaged in a conflict do not have an unlimited right as regards the means of injuring the enemy; (7)
    -- a distinction should be made at all times between persons participating in hostilities and the civilian population, so that the latter may be spared as far as possible; (8)
    -- the relation between the direct advantage anticipated from an attack and the harmful effects which could result on the persons and objects protected (9) should be considered in advance.

    ' Second sentence '

    4773 "To give effect to this protection": the use of this phrase does not imply that protection is only considered in case of military operations. (10) In fact, the Protocol contains other rules to be observed in all circumstances by armed forces or armed groups, and these also help to make the protection of the civilian population effective. (11)

    4774 This paragraph is worded in the same way as Article 51 ' (Protection of the civilian population), ' paragraph 1, of Protocol I, though without including a reference to other applicable rules of international law. (12)

    4775 Applicable international law includes customary international law, whether or not it has been codified, in addition to treatylaw. (13) That follows from the general theory of international law and from the very nature of customary international law. The question may well be asked whether the reference to international law was intentionally omitted in order to suggest that customary law is deemed not to apply to situations of non-international armed conflict.

    [p.1451] 4776 It would seem that this is not the case. The discussions in the Conference do not indicate that any doubt was cast on the applicability of customary law. The reference to other rules of international law was probably omitted because it was not considered necessary, given that the only rule explicitly laid down for non-international armed conflicts is common Article 3 of the 1949 Conventions, which does not contain provisions relating to the protection of the civilian population as such. (14)

    Paragraph 2

    ' First sentence '

    4777 This sentence lays down an absolute obligation applicable at all times: "The civilian population as such, as well as individual civilians, shall not be the object of attack."

    ' Scope of the rule '

    4778 Civilians, whether in groups or individually, may not be made the object of an attack.

    4779 This rule prohibits launching direct attacks against the civilian population. On the other hand, secondary effects of military operations directed against military objectives, (15) which might incidentally affect the civilian population, are not specifically referred to here. (16)

    4780 The prohibition of direct attack is further corroborated by the use of the expression "the civilian population as such", taken from the United Nations resolutions on this question. (17)

    ' Individuals within the civilian population '

    4781 Article 25, paragraph 3, of the draft adopted in Committee provided that: "The presence, within the civilian population, of individuals who do not fall within the definition of civilians does not deprive the population of its civilian [p.1452] character." (18) This rule, which is contained in Article 50 ' (Definition of civilians and civilian population), ' paragraph 3, of Protocol I, was not included in Protocol II.

    4782 It cannot be denied that in situations of non-international armed conflict in particular, the civilian population sometimes shelters certain combatants, and it may be difficult to ascertain the status of individuals making up the population. However, we must point out that if the mere presence of some individuals not protected under paragraph 3 of this article were to permit an attack against a whole group of civilians, the protection enjoyed by the civilian population would become totally illusory. Thus the fact that the Protocol is silent on this point, as on other points, should not be considered to be a licence to attack.

    ' Definition of attack '

    4783 Protocol I defines attacks. This term has the same meaning in Protocol II. (19) Article 49 ' (Definitions of attacks and scope of application), ' paragraph 1, of Protocol I, reads as follows "Attacks" means acts of violence against the adversary, whether in offence or defence." The fact that both attacks in offence or in defence are covered is because the term "attacks" does not cover only acts by those who have initiated the offensive; it is a technical term relating to a specific military operation limited in time and place. (20)

    4784 It should be noted that the prohibition of attacks against the civilian population as such, and against individual civilians, remains valid, even if the adversary has committed breaches. (21) Acts of terrorism, collective punishment and pillage are expressly forbidden in Article 4 ' (Fundamental guarantees) ' of the Protocol. (22) Even unlawful acts on the part of the adverse party cannot justify such measures. Furthermore, a denunciation of the Protocol would not take effect until the end of the armed conflict and could not serve as a justification for failing to fulfil obligations incurred under it. (23)

    [p.1453] ' Second sentence '

    4785 "Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited." Attacks aimed at terrorizing are just one type of attack, but they are particularly reprehensible. Attempts have been made for a long time to prohibit such attacks, for they are frequent and inflict particularly cruel suffering upon the civilian population. Thus the Draft Rules of Aerial Warfare, prepared in The Hague in 1922, already prohibited such attacks. (24) Air raids have often been used as a means of terrorizing the population, but these are not the only methods. For this reason the text contains a much broader expression, namely "acts or threats of violence" so as to cover all possible circumstances.

    4786 Any attack is likely to intimidate the civilian population. The attacks or threats concerned here are therefore those, the primary purpose of which is to spread terror, as one delegate stated during the debates at the Conference. (25)

    Paragraph 3

    4787 This paragraph defines when civilians are protected: civilians lose their right to protection under this Part if they take a direct part in hostilities and throughout the duration of such participation. The term "direct part in hostilities" is taken from common Article 3 , where it was used for the first time. It implies that there is a sufficient causal relationship between the act of participation and its immediate consequences.

    4788 Hostilities have been defined as "acts of war that by their nature or purpose struck at the personnel and ' matériel ' of enemy armed forces". (26) However, several delegations considered that the term "hostilities" also covers preparations for combat and returning from combat. (27)

    4789 Those who belong to armed forces or armed groups may be attacked at any time. If a civilian participates directly in hostilities, it is clear that he will not enjoy any protection against attacks for as long as his participation lasts. Thereafter, as he no longer presents any danger for the adversary, he may not be attacked; moreover, in case of doubt regarding the status of an individual, he is presumed to be a civilian. Anyone suspected of having taken part in hostilities and deprived of his liberty for this reason will have the benefit of the provisions laid down in Articles 4 ' (Fundamental guarantees), ' 5 ' (Persons whose liberty has been restricted), ' and 6 ' (Penal prosecutions). ' (28)

    ' S.J. '


    * (1) [(1) p.1448] See commentary Art. 51, Protocol I, supra, p. 613;

    (2) [(2) p.1448] ICRC draft Arts. 24, 25 and 26; see also O.R. XV, pp. 319-321, CDDH/215/Rev.1;

    (3) [(3) p.1448] See O.R. IV, pp. 72, 74 and 81, CDDH/427;

    (4) [(4) p.1449] ' CE 1971, Report ', pp. 77-78, paras. 441-445;

    (5) [(5) p.1449] (5) O.R. XIV, p. 14, CDDH/III/SR.2, para. 8;

    (6) [(6) p.1449] On the other hand, in Protocol I conditions of attack and precautionary measures are dealt with in specific rules which develop the general principle of protection (see Arts. 48-58 of Protocol 1 and the commentary thereon, supra, pp. 597-695);

    (7) [(7) p.1450] This principle was formulated in Art. 22 of the Hague Regulations Respecting the Laws and Customs of War on Land and reaffirmed in the resolutions of the Red Cross, particularly Resolution XXVIII of the XXth International Conference, Vienna, 1965;

    (8) [(8) p.1450] This principle was expressed in particular in Resolution XXVIII of the XXth International Conference of the Red Cross and Resolution 2575 (XXV) of the United Nations General Assembly;

    (9) [(9) p.1450] The principle of proportionality is expressly set out in Art. 57, para. 2(b), of Protocol I, which reads as follows: "an attack shall be cancelled or suspended if it becomes apparent [...] that the attack 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"; see supra, p. 686. It should be noted that civilian objects do not enjoy general protection under Protocol II. Only those objects which must be protected as being essential for the needs of the civilian population are taken into consideration;

    (10) [(10) p.1450] See O.R. XV, p. 329, CDDH/III/224;

    (11) [(11) p.1450] For example, Art. 4, para. 2(b), (c) and d);

    (12) [(12) p.1450] Art. 51, para. 1, of Protocol I: "To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances"; see supra, p. 617;

    (13) [(13) p.1450] This view also emerged from the discussions in Committee; see O.R. XIV, p. 15, CDDH/III/ SR.2, para. 13, for example;

    (14) [(14) p.1451] See O.R. XV, p. 363, CDDH/III/275;

    (15) [(15) p.1451] As regards military objectives, these are defined as follows in Art. 52, para. 2, of Protocol I: objects which by their nature, location, purpose or use make an effective contribution to military action, and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage". See the commentary on this provision, supra, p. 635;

    (16) [(16) p.1451] Secondary effects are taken into consideration in the concept of "general protection against the dangers arising from military operations"; see, supra, p. 1449;

    (17) [(17) p.1451] See Resolution 2444 (XXIII), para. 1(b), and Resolution 2675 (XXV), para. 4; see also ' Commentary Drafts, ' p. 56 (Art. 26);

    (18) [(18) p.1452] O.R. XV, p. 320, CDDH/215/Rev.1;

    (19) [(19) p.1452] From the beginning of the work of the Conference it was agreed that the same meaning should be given this term in both Protocols. See ' Commentary Drafts, ' p. 157; this definition is based on Art. 3 of the Draft Rules of 1956. See also, supra, p. 602;

    (20) [(20) p.1452] It is important not to confuse the concept of attack in the sense of the Protocol, with that of aggression; see ' Commentary Drafts ', pp. 54-55;

    (21) [(21) p.1452] Humanitarian law applies without conditions of reciprocity. Cf. on this point, J. de Preux, "The Geneva Conventions and Reciprocity", op. cit., pp. 25-29;

    (22) [(22) p.1452] Art. 4, para. 2(b), (d) and (g): it was thought that "reprisals" were a precise legal concept applicable only to situations of international armed conflict. This problem was discussed at length during the Conference. See commentary Art. 4, para. 2(b), for more detailed discussion, supra, p. 1372, note 18, and p. 1374;

    (23) [(23) p.1452] Art. 25 of the Protocol (Denunciation) and the commentary thereon, infra, p. 1501;

    (24) [(24) p.1452] Rules Relating to Aerial Warfare and Rules Concerning the Use of Radio in Time of War, drawn up by the Commission of Jurists which was given the task of examining and reporting on the revision of the laws of war, Article 22;

    (25) [(25) p.1453] O.R. XIV, p. 65, CDDH/III/SR.8, para. 54;

    (26) [(26) p.1453] Ibid., p. 14, CDDH/III/SR.2, para. 8;

    (27) [(27) p.1453] O.R. XV, p. 330, CDDH/III/224;

    (28) [(28) p.1453] See commentary Arts. 4, 5 and 6, supra, pp. 1367-1402;