Practice Relating to Rule 6. Civilians’ Loss of Protection from Attack
Section C. Situations of doubt as to the character of a person
Additional Protocol I
Article 50(1) of the 1977 Additional Protocol I provides: “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”
Additional Protocol II (draft)
Article 25(4) of the draft Additional Protocol II, adopted by Committee III of the CDDH, provided: “In case of doubt as to whether a person is a civilian, he or she shall be considered to be a civilian”.
This draft provision was adopted by consensus by Committee III.
Eventually, however, it was deleted in the plenary by consensus.
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Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 50(1) of the 1977 Additional Protocol I.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 50(1) of the 1977 Additional Protocol I.
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Argentina
Argentina’s Law of War Manual (1989) states: “In case of doubt about the qualification of a person, that person must be considered to be civilian.”
Australia
Australia’s Defence Force Manual (1994) states: “In cases of doubt about civilian status, the benefit of the doubt is given to the person concerned.”
Australia
Australia’s LOAC Manual (2006) states: “In cases of doubt about civilian status, the benefit of the doubt must be given to the person concerned.”
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “In case of doubt about the status of a person, that person must be considered to be a civilian.”
Cameroon
Cameroon’s Instructor’s Manual (1992) states: “The benefit of the doubt confers upon a person the status of civilian.”
Cameroon
Cameroon’s Instructor’s Manual (2006) states: “Persons who do not belong to the Armed Forces and do not participate in a ‘levée en masse’ are considered civilians. In situations of doubt, civilian status should be accorded to the person in question.”
Canada
Canada’s LOAC Manual (1999) states: “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting: “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”
Colombia
Colombia’s Instructors’ Manual (1999) states: “In case of doubt whether a person is civilian or not, that person must be considered to be civilian.”
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers): “Civilians must not be attacked. A civilian is a person who is not a member of the armed forces. In case of doubt, a person must be treated as a civilian.”
Croatia
Croatia’s LOAC Compendium (1991) states that, in case of doubt, persons have to be considered as civilians.
Dominican Republic
The Dominican Republic’s Military Manual (1980) states:
All persons participating in military operations or activities are considered combatants [and proper targets for attack]. Those who do not participate in such actions are non-combatants. This distinction is not always easy to make. Uniformed, armed soldiers are easily recognizable. However, guerrillas often mix with the civilians, perform undercover operations, and dress in civilian clothes. Alertness and caution must guide you in deciding who is a combatant.
Hungary
Hungary’s Military Manual (1992) states that, in case of doubt, persons have to be considered as civilians.
Kenya
Kenya’s LOAC Manual (1997) states: “In case of doubt whether a person is a civilian or not, that person shall be considered a civilian.”
Madagascar
Madagascar’s Military Manual (1994) states: “In case of doubt about the status of a person, that person shall be considered to be civilian.”
Netherlands
The Military Manual (1993) of the Netherlands states: “In case of doubt whether a person is civilian, that person is considered to be a civilian.”
Netherlands
The Military Manual (2005) of the Netherlands states: “If there is any doubt whether someone is a civilian, he or she is treated as a civilian.”
In its chapter on the protection of the civilian population, the manual states: “If there is any uncertainty whether someone is a genuine civilian, this person is given the benefit of the doubt pending proof to the contrary, and must be treated as a civilian.”
Philippines
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) notes in its glossary: “Civilian person – means any person who does not belong to the armed forces and does not take part in a ‘levee en masse.’ In case of doubt whether a person is a civilian or not, that person shall be considered as a civilian.”
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states: “In case of doubt whether a person is a civilian, that person shall be considered a civilian.”
South Africa
South Africa’s LOAC Manual (1996) contains a rule identical to that in Article 50(1) of the 1977 Additional Protocol I.
South Africa
South Africa’s Revised Civic Education Manual (2004) states: “In cases of doubt as to whether a person is a civilian or not, that person shall be considered to be a civilian.”
Spain
Spain’s LOAC Manual (1996) contains a rule identical to that in Article 50(1) of the 1977 Additional Protocol I.
Spain
Spain’s LOAC Manual (2007) states: “If there is any doubt about whether a person is a civilian or not, that person must be presumed to be a civilian.”
Sweden
Sweden’s IHL Manual (1991) states: “Where there is doubt whether a person is to be considered as a combatant or as a civilian, the person shall be considered as a civilian.”
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “Civilians are persons who are not members of the armed forces. In cases of doubt, persons are considered to be civilians.”
The manual specifies:
In the practical application of the principle of civilian immunity and the rule of doubt, (a) commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time, (b) it is only in cases of substantial doubt after this assessment about the status of the individual in question, that the latter should be given the benefit of the doubt and treated as a civilian, and (c) the rule of doubt does not override the commander’s duty to protect the safety of troops under his command or to preserve the military situation.
United States of America
According to the Report on US Practice, the US military manuals do not adopt the position that in case of doubt a person shall be considered as civilian.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “In case of doubt a person shall be considered as a civilian until proven otherwise.”
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Croatia
On the basis of Croatia’s Constitution (1990) and Defence Law (1993), the Report on the Practice of Croatia states that Article 50 of the 1977 Additional Protocol I is directly applicable in Croatia’s internal legal order.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 50(1), is a punishable offence.
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment.
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Egypt
On the basis of a proposal submitted by Egypt during the CDDH, the Report on the Practice of Egypt states: “To ensure more protection for civilians, Egypt is of the opinion that in case of doubt as to whether a person is a civilian, he or she shall be deemed to be so.”
France
Upon ratification of the 1977 Additional Protocol I, France stated:
The rule set out in the second sentence of the first paragraph of Article 50 [of the 1977 Additional Protocol I] cannot be interpreted as requiring a commander to take a decision which, according to the circumstances and information available to him, might not be compatible with his duty to ensure the safety of the troops under his command or to preserve his military situation, in conformity with other provisions of [the 1977 Additional Protocol I].
Malaysia
The Report on the Practice of Malaysia refers to the presumption of civilian character, adding that it governed the behaviour of the armed forces during the campaign against the communist insurgency.
Nigeria
The Report on the Practice of Nigeria states that a presumption of civilian character is held in case of doubt. It adds that during the Nigerian civil war, “the Federal Forces in situations of such doubt did not off-handedly indict or take away individuals of such doubtful civilian character”. They subjected such individuals to a test, in order to determine
the degree of hardness of … their fingers used in handling the trigger. Those found with hardened fingers were presumed to be soldiers (combatants). Although this is an unscientific method of identification, it nonetheless shows that Nigerian practice does not prima facie attribute the status of combatant to individuals of doubtful civilian character.
United Kingdom of Great Britain and Northern Ireland
Upon ratification of the 1977 Additional Protocol I, the United Kingdom expressed its understanding of the presumption of civilian character as only applicable
in cases of substantial doubt still remaining after the assessment [of the information from all sources which is reasonably available to military commanders at the relevant time] has been made, and not as overriding a commander’s duty to protect the safety of troops under his command or to preserve his military situation, in conformity with other provisions of [the 1977 Additional Protocol I].
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Commons, the UK Secretary of State for Defence, Mr Hoon, stated in reply to a question by a Member:
Alan Simpson (Nottingham, South): There have been some civilian casualties for which I am sure that even the Secretary of State would accept that there is a clear line of responsibility. They would include the seven women and children who were killed at a checkpoint and the 15 members of a single family who were killed when their lorry was attacked by an Apache helicopter. Will the Secretary of State tell the House whether current UK rules of engagement allow for such attacks on civilians; whether the rules of engagement for UK troops differ from those of US troops; whether he will place in the House of Commons Library the details of the two sets of rules of engagement; and whether he will confirm that, as has happened previously, any UK troops who were involved in instances of unjustified killings of civilians would be likely to face criminal charges?
Mr. Hoon: We do not comment in detail on rules of engagement, and certainly not on those of the United States. I would be a lot more persuaded by my hon. friend’s observations if, at the same time as mentioning the tragic deaths of seven women and children, he had also mentioned the deaths of the four US marines who were killed in a deliberate car bomb attack, perpetrated by a fanatic. In such circumstances, it is perhaps perfectly understandable – although I am not excusing it in any sense at all – that soldiers who are having to deal with a difficult situation at a checkpoint and who know that four of their comrades have been killed in that way are perhaps reacting in a way that we might not want them to. That is not to say that the accounts that have been given, again, by particular journalists are necessarily the only version of events that we should all accept. An investigation is going on into what went on at the checkpoints, and it is important that we await the outcome of that before judging the facts quite so prejudicially.
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International Criminal Tribunal for the former Yugoslavia
In its judgement in the Galić case in 2003, the ICTY Trial Chamber stated, inter alia:
The presence of individual combatants within the population does not change its civilian character. In order to promote the protection of civilians, combatants are under the obligation to distinguish themselves at all times from the civilian population; the generally accepted practice is that they do so by wearing uniforms, or at least a distinctive sign, and by carrying their weapons openly. In certain situations it may be difficult to ascertain the status of particular persons in the population. The clothing, activity, age, or sex of a person are among the factors which may be considered in deciding whether he or she is a civilian. A person shall be considered to be a civilian for as long as there is a doubt as to his or her real status. The Commentary to Additional Protocol I explains that the presumption of civilian status concerns “persons who have not committed hostile acts, but whose status seems doubtful because of the circumstances. They should be considered to be civilians until further information is available, and should therefore not be attacked”. The Trial Chamber understands that a person shall not be made the object of attack when it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the potential target is a combatant.
International Criminal Tribunal for the former Yugoslavia
In its judgement in the Dragomir Milošević case in 2007, the ICTY Trial Chamber stated:
The generally accepted practice is that combatants distinguish themselves by wearing uniforms, or, at the least, a distinctive sign, and by carrying their weapons openly. Other factors that may help determine whether a person is a civilian include his or her clothing, activity, age or sex. In cases of doubt whether a person is a civilian, that person shall be considered to be a civilian. As stated in the Commentary on Additional Protocol I, the presumption of civilian status applies to:
“[p]ersons who have not committed hostile acts, but whose status seems doubtful because of the circumstances. They should be considered to be civilians until further information is available, and should therefore not be attacked.”
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “In case of doubt whether a person is a civilian or not, that person shall be considered as a civilian.”
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