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Commentary - Definition of civilians and civilian population
    [p.609] Article 50 -- Definition of civilians and civilian population


    [p.610] 1907 This article reproduces almost word for word the provision contained in the 1973 draft (Article 45). It became clear that this very important Section of the Protocol required a definition of the persons to whom it applies in one of its first articles.

    1908 Article 4 of the fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War contains a definition of the persons protected by that Convention against arbitrary and wanton enemy action when they are in the power of the enemy; this is the main object of the Convention. However, Part II, entitled "General protection of populations against certain consequences of war" has a wider field of application; according to Article 13 , that Part covers "the whole of the populations of the countries in conflict". That definition is close to the definition of the civilian population given in Article 50 of the Protocol under consideration here.

    1909 In protecting civilians against the dangers of war, the important aspect is not so much their nationality as the inoffensive character of the persons to be spared and the situation in which they find themselves. The definition covers civilians individually as well as collectively when they are referred to as the "civilian population", a concept which can be found in many articles in the Protocol.

    1910 Some delegates wished the definition to be included in Article 2 ' (Definitions) ' (1) but the Conference preferred the present arrangement.

    Paragraph 1

    1911 As we have seen, the principle of the protection of the civilian population is inseparable from the principle of the distinction which should be made between military and civilian persons. In view of the latter principle, it is essential to have a clear definition of each of these categories.

    1912 In the course of history many definitions of the civilian population have been formulated, and everyone has an understanding of the meaning of this concept. However, all these definitions are lacking in precision, and it was desirable to lay down some more rigorous definition, particularly as the categories of persons they cover has varied.

    1913 Thus the Protocol adopted the only satisfactory solution, which is that of a negative definition, namely, that the civilian population is made up of persons who are not members of the armed forces.

    1914 This definition has the great advantage of being ' ne varietur. ' Its negative character is justified by the fact that the concepts of the civilian population and the armed forces are only conceived in opposition to each other, and that the latter constitutes a category of persons which is now clearly defined in international law and determined in an indisputable manner by the laws and regulations [p.611] of States. Therefore it was worth taking advantage of this possibility. It is clear that a negative definition of the civilian population implies that the meaning given to "armed forces" must be pointed out. This provision of the Protocol refers to the relevant article of the Third Convention and to Article 43 of the Protocol ' (Armed forces), ' which supplements it.

    1915 The paragraph under consideration here therefore follows a process of elimination and removes from the definition those persons who could by and large be termed "combatants". Therefore, according to Article 4 A of the Third Convention, the following are excluded:

    "1) 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.
    2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

    a) that of being commanded by a person responsible for his subordinates;
    b) that of having a fixed distinctive sign recognizable at a distance;
    c) that of carrying arms openly;
    d) that of conducting their operations in accordance with the laws and customs of war.

    3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
    [...]
    6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war."

    1916 Paragraph 1 also refers to Article 43 of the Protocol ' (Armed forces), ' which contains a new definition of armed forces covering the different categories of the above-mentioned Article 4 of the Third Convention.

    1917 In other words, apart from members of the armed forces, everybody physically present in a territory is a civilian.

    1918 The last sentence of paragraph 1 gave rise to some discussion in the Diplomatic Conference. According to the ICRC draft there was "presumption" of civilian status, but this concept led to some problems and the Working Group decided to replace "presumed" by "considered". (2)

    1919 Other delegates thought that the definition might be in conflict with Article 5 of the Third Geneva Convention. Paragraph 2 of that article reads as follows:

    [p.612]
    "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

    1920 The result of the discussions which took place on this subject was that there could be no contradiction between the two definitions, which are concerned with very different situations. (3) In the case of the Third Convention the persons concerned have committed a belligerent act and claim the status of combatants, and therefore ask to be treated as prisoners of war. Article 50 of the Protocol 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.

    1921 The methods combatants use will certainly have an influence on the application of this provision. Thus, for example, if combatants do not clearly distinguish themselves from the civilian population in accordance with the provisions of Article 44 ' (Combatants and prisoners of war), ' this could result in a weakening of the immunity granted civilians and the civilian population.

    Paragraphs 2 and 3

    1922 The second paragraph provides that "the civilian population comprises all persons who are civilians". However, in wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population. It is also clear that as laid down in Article 58 ' (precautions against the effects of attacks) ' belligerents should remove the civilian population, civilians and civilian objects under their authority from the vicinity of military objectives. A military unit is by definition a military objective and should not be placed in the middle of a civilian population.

    ' C. P./ J. P. '


    NOTES

    (1) [(1) p.610] See O.R. XIV, p. 80, CDDH/III/SR.10, para. 18 (with reference to doc. CDDH/III/66, not published in the Offical Records);

    (2) [(2) p.611] O.R. XV, p. 239, CDDH/50/Rev.1, para. 39;

    (3) [(3) p.612] Ibid;