The continued importance of International Humanitarian Law in protecting civilians in conflict

The Fourth Geneva Convention

Prior to World War II, there was no specific international legal norm that aimed to protect civilians in conflicts. The mass civilian casualties in World War II prompted the international community to adopt the Fourth Geneva Convention on the Protection of Civilians in Time of War in 1949, stretching the international humanitarian law protections beyond wounded, sick, shipwrecked and captured combatants.

Also known as the “civilians’ convention”, the Fourth Geneva Convention formally recognised that war conducted as ‘total war’ no longer primarily armed forces and groups, and established legal protections for any persons (and their property) not covered by the previous three Geneva Conventions. Additional Protocols to the Geneva Convention adopted in 1977 reinforced these protections for civilians.

To date, 196 States have become party to the Fourth Geneva Convention, resulting in near universal agreement on the need to protect civilians in international, as well as non-international, armed conflicts. The consensus on the need to protect civilians in conflicts was reemphasised by the United Nations’ Security Council’s 1999 resolution on the protection of civilians in armed conflict, applying the international humanitarian norms of the Geneva Convention to peacekeeping missions.

The International Committee of the Red Cross provides a helpful summary of what the primary forms of protection contained within the Fourth Geneva Convention and its Additional Protocols are:

IHL provides that civilians under the power of enemy forces must be treated humanely in all circumstances, without any adverse distinction. They must be protected against all forms of violence and degrading treatment, including murder and torture. Moreover, in case of prosecution, they are entitled to a fair trial affording all essential judicial guarantees.

The protection of civilians extends to those trying to help them, in particular medical units and humanitarian or relief bodies providing essentials such as food, clothing and medical supplies. The warring parties are required to allow access to such organizations. The Fourth Geneva Convention and Additional Protocol I specifically require belligerents to facilitate the work of the ICRC.

While IHL protects all civilians without discrimination, certain groups are singled out for special mention. Women and children, the aged and sick are highly vulnerable during armed conflict. So too are those who flee their homes and become internally displaced or refugees. IHL prohibits forced displacements by intimidation, violence or starvation.

Families are often separated in armed conflict. States must take all appropriate steps to prevent this and take action to re-establish family contact by providing information and facilitating tracing activities.

Limits to the Fourth Geneva Convention

The coverage of the Geneva Convention and the two Additional Protocols of 1977 is extensive. However, there are limits to the extent to which they enable the protection of civilians in conflict. Some of these limits are by design, in that the Convention is written to be pragmatic – and as such recognises that at a time of war, civilians are likely to be harmed. As Jamie A Williamson, the Head of Unit of the International Committee of the Red Cross Unit on Relations with Arms Carriers and Security Forces, explains:

… under the Convention, a certain level of harm to civilians can be deemed acceptable as long as the belligerents have fully complied with the three key principles regulating the conduct of hostilities, namely ‘distinction’, ‘proportionality’, and ‘precaution’, before and during an attack.

While a civilian is not to be directly targeted, as long as an attack is not deemed indiscriminate, incidental harm to civilians (‘collateral damage’) is acceptable if it is not excessive in relation to the anticipated concrete and direct military advantage. Similarly, a building which appears to the general observer to be a civilian object may be a legitimate military target if it, by its ‘nature, location, purpose or use makes 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’.

As such, even if commanders cause civilian casualties during an attack, they will not necessarily be liable for any wrongdoing under IHL if they can show that they took all feasible precautions in the planning and launching of the attack, and exercised constant care to spare the civilian population throughout the hostilities.

Williamson concludes that ‘while IHL provides a solid and extensive legal framework for protecting civilians in conflict, the protection it affords is inherently qualified’.

However, the primary shortcoming of the Fourth Geneva Convention in providing protection for civilians in conflicts are not its provisions: if these obligations were correctly applied, harm to civilians during conflicts would be minimised. This unfortunately has not happened consistently: as the International Committee for the Red Cross notes, ‘the problem of the past 50 years has been application. Neither States nor non-State armed groups have respected their obligations adequately. Civilians have continued to suffer excessively in almost every armed conflict.’ This is echoed Eva Svoboda and Emanuela-Chiara Gillard:

It is not the absence of law requiring state and non-state parties to armed conflict to respect and protect civilians that is causing protection problems, but rather a persistent failure to comply with these obligations.

Williamson shares the concerns about non-compliance but suggests that they reflect the lack of enforceability of the Fourth Geneva Convention, and that this lack of enforceability is itself the primary shortcoming of the Convention. All the same, as we near the 70th anniversary of the Convention, she concludes that:

International humanitarian law has proven to be a practical, durable, and adaptable framework to provide passive protection to civilians in the midst of conflict...

Trend towards the “civilianization of armed conflict”

There has been growing concern since World War II about what Andreas Wenger and Simon Mason called in a 2008 article the “civilianization of armed conflict”. This ‘civilianization’ has been primarily due to rising number of intra-state armed conflicts – or, as these are also often known, ‘civil wars’. Wenger and Mason say:

In the Democratic Republic of Congo, for example, there were 2.5 million war deaths between 1998 and 2001, yet only 350,000 of those people were killed in actual battle.

While there was a dip in the trend towards the ‘civilianization of armed conflict’ during the 2000s, this has been reversed since the ‘Arab Spring’ in 2011 and the outbreak of civil wars in Libya, Syria and Yemen, where the civilian death tolls have been very heavy indeed.

Wenger and Mason caution that civilians should not be viewed solely as passive victims in such civil wars and note that telling the difference between them and combatants can often be hard:

Much of the recent academic literature depicts the relationship in civil wars between civilians and combatants (be they government or rebel troops) as highly complex and dynamic. Civilians are victims, but they are also perpetrators. Armed elites (government or rebel) manipulate civilians to further their respective interests, but the population’s response also influences the patterns of violence. Given the ambiguity of the relationship, it will remain difficult to distinguish ordinary crime from direct participation in hostilities and to draw a line between civilians and combatants in most of these conflicts.