The Law of Occupation and the Protection of Civilians

Abstract

1. Introduction The law of armed conflict contains many measures that are designed to protect the civilian population – found in the general provisions on distinction, proportionality and discrimination, but also in more specific rules on targeting, such as the prohibitions on targeting civilian objects or objects indispensable to the survival of the civilian population. These rules can be categorised as “rules providing protection of the civilian population against the direct effects of military operations and other acts of hostility”. However, there is an additional body of rules in the Conventions that aim to protect civilians from other effects of the armed conflict, and specifically those who find themselves in the hands of an adverse party to the conflict. This is most commonly seen in situations of belligerent occupation, where the rules are designed to protect civilians from arbitrary treatment or any acts of violence perpetrated against them by the Occupying Power (OP). This chapter will examine the rules on belligerent occupation in international armed conflicts, as well as some of the general rules that exist to protect civilians from arbitrary treatment when they find themselves in the hands of an adverse party. 2. General protections for civilians Geneva Convention IV and Additional Protocol I contain general rules for the protection of all civilian inhabitants of any territory. The ICTY in Tadic described GC IV as intending to protect “civilians (in enemy territory, occupied territory or the combat zone) who do not have the nationality of the belligerent in whose hands they find themselves, or who are stateless persons”. As outlined in Article 51(2) of Protocol I, the fundamental rule relating to civilians is that they are immune from attack. No definition of the term “civilian” exists in either the Hague Regulations or Geneva Conventions, but is contained in Article 50 of Protocol I which defines civilians thus: 1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.