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The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

Categories

  1. Children (12)
  2. Collective security (19)
  3. Detention (14)
  4. Family (10)
  5. Food (9)
  6. Health (14)
  7. Human Rights (36)
  8. Humanitarian and relief personnel (13)
  9. Humanitarian law (46)
  10. International law (31)
  11. Missing persons and the dead (6)
  12. Nongovernmental Organizations (13)
  13. Occupation (17)
  14. Peacekeeping (17)
  15. Population displacement (14)
  16. Protection (33)
  17. Recourse (24)
  18. Refugees (12)
  19. Relief (26)
  20. Responsibility (11)
  21. Sanctions (25)
  22. United Nations (UN) (27)
  23. Violations of law (22)
  24. War (42)
  25. Weapons (6)
  26. Women (11)

Index

  1. Alias
  2. Alphabetical index
  3. International conventions
  4. Ratified conventions by countries
  5. Advanced search

Others

  1. Authors and participants

Protected Persons

Each of the four 1949 Geneva Conventions and their 1977 Additional Protocols applies to a specific category of person (with the Protocols applying more generally to “victims”). They define the rights and protections that must be respected and which each category is entitled to receive. The provisions vary slightly from one category to the next.

In theory, humanitarian law uses the term protected persons only in the context of international armed conflicts, since the exact term is not used in reference to internal armed conflicts. Nonetheless—for the sake of linguistic simplicity—we will use it in this entry to qualify the notion of protection to which individuals are entitled, including in non-international conflicts. International humanitarian law identifies a total of fifteen categories of protected persons in the case of international armed conflicts and five in internal conflicts.

Unlike human rights law, humanitarian law does not establish universal rights applicable to all individuals. Instead, it defines categories of individuals to whom it grants specific rights and protection, either because these people are more exposed to the risks engendered by conflict or because they are naturally more vulnerable. The risk of this categorization is that certain individuals may not receive adequate protection if the actors in a conflict do not recognize them as belonging to one of the categories of protected persons. To counter this risk, humanitarian law also establishes certain fundamental guarantees that are applicable in time of conflict to everyone who does not or no longer participates in the hostilities.

Certain categories of protected persons have the right to additional protection, derived from their use of a distinctive emblem in a manner foreseen by the Conventions and Additional Protocol I.

▸ Distinctive (or protective) emblems, signs, and signals

An individual who has the status of a protected person under international humanitarian law has the right to special protection and reinforced relief.

  • Individuals who cannot benefit from this status are nonetheless protected by the minimum rights and fundamental guarantees to which all individuals are entitled under the 1949 Geneva Conventions.
  • Additional Protocols I and II of 1977 provide a more flexible definition of the different categories of protected persons and consolidate the provisions that are meant to ensure a basic level of protection. The Additional Protocols also list the fundamental guarantees that must be secured for all victims in a national or international situation of conflict who do not benefit from a specific preferential regime or categorization (API Arts. 75, 1.2; APII Art. 4).
  • Common Article 3 to the four Geneva Conventions establishes a less comprehensive set of minimum guarantees applicable at all times to all persons.

▸ Fundamental guarantees; ▸ Situations and persons not expressly covered by humanitarian law

International Armed Conflict

In times of international armed conflict, humanitarian law provides for fifteen categories of protected persons—four related to combatants and eleven concerning civilians:

  1. The wounded and sick in armed forces in the field. Such persons are protected by the entire First Geneva Convention (in particular, Arts. 12–18) and by Additional Protocol I (in particular, Arts. 8–20).
  2. The wounded, sick, and shipwrecked members of armed forces at sea. Such persons are protected by the entire Second Geneva Convention (in particular, Arts. 12–21) and by Additional Protocol I (in particular, Arts. 8–20).
  3. Medical and religious personnel attached to armed forces. Such persons are protected by the First and Second Geneva Conventions (GCI Arts. 24, 25; GCII Arts. 36, 37).
  4. Prisoners of war. Such persons are protected by the entire Third Geneva Convention (in particular, Arts. 4, 12–16) and by Additional Protocol I (Arts. 43–47). ▸ Prisoners of war
  5. Wounded and sick civilians. Such persons are protected by the Fourth Geneva Convention (in particular, Arts. 3, 16–23) and by Additional Protocol I (Arts. 10–16). Pregnant women, ˜maternity cases, newborn infants, and infirm persons are included in the humanitarian law definition of “wounded and sick” (API Art. 8). ▸ Wounded and sick persons
  6. Medical and religious civilian personnel. This category is defined, and such persons are protected, by the Fourth Geneva Convention (Art. 20) and by Additional Protocol I (Art. 15). ▸ Medical personnel
  7. Parliamentarians. Such persons are protected by the Fourth 1907 Hague Convention on the laws and customs of war.
  8. Personnel of civil defense organizations. Such persons are protected by Additional Protocol I (Arts. 61–68).
  9. Relief personnel. Such persons are protected by Additional Protocol I (Art. 71). ▸ Humanitarian and relief personnel
  10. The civilian population and civilian persons. Such persons are mainly protected by the Fourth Geneva Convention and by Additional Protocol I (Arts. 48–67). This category includes:

—the entire civilian population: all civilians must be protected against the effects of hostilities—in other words, they may not be the object of attack (Arts. 48–51). They must also be able to receive all necessary relief (GCIV Art. 23, API Arts. 68–71). They also benefit from the fundamental guarantees protected by the conventions (GCI–IV Common Art. 3, API Art. 75);

—civilians who find themselves in the hands of a party to a conflict or an occupying power of which they are not nationals benefit from the status of protected persons (GCIV Art. 4). Civilian status in occupied territories is defined and protected by the Fourth Geneva Convention (Arts. 27–141, which include the regulations applicable to internees).

Nationals of a State not party to the 1949 Geneva Conventions are not protected by the Conventions’ provisions.

Nationals of a neutral State who find themselves in the territory of a belligerent State, as well as nationals of an ally of the belligerent State (“cobelligerent State”), shall not be regarded as protected persons as long as their State of nationality maintains normal diplomatic representation with the State in which they find themselves (GCIV Art. 4).

Additional Protocol I has relaxed the strict definition of the categories of protected persons and consolidated the provisions ensuring a minimal level of protection. It also establishes the fundamental guarantees that remain applicable to all victims of a situation of conflict who do not benefit from a specific, preferential regime or categorization (API Art. 75). ▸ Civilians ▸ Fundamental guarantees

  1. Persons detained, interned, or otherwise deprived of liberty (GCIV Arts. 41, 42, and 79–135; API Art. 75). ▸ Detention ▸ Internment
  2. The population of an occupied territory (GCIV Arts. 47–78; API Arts. 63, 69). ▸ Occupied territory
  3. Women. Women are protected by Additional Protocol I (in particular, Art. 76, GCIV Art. 14). Women prisoners of war, internees, and detainees also benefit from specific protection under the Third and Fourth Geneva Conventions. ▸ Women
  4. Children. Children are protected by Additional Protocol I (in particular, Arts. 77, 78). Children prisoners of war, internees, and detainees also benefit from specific protection under the Third and Fourth Geneva Conventions. ▸ Children
  5. Foreigners, refugees, and stateless persons (GCIV Arts. 35–46; API Art. 73). ▸ Refugees ▸ Stateless persons

NonInternational Armed Conflict

In times of non-international armed conflict, humanitarian law defines five categories of protected persons and specific guarantees:

  1. Everyone who does not or no longer participates in the hostilities must benefit from the minimum guarantees (GCI–IV Common Art. 3, APII Art. 4). ▸ Fundamental guarantees
  2. The civilian population and objects indispensable to their survival (APII Arts. 13, 14). ▸ Civilians ▸ Protected objects and property
  3. Persons deprived of their liberty for reasons related to the armed conflict (APII Art. 5). ▸ Detention
  4. Wounded and sick (GCIV Art. 3; APII Arts. 7, 8). ▸ Wounded and sick persons
  5. Medical and religious personnel (APII Art. 9). ▸ Medical personnel

The Rights of Protected Persons

In International Humanitarian Law

The Geneva Conventions establish specific rights for protected persons in terms of protection and assistance in times of international or internal armed conflict. Withholding the status of protected persons constitutes a grave violation of humanitarian law (GCIV Art. 29).

The authorities who have power over the protected persons must treat them according to the rules and norms to which they committed under the Conventions and their Additional Protocols. The party to the conflict in whose hands protected persons find themselves is responsible for the treatment of such persons by its agents, irrespective of any individual responsibility that may be incurred.

▸ Family reunification ▸ War crimes/Crimes against humanity

Representatives of protecting powers and of the ICRC are authorized to visit any place where protected persons are located (GCIV Art. 130). This possibility is extended to other relief organizations.

Protected persons have the right to appeal decisions that affect them and address the protecting powers, the International Committee of the Red Cross, the National Red Cross, or the Red Crescent Society of the country where they find themselves, as well as to any organization that might assist them (GCIV Art. 30). The local authorities may not refuse access to protected persons, except within the limits established by military necessity and security.

▸ Protecting powers

UN personnel can also benefit from specific provisions of humanitarian law. In situations in which UN personnel are involved, it is important to make a distinction between the humanitarian personnel—carrying out relief operations and protected under their status as civilians—and the military personnel—who, for instance, may be participating in peacekeeping operations.

▸ Humanitarian and relief personnel

The Statute of a permanent International Criminal Court (ICC) was adopted on 17 July 1998 and entered into force on 1 July 2002. It has jurisdiction over individuals accused of war crimes, crimes against humanity, and genocide. Its definition of war crimes includes intentionally directing attacks against medical personnel and units, personnel using the distinctive emblems protected by the Geneva Conventions, and personnel involved in humanitarian assistance or peacekeeping missions (as long as these persons are entitled to the protection granted to civilians under the law of armed conflict). The ICC is competent to prosecute the perpetrators of such attacks, whether committed in international or internal armed conflict (Arts. 8.2.b.iii, 8.2.e.ii, and 8.2.e.iii of ICC Statute).

In Customary International Humanitarian Law

The study on the rules of customary international humanitarian law published by the ICRC in 2005 (customary IHL study), spells out the rights of specific categories of protected persons, applicable in situation of international and non-international armed conflicts.

  1. Medical personnel: Rule 25 of the customary IHL study provides that “medical personnel exclusively assigned to medical duties must be respected and protected in all circumstances. They lose their protection if they commit, outside their humanitarian function, acts harmful to the enemy.” Rule 26 says that it is forbidden to punish a person for performing medical duties compatible with medical ethics or compelling a person engaged in medical activities to perform acts contrary to medical ethics.
  2. Religious personnel: Rule 27 recalls that “religious personnel exclusively assigned to religious duties must be respected and protected in all circumstances. They lose their protection if they commit, outside their humanitarian function, acts harmful to the enemy.”
  3. Journalists: Rule 34 imposes that “civilian journalists engaged in professional missions in areas of armed conflict must be respected and protected as long as they are not taking a direct part in hostilities.”
  4. Persons hors de combat : Rule 47 states that “attacking persons who are recognized as hors de combat is prohibited, (provided that) a person hors de combat is (a) anyone who is in the power of an adverse party; (b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; or (c) anyone who clearly expresses an intention to surrender; provided he or she abstains from any hostile act and does not attempt to escape.”
  5. Women: Rule 134 imposes that “the specific protection, health and assistance needs of women affected by armed conflict must be respected.”
  6. Children: Rule 135 provides that “children affected by armed conflict are entitled to special respect and protection.”
  7. The elderly, disabled, and infirm: Rule 138 states that “the elderly, disabled and infirm affected by armed conflict are entitled to special respect and protection.”

▸ Children ▸ Civilians ▸ Detention ▸ Fundamental guarantees ▸ Humanitarian and relief personnel ▸ International humanitarian law ▸ Internment ▸ Journalists ▸ Medical duties ▸ Military objectives ▸ Occupied territory ▸ Prisoners of war ▸ Protection ▸ Relief ▸ Security ▸ Situations and persons not expressly covered by humanitarian law ▸ Women ▸ Wounded and sick persons

Jurisprudence

The International Criminal Tribunals considered the definitions of the categories of people protected by the four Geneva Conventions and their Additional Protocols. The purpose was to make sure these categories fit with the development and variety of the situations at stake and the modern forms of conflicts—in particular regarding ethnic types of conflicts. In the Celebici Case (16 November 1998), the Trial Chamber of the ICTY considered that Geneva Convention IV seems to limit the notion of persons protected to those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals (para. 236). However, the judges considered that in order to retain the relevance and effectiveness of the norms of the Geneva Conventions, it was necessary to interpret the law in a way that enables humanitarian conventions to serve their protective goals (para. 266).

In the same case, the Appeals Chamber (20 February 2001, para. 73) held that already in 1949 the legal bond of nationality was not regarded as crucial, and allowance was made for special cases. The nationality requirement in Article 4 of Geneva Convention IV should therefore be ascertained within the context of the object and purpose of humanitarian law, which “is directed to the protection of civilians to the maximum extent possible” (para. 73). Accordingly, the application of the nationality requirement should not solely be based on the legal and formal criteria set up by domestic law. The ICTY jurisprudence has held that “protected persons” may encompass victims possessing the same nationality as the perpetrators of crimes, if, for example, these perpetrators are acting on behalf of a State that does not extend these victims diplomatic protection or to which the victims do not owe allegiance (para. 418).

This judgment confirms and develops other decisions previously taken by the ICTY in the Tadic and Alekovski cases. In the latter, the Appeals Chamber held that “Article 4 may be given a wider construction so that a person may be accorded protected status, notwithstanding the fact that he is of the same nationality as his captors” ( Celebici Case , 20 February 2001, para. 58).

For Additional Information: Blondel, Jean-Luc. “Assistance to Protected Persons.” International Review of the Red Cross 260 (September–October 1987): 451–68.

Dinstein, Yoram. The Conduct of Hostilities under the Law of International Armed Conflict . Cambridge: Cambridge University Press, 2004.

Fleck, Dieter, ed. The Handbook of Humanitarian Law in Armed Conflicts . Oxford: Oxford University Press, 1995, 209–376.

Henckaerts, Jean-Marie, and Louise Doswald-Beck, eds. Customary International Law . Vol. 1, The Rules . Cambridge: Cambridge University Press, 2005, part 2.

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