IHL protects all victims of armed conflicts, including both civilians and combatants who have laid down their arms. The nature of the protection it provides varies and is determined by whether the person in question is a combatant or a civilian.
International armed conflicts
Civilians
Civilians are entitled to protection in two different situations. First, they enjoy general protection against dangers arising from hostilities. Civilians, defined as all persons who are not combatants (see definition of ‘combatants’ below), must not be the object of attacks. The only exceptions to this rule are civilians who directly participate in hostilities, for example, by taking up arms against the enemy. In such instances, they may be targeted for attack, but only so long as they directly participate in hostilities.
Whom does IHL protect? IHL protects all victims of armed conflicts, including both civilians and combatants who have laid down their arms. The nature of the protection it provides varies and is determined by whether the person in question is a combatant or a civilian. International armed conflicts Civilians Civilians are entitled to protection in two different situations. First, they enjoy general protection against dangers arising from hostilities. Civilians, defined as all persons who are not combatants (see definition of ‘combatants’ below), must not be the object of attacks. The only exceptions to this rule are civilians who directly participate in hostilities, for example, by taking up arms against the enemy. In such instances, they may be targeted for attack, but only so long as they directly participate in hostilities.
The rationale is that these civilians must be protected by IHL because they no longer enjoy the protection of their own State – either because it is at war with the State in whose power they are or because it has no diplomatic relations with that State. The aim is also to protect civilians from arbitrary acts of an adverse party because of their allegiance to its enemy.
Protected civilians are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must not be subjected to torture, cruel or degrading treatment or corporal punishment and must be protected against all acts of violence or reprisal.
Civilians are particularly at risk when they are in a territory occupied by the army of a belligerent power or when they are detained for reasons related to an armed conflict. In occupied territory, the occupying power has a particular obligation to provide food and medical supplies for protected civilians. Deportation and forced transfers are prohibited. There are also rules on confiscating or seizing property. IHL provides detailed rules protecting civilians deprived of their liberty, particularly on the conditions of their detention, the judicial and procedural guarantees to which they are entitled, and their release.
Combatants hors de combat
Although they do enjoy protection from superfluous injury or unnecessary suffering, combatants are not protected against the effects of hostilities. Thus, they can be attacked unless they are hors de combat.
All members of the armed forces of a party to the conflict (except medical and religious personnel) are defined as ‘combatants’. The armed forces of a party to a conflict consist of all organized armed forces, groups and units that are under a command responsible to that party for the conduct of its subordinates. (See Article 43, paragraphs 1 and 2, of Additional Protocol I. See also Rules 3 and 4 of the ICRC’s study on customary IHL.) Typically, this includes members of the regular armed forces. It also includes members of militia or volunteer corps (so-called ‘irregular’ armed forces), as well as members of organized resistance movements. The Third Geneva Convention is stricter than Additional Protocol I and provides specific additional conditions that members of irregular armed forces and of organized resistance movements must meet to be regarded as prisoners of war.
Combatants are considered to be hors de combat when they are in the power of an adverse party, when they clearly express an intention to surrender, or when they are wounded or sick to such an extent that they are incapable of defending themselves. In each of these cases, these persons are hors de combat if they abstain from any hostile act and if they do not attempt to escape. As soon as a combatant is hors de combat, he must be shown due regard and protected.
Moreover, when combatants fall into the power of the enemy – owing to capture, surrender, mass capitulation or some other reason – they enjoy the status of ‘prisoners of war’. As such, they cannot be prosecuted or punished for having directly participated in hostilities. In fact, combatants have a right to directly participate in hostilities and enjoy immunity from prosecution for their acts of belligerence. If they commit war crimes, however, they must be held responsible.
Prisoners of war are entitled to humane treatment and respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must not be subjected to torture, cruel or degrading treatment or corporal punishment and must be protected against all acts of violence or reprisal. IHL contains detailed rules protecting prisoners of war, particularly on the conditions of their detention, the judicial and procedural guarantees to which they are entitled, and their release and repatriation.
Non-international armed conflicts
IHL does not recognize any specific categories of person in non-international armed conflicts. That is because States do not want to give members of organized non-State armed groups the status of ‘combatants’, which entails the right to take a direct part in hostilities. Therefore, common Article 3 and Additional Protocol II simply provide that everyone not actively involved in hostilities, or no longer taking part in them, is entitled to protection. This enables IHL to protect civilians and those who are no longer taking a direct part in hostilities. Because there is no ‘combatant’ status in non-international armed conflicts, there is no prisoner-of-war status either. This means that members of organized non-State armed groups taking up arms in such a conflict may be prosecuted under domestic law for doing so.
Protection for the wounded, sick and shipwrecked and for medical services
The wounded, sick and shipwrecked, regardless of their status, are entitled to protection. Such persons must be searched for, collected and cared for by the party to the conflict that has them in its power. Medical personnel and medical establishments, transports and equipment must be respected and protected in all circumstances. The red cross, red crescent or red crystal on a white background is the distinctive sign showing that such persons and objects must be protected.
Specific protection: Women and children
Certain categories of person, such as women and children, have specific needs in armed conflicts and must be given particular respect and protection.
Children must receive the care and aid they require. All feasible measures must be taken to prevent children under the age of 15 from taking a direct part in hostilities and, if they have become orphaned or separated from their families as a result of an armed conflict, to ensure that they are not left to their own resources. Their maintenance, the exercise of their religion and their education should be facilitated in all circumstances. Children who are deprived of their liberty must be held in quarters separate from those of adults, except where families are accommodated as family units. The death penalty must not be carried out against persons who were under the age of 18 when they committed the offence in question.
The specific protection, health and assistance needs of women affected by armed conflict must be taken into account. Pregnant women and young mothers must be treated with particular care. The prohibition against sexual violence applies equally to men and women, but it is often the case that women bear the brunt of the sexual violence that occurs during armed conflicts. Women therefore have a specific need to be protected against all forms of sexual violence – for instance, through separation from men while deprived of their liberty, except where families are accommodated as family units. Women must also be under the immediate supervision of women, not men.
Fundamental guarantees regardless of status
In addition to the protection described above, IHL provides for certain fundamental guarantees that apply to all persons hors de combat regardless of their status (Article 75 of Additional Protocol I; Article 4 of Additional Protocol II).
The person, honour, convictions and religious practices of all such persons must be respected. The following acts in particular are prohibited under all circumstances, whether committed by civil or military agents:a) violence to the life, health and physical or mental well-being of persons, particularly:
• murder
• torture, whether physical or mental
• corporal punishment
• mutilationb) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, forced prostitution and any form of indecent assault
c) the taking of hostages
d) collective punishment
e) threats to commit any of the foregoing acts.
Finally, the fundamental guarantees accorded to all persons affected by armed conflict also include certain procedural and judicial safeguards (Article 75 of Additional Protocol I; Article 6 of Additional Protocol II).