The loss of immunity of civilians in international humanitarian law
- Introduction
The primary aim of international humanitarian law (IHL) is to protect the victims of armed conflict and to regulate the conduct of hostilities based on the balance between military necessity and humanity.[1] Therefore, one of the main goals of IHL is the protection of the civilians in the situation of combat. IHL lays the principle of distinction between the armed forces, who conduct the hostilities on behalf of the parties to an armed conflict, and civilians, who are presumed not to directly participate in hostilities and must be protected against the dangers arising from military operations. As a result, the parties to an armed conflict have the duty to distinguish; the basis of the 1907 Hague Regulations, all the times, between the civilian population and combatants and the direct operation only against military targets, which expressly stipulates in Article 48 of Additional Protocol I to the Geneva Conventions of 1977 (AP I). In addition, the ICJ in Nuclear Weapons Case recognized this fundamental rule as customary international law,[2] then non-State Parties to the Geneva Conventions of 1949 and Additional Protocols of 1977 also be bound by this principle.
According the basic rule of IHL, combatants and military objects may be the objects of the attack; civilians and civilian object may not be attacked. The civilian population and individual civilian benefit from general protection against the effects of hostilities They enjoy the protective immunity from the attack pursuant to Article 51(3) AP I and Article 13(3) of Additional Protocol II to the Geneva Conventions of 1977 (AP II), which provide that civilians are protected from attack “unless and for such time as they take a direct part in hostilities”. Hence, civilians lose their protective immunity from attack if and for such time as they take a direct part in hostilities.
The reality of armed conflicts in 21st Century, civilians have come to play roles of increased military significance in armed conflict, either international or non-international armed conflict. Furthermore, developments in weapons technology, the asymmetric nature of many conflicts and increased outsourcing of war-related work to private (civilian) contractors have seen growing classes of civilians become potentially harmful to enemy forces. While military necessity may mean that such people are viewed as valuable targets, military necessity is subject to the laws of war, including the general prohibition on attacking civilians.[3] Therefore to determine the circumstances in which civilians lose immunity from attack for participating directly in hostilities becomes essential.
This essay will focus on the extent of the concept of protective immunity from attack of civilians and the notion of direct participation in hostilities. Considering the 1949 Geneva Conventions and Additional Protocols of 1977, the key question is what circumstances would a civilian lose immunity from attack?
2. Source of norms relating to civilian immunity
The most important instruments of international humanitarian law relating to civilian immunity are Geneva Convention IV Relative to the Protection of Civilian in Times of War of 1949 (GC IV) and Additional Protocols to the Geneva Conventions of 1977 (AP I and AP II). GC IV was the first attempt to draw up a treaty for the purpose for protecting civilians during armed conflict. AP I was amended fulfilled some gaps of GC IV by containing detailed provisions relating to protection of civilian in the situation of war.
The Geneva Conventions is universal application then all states in international community have the obligation to be bound by their provisions both as treaty law and/or customary law. While most states have ratified or acceded to the Additional Protocols, a significantly number of non-parties to the Protocols is not bound by their provisions. Nevertheless, regarding the ICRC Study on Customary International Humanitarian Law, it is generally considered that most provision in these Protocols relating to conduct of hostilities reflect customary international humanitarian law that binds all states.[4]
3. Civilians in armed conflicts
In IHL regarding persons taking part or affected by an international armed conflict makes a fundamental distinction between combatants and civilians and an individual can hold only one international legal status of those two categories. According to this, each party to the conflict has a duty to distinguish between combatants (Article 48 of AP I).
3.1 The principle of distinction
The principle of distinction is a basic rule of IHL for separating combatants from civilians and legitimate military targets and civilian objects (Article 48 of AP I). The distinction is required because only member of the armed forced (combatants) have the right to take direct part in hostilities (Article 43(2) of AP I), civilians have not and as long as they refrain from doing do, are protected form attack.
The duty to distinguish not only expressly stipulates in IHL treaty law but it also has been recognized as customary international law by the Advisory Opinion of the ICJ in Nuclear Weapon Case. In this case, the ICJ stated that this principle as a fundamental and ‘intransgressible’ principle of customary international law.[5] Then, every state in international community has the obligation either by treaty or custom, all the time, to distinguish between combatants and civilians (noncombatants) and shall direct the operation only against military objectives.
3.2 The status of civilians
Civilians is one of two statuses under IHL, refers to noncombatants. In IHL treaty law, the Four Geneva Conventions of 1949 and the Two Additional Protocols of 1977 use the term civilian in their provisions, but does not provide any precise definition of ‘civilian’ in those provisions. In the laws regarding international armed conflict, the term ‘civilian’ is defined negatively that a civilian is any person who is not a combatant. Generally speaking that a civilian is any person who does not belong to one of the categories of persons referred to in Article 4(A)(1), (2), (3) and (6) of GC III or Article 43 of AP I.
In addition, the laws regarding non-international armed conflict, Common Article 3 to the Geneva Conventions of 1947, does not provide any definitional clarification for the term ‘civilian’.[6] However, in the ICRC Study on Customary IHL shows that in customary international law, a combatant is anyone who is a member of the armed forces and a civilian is therefore anyone who is not a member of the armed forces.[7] Furthermore, the ICTY in Blaškić Case states that “Civilians within the meaning of Article 3 are persons who are not, or no longer, members of the armed forces”[8]
Even through there is no clearly definition of civilians in those Convention, however, recently, the ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law defines the definition of civilian for the purpose of the principle of distinction in both international and non-international armed conflicts that “in international armed conflict, all person who are neither members of the armed forces of a party to the conflict nor participants in a levée en masse are civilians and in non-international armed conflict, all person who are not members of State armed forces or organized armed groups of a party to the conflict are civilian.”[9]
3.3 Immunity from attack of civilians
According to this fundamental rule of IHL, only combatants can take direct part in hostility and they may be attacked. IHL is built upon the assumption that civilians do not take a direct part in hostilities. It therefore provides for protection of civilians against the effect of hostilities, but only for such time as they do not take direct part in hostilities themselves according to Article 51(1) and (3) of AP I and Article 13(3) of AP II.[10] Stated easier, civilians are protected against the danger arising from military operations; in particular they may not be the object of an attack, they have no right to participate directly in hostilities and as long as they doing so, they are protected from attack.[11] Then, the immunity of civilian from attack is removed only for such time as the civilians are taking part in the hostilities.
4. Loss of immunity
As abovementioned, IHL assumes the civilians do not take direct part in hostilities, and then they benefit protective immunity from attack under IHL until and for such time as they do not take part in hostilities. But such participation is not prohibited by IHL nor is it international crimes.[12] Moreover, the practices show that under certain circumstances civilians do take up arms. There are two types of civilian involvement in military activities; individual civilian take active part in hostilities and civilians or companies may be hired by the armed forces to carry out task which normally are carried out by the armed forces themselves.[13]
Before coming to the question of what is the loss of immunity from attack? It is important to classify the term of ‘direct participation in hostilities’ in IHL, at the first place.
4.1 Direct participation in hostilities
In IHL; Geneva Conventions and Protocols do not define or give much guidance for the interpretation of the notion of direct participation in hostilities. In addition, there is no a clear interpretation of the concept emerges from State practice or international jurisprudence. Under Article 31(1) of Vienna Convention on the Law of Treaties of 1969, the notion of direct participation in hostilities must therefore be interpreted in good faith accordance with the ordinary meaning to be given to its constituent terms in their context and in light of the object and purpose of IHL.[14] Hence, the notion of direct participation in hostilities in situation on international and non-international armed conflict can be interpreted synonymously that refers to specific hostile acts carried out by individuals as a part of the conduct of hostilities between parties to an armed conflict.[15]
However, there are two main issues regarding this, that is, it is unclear what activities amount to direct participation in hostilities and the lack of temporal boundary of direct participation in hostilities.[16]
4.1.1 Acts amount to direct participation in hostilities
Not every activity carried out in the course of armed conflict is taking a direct part in hostilities. Commentary to AP I support the assertion that “[d]irect participation in hostilities implies a direct casual relationship between the activity engaged in and the harm done to the enemy at the time and place where the activity occurs”[17] and describes direct participation as “acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces.”[18]Moreover, commentary to AP II provides that “[t]he notion of direct participation in hostilities implies that there is a sufficient casual relationship between the act of participation and its immediate consequences.”[19]
In addition, according to the ICRC Guidance on Direct Participation in Hostilities, the acts amounting to direct participation in hostilities must meet three cumulative requirements namely: threshold of harm, direct causation and belligerent nexus.[20]
Threshold of harm, at the first place, refers a threshold regarding the harm likely to result from the act. To reach this requirement, a specific must be likely to adversely affect the military operation or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against attack.
Direct causation, secondly, means a relationship of direct causation between the act and the expected harm. To meet the requirement of direct, there must be causation likely to result either form that act, or from a coordinated military operation of which that act constitutes an integral part. And finally, a belligerent nexus between the act and the hostilities conducted between the parties to an armed conflict. In order to this requirement, the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another[21]
4.1.2 Temporal boundary of direct participation in hostilities
The issue of lacking of temporal boundary of direct participation in hostilities is about when does direct participation cease? Regarding the term ‘unless and for such time as’ in Article 51(3) of AP I, the Commentary on AP I states that direct participation includes “preparations for combat and return from combat”[22] The Commentary on Article 13(3) of AP II states that protection is denied “for as long as his participation lasts. Therefore, as he no longer presents any danger for the adversary, he may not be attacked.”[23] Regarding this, it means that the duration boundary of direct participation in hostilities by civilians is during the time that such civilians are actually engaged in carrying out their hostile acts.
However, it is generally agreed by the commentators that instead of definition, the determinations of direct participation in hostilities must be judged on a case by case basis.[24] In Tadić Case, the ICTY adopted the similar view that “It is unnecessary to define exactly the line dividing those taking an active part in hostilities and those who are not so involved. It is sufficient to examine the relevant fact of each victim and to ascertain whether, in each individual’s circumstances, that person was actively involved in hostilities at the relevant time.”[25]
4.2 Legal consequences of taking direct part in hostilities
There are main two consequences if civilian take direct part in hostilities. They will lose immunity from attacks and immunity form prosecution which they may be prosecuted for the hostile acts.
4.2.1 Civilians lose immunity from attack
As aforementioned, the main consequence of civilian taking direct part in hostilities is loss of immunity from attacks and they enjoy as peaceful civilians. Pursuant to Article 51(3) of AP I and Article 13(3) of AP II civilians enjoy immunity for attack during the armed conflict ‘unless and for such time as they take a direct part in hostilities.’ The loss of immunity is not only expressly states in those provisions but it also be recognized as a part of customary international law according to the Decision of the Appeals Chamber of the ICTY in Strugar and others Case.[26] Hence, as result of direct participation in hostilities, such civilians would become a legitimate target meaning that the adversary party can attack them, without being in violation of IHL. They are subject to direct individualized attack to the same extent as combatant.[27]
The loss of immunity is uncontested but there are two points which must be emphasized. First, the loss of immunity does not mean that the adversary forces will have unlimited discretion in their choice of means and methods of attacking them. The military operations against such civilians taking direct part in hostilities must also accordance with fundamental principles of proportionality, military necessity and distinction.[28] Targeting such civilians would be regarded as an indiscriminate attack if it ‘may be expected to cause incidental loss of civilian life, injury to civilians, and damage to civilian objects, or a combination therefore, which would be excessive in relation to the concrete and direct military advantage anticipated’ according to Article 51(5)(b) of AP I.
Secondly, the duration of loss of immunity by such civilians, what is the scope of the term ‘for such time’ in the provision? According to textual analysis of Article 51(3) of AP I, the Commentary on AP I states ‘It is only during such participation that a civilian loses his immunity and becomes a legitimate target. Once he ceases to participate, the civilian regain his right to the protection under this Section, i.e., against the effect of hostilities, and he may no longer be attacked’.[29] Regarding this, it means that direct participation in hostilities by civilians only leads to contemporary loss of immunity from attack during the time that such civilians are actually engaged in carrying out their hostile acts.[30] Furthermore, the ICRC Study on Customary IHL also includes the time frame of such provisions as part of customary international humanitarian law.[31]
In addition, the loss of immunity form attack not only do civilians who participate directly in hostilities become legitimate targets according to Article 48 and 51(1) of AP I, they may also be prosecuted under national laws on the basis that they are not combatants who are entitled to so participate set forth in Articles 43–45 of AP I.
4.2.2 Civilians may be prosecuted for hostile acts
Not only lose immunity from attack but civilians who take direct part in hostilities also lose their immunity from prosecution.
Generally, combatants enjoy immunity from prosecution from legitimate acts of hostilities. Civilians, on the other hand, do not get this immunity when they take direct part in hostilities. If they fall into the hand of enemy, they will be liable for domestic criminal prosecution of their hostile acts under domestic law of such state.
IHL does not criminalized civilians’ direct participation in hostilities. Hence, the civilian who take direct part in hostilities could be prosecuted, if those hostile acts violate the laws of the war.
5. Conclusion
The above analysis indicates that normally the civilians are not legitimate targets of military operation. According to IHL, combatants must direct their operations only against military objective. As long as civilians do not take direct part in hostilities, they benefit protective immunity form attack. However, if civilians take direct part in hostilities, they will not only lose their protective immunity against the effects of hostilities according to Article 51(3) of AP I and Article 13(3) of AP II but also lose immunity from be prosecuted for their hostile acts.
[1] N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, p.11, < www.icrc.org/Web/Eng/siteeng0.nsf/html/review-872-p991>, accessed 26 September 2009.
[2] Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, ICJ, Advisory Opinion, para. 79, <www.icj-cij.org/docket/index.php?p1=3&p2=4&k=e1&case=95&code=unan&p3=4>, accessed on 28 September 2009.
[3] E. Camins, ‘The Past as Prologue: the Development of the ‘Direct Participation’ Exception to Civilian Immunity’, 90 International Review of the Red Cross (2008) p. 854.
[4] I. Primoratz (ed.), Civilian Immunity in War (Oxford University Press, New York, 2007) p.90.
[5] Legality of the Threat or Use of Nuclear Weapon Case, supra note 2, para. 78.
[6] A. Cassese (ed.), The Oxford companion to International Criminal Justice (Oxford University Press, New York, 2009) p. 263.
[7] J. Henckaerts and L. Daswald-Beck, Customary International Humanitarian Law (Cambridge University Press, Cambridge, 2005) rule 3.
[8] Prosecutor v. Tihomir Blaškić, 3 March 2000, ICTY, Trial Chamber Judgment, Case No. IT-95-14-T, para. 180.
[9] Melzer, supra note 1, pp. 26, 30.
[10] D. Fleck (ed.), The Handbook of International Humanitarian Law (Oxford University Press, New York, 2009) p.261.
[11] A. Alam, ‘The Rights and Status of Fighting Civilians in International Armed Conflicts’,5 ISIL Yearbook of International Humanitarian and Refugee Law (2005) p. 64.
[12] Fleck, supra note 10.
[13] Ibid.
[14] The ICRC Interpretive Guidance on Direct Participation in Hostilities, supra note 1, p. 41.
[15] Ibid., p. 45.
[16] M. N. Schmitt, “Direct Participation in Hostilities” and 21st Century Armed Conflict, pp. 508-510, <http://www.michaelschmitt.org/images/Directparticipationpageproofs.pdf> accessed 28 September 2009.
[17] ICRC, Commentary on the Additional Protocols on 8 June 1977 to the Geneva Conventions on 12 August 1949, (Kluwer Academic Publishers, The Hague, 1984) para. 1679, <books.google.se/books?id=NQicL8Eu1MUC&printsec=frontcover#v=onepage&q=&f=false> accessed 27 September 2009
[18] Ibid., para. 1944
[19] Ibid, para. 4787.
[20] ICRC, Summary Report of the Fourth Expert Meeting on the Notion of Direct Participation in Hostilities Geneva, 27 / 28 November 2006, pp. 40-49 <www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participation-report_res/$File/2006-03-report-dph-2006-icrc.pdf>, accessed 26 September 2009.
[21] See The ICRC Interpretive Guidance on Direct Participation in Hostilities, supra note 1, pp. 46-64.
[22] The ICRC Commentary on Additional Protocols, supra note 17, para. 1943.
[23] Ibid., para. 1944
[24] M. N. Schmitt, ‘Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees’, 5 Chicago Journal of International Law (2005) pp. 511-533.
[25] Prosecutor v. Dusko Tadić, 7 May 1997, ICTY, Case No. IT-94-1, para. 616.
[26] Prosecutor v. Pavel Strugar and others, 22 November 2002, ICTY, Appeals Chamber Decision on Jurisdiction, Case No. IT-01-42-AR72, para. 9.
[27] Alam, supra note 11, p.81
[28] Ibid.
[29] The ICRC Commentary on Additional Protocols, supra note 17.
[30] Alam, supra note 11, p.83.
[31] The ICRC Study on Customary International Humanitarian Law, supra note 7, rule 6.
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