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IHL: Protected Persons, INTERNMENT - Coggle Diagram

- - - - "WOUNDED AND SICK" DEFINED
        The terms “wounded” and “sick” mean people who,
        
        CAUSED BY TRAUMA/DISEASE/DISABILITY because of trauma, disease or other physical or mental disorder or disability,
        
        NEED MEDICAL ASSISTANCE/CARE - are in need of medical assistance or care and
        
        REFRAIN FROM ACTS OF HOSTILITY - who refrain from any act of hostility (Article 8 (a) of Protocol I).
        
        "SHIPWRECKED" DEFINED
        With regard to the "shipwrecked", Article 8 (b) of Protocol I specifies that they are
        
        IN PERIL AT SEA OR OTHER WATERS - who are in peril at sea or in other waters
        
        CAUSED BY MISFORTUNE OR VESSEL - as a result of misfortune affecting them or the vessel or aircraft carrying them, AND
        
        REFRAIN FROM ACTS OF HOSTILITY - who refrain from any act of hostility.
        
        HOW "SHIPWRECKED" STATUS IS RELIEVED
        Shipwrecked persons retain this status until they have acquired another status under the Conventions or Protocol I:
        IF CIVILIAN AND LANDED IN PORT OF OPPOSING PARTY, PP
        protected person status within the meaning of Article 4 of the Fourth Convention if the shipwrecked person is a civilian and is landed in a port of the opposite party; or
        IF RECOVERED BY ENEMY ARMED FORCES, THEN POW
        prisoner of war status within the meaning of Article 4 of the Third Convention if recovered by the enemy armed forces, for example.
        MAY BE W&S AND PP/POW AT THE SAME TIME
        In all cases, the shipwrecked person also retains the status of wounded or sick if his/her condition places him/her in this category.
- - - - SCOPE
        OBLIGATIONS REGARDING WSS IN ART. 12 OF GC 1
        The basic principle concerning the obligations of the Parties to the conflict vis -à-vis the wounded, sick and shipwrecked is laid down in Article 12 of the First Geneva Convention of 1949.
        EXTENDED TO ENTIRE CIVILIAN POPULATION IN ART. 10 OF AP 1
        Article 10, paragraph 1, of the First Additional Protocol takes over this obligation but considerably extends its personal scope by indicating that "[A]ll the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected".
        LIST IN ART. 13 OF GC 1 NOT EXHAUSTIVE
        In other words, this protection is no longer limited only to members of the armed forces and other groups listed in Article 13 of the First Convention, but now covers the entire civilian population.
        
        "RESPECTED AND PROTECTED" MEANING
        
        NOT ATTACK, KILL, MISTREAT, OR HARM IN ANY WAY - To say that the wounded, sick and shipwrecked must be respected and protected means that it is prohibited to attack, kill, mistreat or harm them in any way, but also that
        
        HELP - there is an obligation to help them.
        
        CARE - Therefore, the parties to a conflict must take care of the wounded, sick and shipwrecked in their power.
        
        TREAT HUMANELY - They must also treat them humanely and
        
        NOT HARM LIFE or PERSON - not harm their life or their person.
        
        NOT BIOLOGICALLY EXPERIMENT - And they must refrain from carrying out biological experiments on them and
        
        NOT PURPOSELY LEAVE THEM W/O MEDICAL AID OR CARE - purposely leave them without medical aid, or without care, or
        
        EXPOSE TO CONTAGION/INFECTION CREATED FOR SUCH PURPOSE - expose them to the risks of contagion or infection created for this purpose (see articles 15, 16 and 17 of Convention I and Articles 18, 19 and 20 of Convention II).
        
        THESE OBLIGATIONS ALSO APPLY TO NIACs
        These obligations to respect and protect the wounded, sick and shipwrecked also apply in non - international armed conflict (see common Article 3 § 1 of the four Geneva Conventions and Article 8 of Additional Protocol II).
        The implementation of these obligations may be facilitated by the establishment of safety zones and localities which impose a suspension of hostilities in space, and of truce which achieves this suspension over time.
        
        PROTECTING WSS
        INVOLVES
        PROTECTING MEDICAL AND RELIGIOUS PERSONNEL
        The corollaries essential to the protections enjoyed by the wounded, sick or shipwrecked are the protection of medical and religious personnel, as well as units, means of transport and medical equipment, and the protection of emblems and distinctive signs.
        Convention I, Protocol I and Protocol III include a very large number of provisions relating to these subjects. Knowing them is important.
        Likewise, the dead and missing are covered by specific provisions which it is important to have command of.
      - B. PRISONERS OF WAR (GC 3)
        
        COMBATANTS ARE PRIVILEGED TO
        DIRECTLY PARTICIPATE IN HOSTILITIES
        Combatants enjoy a "privilege", namely the right to participate directly in hostilities (art. 43, paragraph 2, of the First Additional Protocol).
        THUS, COMBATANTS ARE LEGITIMATE TARGETS OF ATTACK
        In return, they are legitimate targets of attack during military operations.
        COMBATANTS CANNOT BE PROSECUTED FOR ACTS IN PURSUIT OF MILITARY ACTIVITIES
        From a legal point of view, it follows logically from this right that they cannot be prosecuted at the judicial level for acts performed in the pursuit of their military activities (provided that these acts are not subject to criminal prosecution).
        
        ARMED FORCES MAY BECOME POW
        However, they can be captured by the enemy and interned for the duration of the conflict in order to be prevented from resuming hostilities.
        They then enjoy the status of prisoner of war.
        
        POWS ARE NOT RECOGNIZED IN NIACS
        The notion of prisoner of war has not been extended to non-international armed conflicts.
        Indeed, this status is attached to the combatant's immunity and the latter's right to participate directly in hostilities, yet States have always been, and remain, very reluctant to recognize this right to organized armed groups.
        As a result, none of those who take a direct part in hostilities in the context of a non - international armed conflict can benefit from the status or treatment of prisoners of war.
        
        IN NIACs, THE FF APPLY:
        
        PRINCIPLE OF HUMANITY,
        
        NON-DISCRIMINATION,
        
        PROTECTION AGAINST ATTACKS ON LIFE & PERSONAL INTEGRITY,
        
        CRUEL TREATMENT AND TORTURE,
        
        HOSTAGE-TAKING,
        
        ATTACKS ON DIGNITY,
        
        MEDICAL EXPERIMENTATION,
        
        COLLECTIVE PUNISHMENT
        
        In the case of a non-international armed conflict covered by Article 3 common to the 1949 Conventions, the applicable protection regime includes the principle of humanity, the principle of non-discrimination, protection against attacks on life and personal integrity, cruel treatment and torture, hostage taking, attacks on dignity (including forced prostitution), medical experimentation, collective punishment, as well as certain fundamental judicial guarantees.
        In the case of a non-international armed conflict covered by Protocol II, the protections granted include those of common Article 3 which the Protocol specifies in a more detailed manner (this is particularly the case with fundamental judicial guarantees).
        
        AP 2 ADDS PROTECTION ATOP OF ART. 3
        In addition, Protocol II adds several protections which are not specifically provided for in common Article 3.
        This is the case of certain provisions which provide for special protection (which go beyond the fundamental protections granted to all "non-participants" in hostilities) to children, to women in detention (including pregnant women and mothers of young children).
        
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        ALSO INCLUDES MILITIAS, THOSE ACCOMPANYING ARMED FORCES,
        However, this status is not reserved only to members of the governmental armed forces, other specific categories of people may benefit from it, as shown in the list in Article 4 of the Third Convention
        
        EXCEPT IF THESE ACTS ARE SUBJECT TO CRIMINAL PROSECUTION
        
        C. PROTECTED CIVILIANS (GC 4)
        
        HISTORICALLY, IHL PROTECTED COMBATANTS NO LONGER A THREAT
        IHL initially focused on the protection of combatants no longer being a threat to the enemy. These people were the almost exclusive recipients of the rights conferred by the first Geneva Convention of 1864, as well as by the Hague Conventions of 1899 and 1907 and the Geneva Convention of 1929.
        This lack of attention from the international community for the civilian population and civilians was not the result of a lack of humanity, but simply the result of a practical reality: the immense majority of the victims of the war were soldiers. The gradual transformation of this situation naturally led to the development of IHL in order to specifically protect civilians.
        
        GC 4 IS NOT INTENDED TO PROTECT CIVILIAN POPULATION FROM THE
        EFFECTS OF HOSTILITIES, BUT ONLY THE ARBITRARINESS OF THE ENEMY POWER
        The Fourth Geneva Convention is not intended to protect the civilian population from the effects of hostilities, but only against the arbitrariness of the enemy power in whose power it is found.
        The definition of “protected civil person” is found in Article 4 of the Fourth Geneva Convention , in which we find the expression “in the hands of the enemy” which does not only refer to the exercise of a direct power.
        
        MERELY BEING IN TERRITORY OF PARTY DOES NOT MEAN ONE IS "IN THE HANDS" OF THE AUTHORITIES OF THAT PARTY
        Indeed, the mere fact that an individual is in the territory of a party to the conflict or in occupied territory implies that he is "in the hands" of the authorities of that party or occupying power.
        
        "NATIONALS" OF STATES NOT BOUND BY CONVENTION ARE NOT PROTECTED
        Furthermore, a literal interpretation of Article 4 of the Fourth Convention means that all nationals are excluded from the benefit of the Convention.
        
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        i. PROVISIONS COMMON TO ANY TERRITORY IN WHICH THE ARMED CONFLICT TAKES PLACE
        
        ii. PROTECTION OF THE CIVILIAN POPULATION IN OCCUPIED TERRITORY
        
        iii. ENEMY NATIONALS WHO ARE IN THE NATIONAL TERRITORY OF EACH OF THE PARTIES TO THE CONFLICT
        
        SPECIAL PROTECTIONS FOR CERTAIN CATEGORIES OF CIVILIANS
        
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        FOREIGNERS OF THE ENEMY STATE HAVE THE RIGHT TO LEAVE IN CERTAIN CIRCUMSTANCES AND TO PROTECTION AGAINST CERTAIN ACTIVITIES
        The Fourth Convention recognizes certain important rights for foreigners who are in the territory of a State which wages a war against another State, in particular the right to leave this territory in certain circumstances, and protection against certain activities, in particular the contribution to the efforts of war of the party on the territory of which they are.
        
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        GC 4 IS LARGELY ON SPECIFIC RULES ON PROTECTION OF CIVILIAN POPULATION IN OCCUPIED TERRITORIES
        A large part of the Fourth Convention deals with the specific rules applicable to the protection of the civilian population in occupied territories.
        The occupying Power must actively protect the civilian population in the territory it occupies, and will be limited in terms of the changes it can bring to this territory.
        
        For example, the occupying Power is prohibited from transferring its own civilian population to the occupied territory, deporting the occupied population from its territory, destroying civilian property in the occupied territory, fundamentally changing the applicable legislation (except under certain specific circumstances), to requisite the natural resources of the occupied territory, etc. The occupying Power will also have to respect its own obligations under international human rights law.
        
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        ARTICLE 27 OF GC 4
        Under Article 27 of the Fourth Convention: “Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs.
        They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity ”.
        
        RAPE, PHYSICAL/MORAL CONSTRAINT TO OBTAIN INFO, COLLECTIVE PUNISHMENT, LOOTING, HOSTAGE-TAKING, OR REPRISALS ARE PROHIBITED
        This results in prohibitions against rape, any physical or moral constraint, in particular to obtain information, as well as prohibitions on collective punishment, looting, hostage taking or reprisals.
        
        PROTECTED PERSONS MAY BE INTERNED.
        CONTROL AND SECURITY MEASURES MAY BE TAKEN BECAUSE OF THE WAR
        Article 27 specifies, however, that the parties to the conflict may take, with regard to protected persons, such measures of control and security in regard to protected persons as may be necessary as a result of the war. In other words, it means in particular that they can be interned.
        
        What are "moral constraints"?
- - - - INTERNMENT ALLOWS DETAINING AUTHORITIES TO DEPRIVE PERSONS OF LIBERTY NOT SUBJECT TO CRIMINAL PROCESS
        The exceptional nature of internment lies in the fact that it allows the detaining authority to deprive persons of liberty who are not subject to criminal process, but are nevertheless considered to represent a real threat to its security in the present or in the future.
        
        SECURITY OF THE STATE COULD NOT BE DEFINED IN A MORE CONCRETE FASHION
        As the Commentary on the Fourth Geneva Convention explains, “It did not seem possible to define the expression ‘security of the State’ in a more concrete fashion.
        
        THUS, IT IS UP TO THE GOVERNMENTS TO DECIDE
        It is thus left very largely to Governments to decide the measure of activity prejudicial to the internal or external security of the State which justifies internment or assigned residence.”
        
        INTERNMENT FOR THE SOLE PURPOSE OF INTELLIGENCE GATHERING IS NOT JUSTIFIED
        While this may be the case, it is clear, for example, that internment or administrative detention for the sole purpose of intelligence gathering, without the person involved otherwise presenting a real threat to State security, cannot be justified.
    - - INTERNMENT IS ONLY ON THE BASIS OF INDIVIDUAL DECISION IN EVERY SPECIFIC CASE
        A civilian can be interned in international armed conflict only on the basis of an individual decision taken in every specific case.
        
        INTERNMENT CANNOT BE A
        COLLECTIVE MEASURE
        The notion that internment cannot be a collective measure is established under the Fourth Geneva Convention in situations of occupation.
        
        EN BLOC INTERNMENT OF ENEMY NATIONALS IS PROHIBITED
        En bloc internment of enemy nationals in a State’s own territory is also prohibited, as it would amount to, and violate the general prohibition of, “collective punishments” under Article 75 (2) (d) of Additional Protocol I.
        
        A LARGE NUMBER OF PERSONS MAY BE INTERNED BUT THE DECISION FOR EACH PERSON'S INTERNMENT MUST
        STILL BE INDIVIDUAL
        This does not mean that a detaining authority cannot intern a large number of persons, but that both the initial decision on internment and any subsequent decision to maintain it, including the reasons for internment, must be taken with respect to each individual involved.
      - THESE RULES ALSO APPLY TO NIACs
        Even though humanitarian law governing non-international armed conflicts is silent as to the procedural rights of internees, under human rights law any measure derogating from the right to liberty of person must be “strictly required by the exigencies of the situation” of public emergency necessitating the derogation;
        It may be taken only to the extent required thereby, and must thus be in accordance with the principle of proportionality.
        
        EN BLOC INTERNMENT IS AGAINST THE PRINCIPLE OF PROPORTIONALITY
        A State’s en bloc, non-individual detention of a whole category of persons could in no way be considered a proportional response, regardless of what the circumstances of the emergency concerned might be. Th e idea of collective measures of any kind is antithetical to the rules, spirit and purpose of human rights law.
      - INTERNMENT/ADMINISTRATIVE DETENTION MUST CEASE AS SOON AS THE REASONS FOR IT CEASE TO EXIST
        Internment/administrative detention must cease as soon as the reasons for it cease to exist
        
        INTERNMENT/ADMINISTRATIVE DETENTION MUST CONFORM TO THE PRINCIPLE OF LEGALITY
  - - - RIGHT TO BE REGISTERED AND HELD IN A RECOGNIZED PLACE OF INTERNMENT/ADMINISTRATIVE DETENTION
        
        RIGHT TO BE REGISTERED AND HELD IN A RECOGNIZED PLACE OF INTERNMENT/ADMINISTRATIVE DETENTION
        
        FOREIGN NATIONALS IN INTERNMENT/ADMINISTRATIVE DETENTION
        
        A PERSON SUBJECT TO INTERNMENT/ADMINISTRATIVE DETENTION HAS THE RIGHT TO CHALLEGE, WITH THE LEAST POSSIBLE DELAY, THE LAWFULNESS OF HIS OR HER DETENTION
        
        REVIEW OF THE LAWFULNESS OF INTERNMENT/ADMINISTRATIVE DETENTION MUST BE CARRIED OUT BY AN INDEPENDENT AND IMPARTIAL BODY
        
        AN INTERNEE/ADMINISTRATIVE DETAINEE SHOULD BE ALLOWED TO HAVE LEGAL ASSISTANCE
        
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