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Protection of individuals in IAC -> protection of civilians - Coggle…
Protection of individuals in IAC -> protection of civilians
I- Who is protected under Gv IV?
A- The whole of the populations of the countries in conflict (ART 13 GC IV)
The Convention provides basic protection to the entire civilian population of the countries in conflict, regardless of any distinguishing criteria — including nationality.
B- Protected persons (ART 4 GC IV)
A more developed system of protection applies to specific individuals known as protected persons -> persons who find themselves
In the hands of a party to the conflict
Think of Ukrainians living in Russia, or Russians living in Ukraine during the conflict
These individuals are considered to be in the hands of the opponent, and therefore receive protected status.
They risk expulsion, discrimination, or restrictions on movement, and are protected under GC IV
In the hands of an occupying power -> eg occupied territory -> Ukraine
Russia invades and administers parts of Ukraine.
Ukrainians in these occupied areas are considered to be under Russian control.
Russia must ensure their security, the functioning of courts, etc.These civilians are protected persons under GC IV.
Grey zone : invasion without full control
What happens if Russia invades a region of Ukraine but does not control or administer the territory ? The local Ukrainian population is not clearly in Russia hands. We do not know if they are protected under GC IV -> unclear in the convention. 2 possible interpretations of occupation
Broad definition of occupation -> even a partial/temporary presence is enough to trigger the application of the law of occupation
Broad definition of “in hands of” -> as soon as the invading power has control over civilians -> protection should apply
1) Criteria of nationality
Restrictive approach: only persons who do not have the nationality of the State in whose hands they are -> protected.
Flexible approach: replacement of the criteria of ‘nationality’ by a criteria of ‘allegiance’ (Tadic Appeal Judgment, § 166) -> in the light of these new types of conflict the ICTY ruled that nationality is not the decisive factor
What matters is allegiance: to which state do the civilians pledge allegiance?
2) Criteria of territoriality
The Geneva Conventions apply not only based on nationality but also on territorial presence
a) Persons in the hands of a party to the conflict
Traditional approach: Only aliens (foreign nationals) present in the territory of the
invading or invaded States are protected. (+ Art. 75 AP I + functional conception of occupation);
Flexible and controversial approach : minimal control over the invaded territory or the persons is sufficient
b) Persons in the hands of an occupying power
Traditional approach: Occupation requires that the occupying power exercises effective control over the territory.
Functional approach: Even limited contact between invading forces and civilians imposes (negative) obligations on the former from the moment they encounter civilian populations.
There are 2 layers of protection
General protection
Applies to all civilians, regardless of status or nationality
There are the guarantees found in Part II of the Convention
Protected persons
A more advanced protection system for certain individuals depending on their situation -> in the hands of the parties or in the hands of an occupying power
II- How are civilians generally protected ?
A- Basic protections offered to the whole population (PART II GC IV) -> apply to everyone
= general rules on aid and relief: hospitals; protected zones; wounded and sick; basic protection of children; establishment of family links
B- Developed protections offered to persons in the hands of the other belligerents (PART III)
1) In the hands of a party to the conflict OR the occupying power (PART III, section I)
Danger zones : avoidance of civilian presence in danger zone
Protected powers (ICRC) : role of the IRCR and protecting powers
Human treatment (prohibition of corporal punishment, torture etc)
Prohibition of specific illegal acts : collective penalties, reprisals, pillage, taking of hostages etc)
2) In the hands of a party to the conflict (PART III section II)
Right to leave the territory (unless contrary to the national interests of the state / if refusal -> right of appeal) ART 35-36 GC I
Provisions to protect aliens who are repatriated (satisfactory conditions of safety, hygiene, sanitation and food) ART 35-36 GC I.
Provisions to protect aliens who remain in the territory of the invading state -> entitled to legal protection and basic standards of living
3) In the hands of the occupying power (PART III, Section III)
Eg if Russia controls part of Ukrainian territory
Applies when a power de facto administers the territory. The occupying power is not sovereign but has extensive obligations toward the civilian population
III- Under which conditions can civilians be interned? What treatment is offered to them in detention ?
Can civilians be interned or detained ?
Comparison with POWs -> combatants can be detained until the end of hostilities even if they did nothing wrong VS civilians cannot be arbitrarily detained -> detention is ONLY allowed based on concrete, individualized reasons. Must be justified by imperative reasons of security (ART 42 GC IV)
Legitimate reasons for civilian internment -> examples of civilians who may be lawfully detained
Those who participate directly in hostilities
Those who pose a threat to national security, even without committing a crime
Voluntary human shields -> people who position themselves to block military action
Those providing material support (weapons, logistics, …)
BUT if civilians are used against their will (e.g., involuntary human shields), they cannot be detained, civlian involvement in support roles raises legal unvertainty
Legal safeguards
Civilian internment must be decided on an individual basis.
A review commission must assess whether the person continues to pose a threat.
Civilians must be released once they no longer represent a danger.
Unlike POWs, civilian detention is not open-ended.
A- Under which conditions can civilians be interned ?
1) Substantial conditions
Principle : “if the security of the detaining power makes it absolutely necessary or imperative reasons of security (ART 42 & 78 GC IV)
2) Procedural condition
Decision to intern on individual basis by independent tribunal + right of appeal
Periodical review of decision to intern (every 6 months)
B- What treatment is offered to civilians in detention ?
General principle : detention of civilians under international humanitarian law is not a punishment or act of revenge. It is a preventive and administrative measure, designed to balance the security interests of the detaining power with the imperative of humane treatment.
Civilian internment must always be exceptional, justified by imperative reasons of security, and subject to regular review.
Specific conditions: it is similar to POW except
Place of detention (ART 76 GC IV) : civilians must be detained in the occupied state and must not be exposed to the danger of war
Employment and remuneration (ART 95 GC IV) : civilians may be employed only voluntarily
Disciplinary regime (ART 117 GC IV) : application of the law in force in the territory where civilians are detained
Liberation and repatriation (ART 132 and 133 GC IV) : civilians must be released as soon as the reasons which justify internment no longer exist (exception : seriously wounded/sick, criminal proceedings or punishment)