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Protection of individuals in NIAC - Coggle Diagram
Protection of individuals in NIAC
I- Applicable laws
A- ART 3
The scope of application is very general. All the persons who are not participating/no longer in hostilities should be humanly treated. Certain acts are prohibited. All these persons are not involved in war so they should be treated humanely.
ART 3 -> wide scope of application but narrow protection (no status & rights for non-state armed group -> no implied recognition/no legitimacy....)
The scope of application: civilians and all those who are no longer fighting. Those persons must be treated humanely.
1) Does common ART 3 regulate only the protection of individuals or also the conduct of hostilities ?
Should ART 3 also apply when people are not in the hands of the parties (= regulate hostilities)
The ICRC says that ART 3 does not deal with the conduct of hostilities but only the protection of individuals.
Some scholars say the opposite: ART 3 protects individuals and regulates the conduct of hostilities (even if you are not controlled by the armed group). 2 considerations
In the listed acts of ART 3 , we find murder, so you do not need control. Murder can occur without physical control over the victim
Since the listed acts (e.g. torture, cruel treatment) are prohibited against anyone, including members of armed forces, the protective scope must logically extend to certain acts committed during hostilities, not just in detention
2) Does common ART 3 protect against abuse by one’s own armed forces ?
Normally ART 3 is for armed groups fighting against each other (ART 3 protects individuals against the enemy). Quid when armed forces commit acts on their own members (case of kids that have been recruited who suffered of sexual crimes)?
Common ART 3 could protect individuals who have suffered from violence from their own armed forces
B- AP II
Restricted scope of application (ART AP II) BUT wide protection-> applies only to NIACs where the NSA :
operates under responsible command
exercises control over part of the national territory
is capable of conducting sustained and coordinated military operations
AP II (for high intensity -> the terrorist group controls a part of the territory).
C- Customary international law
Beyond common art 3 and AP II, there are customary laws that are very important -> they have been identified in the jurisprudence of tribunals, by the ICRC
There are many provisions that are applied to IACS and have been extended by state practice to NIACs
To know the scope of application of customary laws, we look at the definition of common ART 3. If the criteria of ART 3 are fulfilled -> application of customary laws
Customary international law fills the substantive and scope limitation of ART 3 and AP II.
II- General principles (ART 3)
A- Person protected
There is no formal status of “protected persons” for sovereignty reasons and effectivity reasons (fluidity of the notion of armed forces).
There is a de facto protection of individuals who do not take part in hostilities (and are thus unlawful target) :
Civilians
Non-combatant members of armed forces (medical personnel)
Members of armed forces (state and organized NSA) who have laid down their armes (voluntary decision) or are placed hors de combat (external factors : sickness, wounds, detention etc)
B- Principle of human treatment (preservation of human dignity)
The basic principle we find in ART 3 is the principle of human treatment. There is a general clause that says that all the person who are not fighting should be treated humanely.
It is a catch-all close -> Individuals protected under Common Article 3 must always be treated humanely. + human treatment must be respected in all circumstances
Context specific protection : Protection varies depending on the individual's environment, age, sex, cultural, social, and political background. There is sensitivity to the individual's inherent status and needs.
Absolute protection -> in all circumstances, no derogation justified on the basis of military necessity
Non-reciproqual obligation : it applies regardless of the actions of the opposing party, ensuring the right to human treatment is upheld even in retaliation (représailles) or during wartime.
C- Principle of non-discrimination
Common Article 3 prohibits any form of discrimination, particularly on the grounds of race, color, religion, sex, birth, wealth, political opinion, or nationality. The principle is broad and includes any other similar criteria.
Direct discrimination = specific group is targeted
Indirect discrimination = specific group is indirectly victim of certain policies
BUT principle of nondiscrimination does not prevent some differentiated treatment under the convention (situations différentes, traitements différents)
D- Specific prohibitions
1) Violence to life and person (including murder, cruel treatment, torture, mutilation etc) -> Art. (4)(2)(a) AP II
Death penalty -> while death penalty is not explicitly prohibited, it may only be imposed following regular proceedings (a fair trial)
2) Taking of hostages -> See also Art. (4)(2)(b) AP II
Hostage-taking: Hostage-taking is strictly prohibited, including the seizure, detention, or holding of a person with the threat to kill, injure, or continue detention to compel a third party to act or refrain from acting.
3) Outrages upon personal dignity -> See also Art. (4)(2)(e) AP II
Definition: An outrage upon personal dignity refers to acts that humiliate, degrade, or otherwise violate the dignity of individuals, which must be of significant gravity (e.g., not merely insults). Eg degrading the bodies of dead
4) Prosecution and trials before regularly constituted court affording all the indispensable judicial guarantees -> See also Art. 6 AP II
III- Protection of vulnerable persons (AP II and customary IHL)
A- General principles
1) AP II repeats certain guarantees of common ART 3
Repeats and expands certain principles found in ART 3 + includes specific prohibitions (rape, terrorism, ...)
2) AP II clarifies certain guarantees of common ART 3
Protection of Wounded and Sick: AP II develops the protections for the wounded and
sick, which are briefly mentioned in CA3.
Judicial Guarantees: AP II specifies minimum judicial guarantees for individuals on trial, which are not detailed in CA3.
3) AP II adds new guarantees to common ART 3
Detention : ART 3 is silent about detention -> AP II adds specific guarantees regarding detention to ensure humane treatment.
Protection of women and children - >AP II provides detailed protections for vulnerable groups such as women and children, areas which are not fully addressed in CA3.
Additional protection under customary IHL -> further complements the provisions of ART 3 and AP II by providing protection to various vulnerable groups such as medical personnel, civilians, and others who may not fall directly under the protections defined by CA3
B- Interned persons (Article 5 of AP II)
Internment refers to the detention or confinement of individuals, typically members of armed groups, during conflict.
The wording of Article 5 is significant because it does not explicitly grant armed forces or armed groups the right to detain individuals. This stands in contrast to other provisions concerning the detention of prisoners of war (POWs) or civilians, where clear grounds for detention (e.g., security reasons) are specified.
Article 5 includes minimal guarantees for those interned, which must always be respected, regardless of the party detaining the individual.
1) Sovereignty issues
Sovereignty issues: no right to detain for security reasons is recognized (no legal basis for detention & no procedural guarantees -> challenging detention)
Why? NSAs have no right to detain State armed forces
2) Effectivity issues
Obligation of result: minimum treatment that must be always respected: provision of food & water, safeguards on health & hygiene, rights to receive relief, to practice religion & to appropriate working conditions
Obligation of means (‘within the limits of their capabilities’): separated quarters for women, right to correspond with families, medical examination, evacuation when necessary, etc.
C- Persons subjected to judicial proceedings
1) Sovereignty issues
Similar to Article 5 (internment), Article 6 does not explicitly provide that parties to the conflict (especially armed groups) have the right to trial individuals. States refuses that NSA have rights (detain, try, ...)It is important because :
State armed forces can try individuals under national laws VS the question of armed groups administering trials is more complicated
There is no right to try individuals is recognized to NSA / courts must be regularly constituted (common Art. 3(1)(d)) or offer essentials guarantees of independence and impartiality (
2) Effectivity issues
NSA might often lack the capacity to meet all procedural requirements prescribed under IHL & IHRL. Would it be possible to distinguish imperative requirements from less imperative requirements (that would only need to be implemented ‘within the limits of NSA capabilities’)?
D- Wounded and sick -> common art 3 & art 7-12 AP II
While the provisions in AP II regarding the wounded and sick are not as extensive as those found in IACs, the principles largely mirror the same protections, albeit less developed.
1) Protected persons
Members of armed forces of the parties to the conflict
Civilians who are wounded or sick
2) Principle of impartiality
All persons must be treated impartially, meaning that:
Priority is not based on the affiliation of the person (i.e., whether they belong to the state armed forces or an armed group).
The only ground for priority is medical considerations—in other words, a person who requires urgent care should be treated first, regardless of which side they belong to in the conflict.
3) Passive protection (human treatment) : obligation of result (Art. 7(2) AP II)
This includes protection from harm:
Wounded and sick persons cannot be killed.
There should be no harmful acts against them (e.g., they should not be harmed, mistreated, or targeted).
Loss of protection occurs if the wounded or sick person re-engages in combat. Once they resume hostilities, they lose their protected status.
4) Active protection : obligation of conduct "take all necessary measures" “whenever circumstances permit it”
Obligation to care: NSA may have limited medical facilities & adequate food, clothing, shelter and hygiene
Obligation to search for, collect & evacuate from danger zones
Obligation to record & transmit information
Obligation to evacuate
E- Medical personnel, units & transport (ART 9 AND 12 AP II)
Medical personnel are prohibited from participating in hostilities. If they do, they lose their protection under IHL.
Medical personnel are never to be attacked, and their primary duty is to provide care. Parties to the conflict must allow medical personnel to carry out their duties on the battlefield (collecting the wounded and proving care to those in need whatever which side they belong to, medical units and transports should be protected/not targeted, ...)
1) Medical personnel : medical personnel, who refrain from participating in hostilities must be respected and protected
Providing health care to a NSA is not an act of hostilities. Carrying light weapons for self-defence or the defence of wounded & sick does not entail a loss of protection
2) Medical units and transports : medical units & transports, which are not used to commit acts of hostility, must never be attacked even when carrying out wounded soldiers
Before attacking medical units & transports, warning must be given and attack can be carried out only if warning has gone unheeded after reasonable time limit
3) Emblems : medical personnel and facilities should be identifiable
F- Dead persons ART 8 AP II
1) Principle of impartiality
Dead persons should be treated impartially, with no discrimination based on which side they belong to.
They should be respected, as their dignity must be preserved even after death.
2) Passive protection (obligation to respect) : obligation of result (not to despoil or to mutilate the dead)
3) Active protection -> obligation of conduct
Obligation to search for, collect & evacuate from danger zones (by allowing humanitarian organisations, the ICRC, or civilian population to act and by organizing suspension of hostilities)
Obligation of preventing the dead from being despoiled
Obligation to return the remain & personal effects of the dead to their families (usually requires an agreement between belligerents)
Obligation to bury the dead & obligation to dispose them in a respectful manner, & to respect their graves
Obligation to record all available information (recording of autopsies) prior to the disposal of the dead (for identification purpose) & to mark the location of their (individual) grave
G- Women and children
1) Prohibition of specific acts of violence (raped, enforced prostitution, outrages upon personal dignity) ART 4(2)(e) AP II
2) Special measures of protection
For children: children are entitled to special respect & protection (Art. 4(3) AP II)
For women: the specific needs of women should be respected