#17208 - International Humanitarian Law Ihl From The Civilian Perspective - International Humanitarian Law / Law of Armed Conflict

IHL from the Civilian Perspective 2

Humanitarian Access 2

Qualifying Aid 2

Access to Civilians 2

Medical Care and Treatment 2

Medical Care in General 2

Medical Personnel, Units and Transports 3

Detention of Civilians 3

Detention in IACs 3

Detention in NIACs 4

Obligations of Occupying Power 4

Administration and Public Order 4

Protections for Civilian Population 4

Note on citations:

For treaties, I have used an abbreviation, followed by a period and the article number. Thus Geneva Convention IV, Article 42 becomes “GC4.42.” Article 2 Common to the Geneva Conventions becomes GC.CA2. The Hague Regulations are HR, and the Protocols Additional to the Geneva Conventions are AP1 & AP2.

Citations in the form “HB000” refer to section numbers in Fleck, The Handbook of International Humanitarian Law (3rd ed.).

I’ve also cited certain academic articles, commentaries and government documents:

ILA-Sydney refers to the International Law Association’s 2018 Sydney Conference Report on the Use of Force.

Sassòli refers to Marco Sassòli’s 2015 article “Combatants” in the Max Planck Encyclopedia of Public International Law.

DoD refers to the US Department of Defense Law of War Manual (Dec. 2016 Update).

ICRC guidance on civilians directly participating in hostilities refers to Nils Melzer (ICRC) Interpretive Guidance (2009).

Lubell refers to Noam Lubell, “Fragmented Wars: Multi-Territorial Military Operations Against Armed Groups” 93 International Legal Studies 215 (2017).

• “If the civilian population of a party to the conflict is inadequately supplied with indispensable goods, relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be permitted. Every state, and in particular the adversary, is obliged to grant such relief actions free transit, subject to the right of control” [HB503,524;GV4.23,28,55;AP1.70;AP2.18].

• Humanitarian principles: humanity, neutrality, impartiality, independence

• Primary responsibility for protection of civilians rests with the government.

  • Many states want to reject humanitarian assistance because it interferes with balances of power between people and government and other states; or because it infringes on sovereignty; or because it is being manipulated, offered with ulterior motives.

• Right of initiative: humanitarian organizations can request access, with a strong IHL argument for why states should grant it.

• Unimpeded access: most relevant for perishable food and medicine.

• Subject to right of control: states can search convoys, check names and IDs of aid workers, dictate the routes traveled, require registration of organizations.

  • Usually requires states consent. But in Syria 2014, there was such grave concern, aid groups went across despite Syria’s denial of consent. Current view is that if a state arbitrarily denies access, it is a violation of IHL and forfeits the right to restrict access.

• GC.GC3 makes clear an offer of aid is not a sign of recognizing a NSAG or territory.

• Medical care must be provided to all sick or wounded persons, regardless of their status.

  • AP1.10 & AP2.7: All the wounded, sick and shipwrecked, [AP1: to whichever party they belong]/[AP2: whether or not they have taken part in the armed conflict], shall be respected and protected.

    • To the fullest extent practicable and with the least possible delay, they should receive the care and attention required by their condition.

    • There shall be no distinction among them founded on any grounds other than medical ones.

  • GC.CA3: In NIAC, the wounded and sick shall be collected and cared for.

  • GC4.16: In IAC, wounded civilians shall be object of protection and respect.

  • GC1.12: In IAC, wounded members of armed forces shall be object of protection and respect.

• Besides provision of medical care, the other major part of this area is protection of medical personnel, supplies, transport, units etc., see above §Prohibited Methods.

• Wounded and sick are distinguished from hors de combat (which is a broader category) [AP1.8].

• Areas underregulated by IHL:

  • Non-AP2 NIACS.

  • Capture and retention of NIAC medical personnel.

  • Lack of definition of “medical ethics” in AP1 & AP2.

  • Non-denunciation by medical caregivers (providing information on patients relevant to conflict) is “subject to national law” under AP2.10.

  • No IHL protection for trans-international boundary travel of medical caregivers.

    • E.g., US civilian physicians travel to Libya. US has no obligation to protect them if not in AC with Libya.

• GC1.24: Military personnel qualifying for protection

  • Authorized by and under control of a party to the conflict.

  • Exclusively assigned to medical functions.

• Impartiality: partial care does not make a medical personnel targetable or constitute engaging in hostilities, but does constitute a breach of that state’s obligations under IHL.

  • GC4.19 & AP1.13: Civilian hospitals protected unless used to commit acts harmful to enemy.

    • In such case, party must give hospital warning to cease. If hospital does not, it loses protection.

• Non-military medical caregivers: generally protected as civilians. Cannot use protective emblems.

• Differences between IAC and NIAC:

  • IAC: GC1 & GC4

    • Medical personnel from military, Red Cross/Crescent/Crystal, and neutral-state humanitarian organizations.

    • Law emphasizes they must be in communication with parties to conflict, which is in tension with principle of impartiality.

  • NIAC:

    • GC.CA3: no special status for medical personnel

    • AP2: Less clear definition of medical personnel/units/transports as compared to AP1, but majority view is they must be assigned as medical by a party. Applies to NSAGs as well.

• Medical ethics

  • AP1.16 & AP2.10: Under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefitting therefrom.

  • Intra-IHL approach: standards, rules and principles for defining ethics are built into IHL framework.

  • Extra-IHL approach: should be defined by national codes and laws, World Medical Association, etc.

• GC4.4: applies to persons not covered by GC1, GC2, or GC3.

  • GC4.5: In the territory of a party to the conflict, where the party is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the state, such person shall not be entitled to privileges under GC4 if provision would harm security of the state.

    • Except for the provisions of GC4.Part II (Arts.13-26), which apply to entire population of countries in conflict.

  • GC4.41,42: state can intern or assign residence of civilians if absolutely necessary, or if the person requests.

  • GC4.79-82: specific provisions for treatment.

  • GC4.132, they should be released as soon as the reasons which necessitated their internment no longer exist.

• Detainees are those who do not benefit from more favorable treatment (e.g., PoW status) enjoy the fundamental guarantees of AP1.75:

  • (1) Treated humanely without distinction based on race, sex, political opinion, religion etc.

  • (2) No murder, torture, corporal/collective punishment, rape, etc., or threats thereof.

  • (3) Must be informed in understandable language of reasons for detention.

  • (4) No sentence or penalty for offense related to armed conflict unless passed by impartial and regular court. [Lots of specifics here, basically rule of law stuff.]

  • (5) Women in separate quarters from men; families together.

  • (6) Protected under AP1.75 until final release or repatriation, even after end of conflict.

• AP1.75 is recognized as CIL. The US recognizes it as CIL, but only with regard to IACs.

  • It usually matters in an IAC for non-PoWs (e.g., unprivileged combatants, etc.)

  • It’s pretty similar to human rights law, particularly in the due process provisions. The difference is IHL provides no basis for individual claims against a state, unlike IHRL.

• GC.CA3 refers to detained persons, so they get the protections mentioned there.

• AP2.4-5:...