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New code for the protection of civilian population and property during armed conflict

Published online by Cambridge University Press:  13 January 2010

Ionel Gloşcă
Ionel Gloşcă*
Affiliation:
Dr. of Laws, Bucharest
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Extract

One of the principles underlying international law applicable in armed conflicts is that no act of war is permitted against the civilian population, consisting, by definition, of persons who take no part in the hostilities.

Until the holocaust of 1939–45, international law gave practically no real protection to the civilian population in the event of war, and was not even intended to do so since up to that time war was considered to be a State activity from which civilians remained aloof. There were, nonetheless, general principles and rules in various international treaties which, in one way or another, related also to the civilian population.

Type
Research Article
Information
International Review of the Red Cross (1961 - 1997) , Volume 20 , Issue 219 , December 1980 , pp. 287 - 315
Copyright
Copyright © International Committee of the Red Cross 1980

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References

1 Doc. D.S. 4 a, b, e, of the Twenty-first International Red Cross Conference, Istanbul, Sept. 1969: Reaffirmation and Development of the Laws and Customs applicable in Armed Conflicts, Geneva, 05 1969, p. 65.Google Scholar

2 Revue Internationale de la Croix-Rouge, 09 1945, pp. 657–661.Google Scholar

3 Declaring that genocide, which in the course of history had caused much loss to humanity, was a crime in international law whether committed in time of peace or of war, the Convention extends condemnation as a crime to the following acts committed with the intention of partly or utterly destroying a national, ethnic, social or religious group: murder of members of the group, serious harm to their physical or mental integrity, inflicting on the group conditions of existence leading to part or complete destruction; measures to prevent births; forcible transfer of children from one group to another.

4 The basis of the Convention was a draft elaborated by a conference of government experts convened in Geneva in 1947. The project was submitted for study to the 17th International Red Cross Conference at Stockholm in 1948.

5 This and other principles were reaffirmed in Resolution XXVIII of the 20th International Red Cross Conference and in Resolutions 2444/XXIII and 2675/XXV of the U.N. General Assembly.

6 The war effort is defined as all activities which in one way or another contribute to the continuation of hostilities. Civilian population may contribute to the war effort without losing the right to protection.

7 Draft Additional Protocols to the Geneva Conventions of 12 August 1949, Commentary, ICRC, Geneva, 1973, p. 58.Google Scholar

8 Doc. D.S. 4 a, b, e: Reaffirmation and Development of Laws and Customs applicable in Armed Conflicts, Geneva, 1969, p. 69.Google Scholar

9 Ibid. This conclusion drawn by the ICRC is given in article 6 of the Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War.

10 Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, second session, 3 May-3 June 1972. Report on the Work of the Conference, Vol. II (Annexes), Geneva, July 1972, p. 7.

11 Such a definition of civilian population is not given in Protocol II, although the Conference did discuss the problem.

12 This paragraph reads: “The provisions of this Section apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air.”

13 The United Kingdom invoked the 1936 London Protocol which obliges submarines to pick up the passengers of shipwrecked merchant vessels.

14 The definition was repeated by the ICRC in article 43 of the Draft Protocol, as follows: “In order to ensure respect for the civilian population, the Parties to the conflict shall confine their operations to the destruction or weakening of the military resources of the adversary and shall make a distinction between the civilian population and combatants, and between civilian objects and military objectives.” Doc. CDDH/1 of the ICRC.

15 Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts (Geneva, 24 May-12 June 1971), Report on the Work of the Conference, ICRC, Geneva, Aug. 1971, p. 80.

16 Ibid. p. 80.

17 Ibid. p. 80.

18 Doc. CE/COM.III/6, pp. 25–26.

19 Various international laws refer to, but do not define, “military objective” (see art. 8 of The Hague Convention of 14 July 1954 on the protection of cultural property in armed conflict, and art. 19 of the Fourth Geneva Convention of 12 August 1949 on the protection of the civilian population in war).

20 See Giraud, E., in Les problèmes que pose l'existence des armes et la distinction entre les objectifs militaires et non-militaires en général Google Scholar, Provisional report submitted to the Institute of International Law, Fifth Commission, Geneva, 1964, p. 30.

21 The term implies both actual military operations and the production of equipment of war.

22 See Schwartzenberger, Goerg, in Les problèmes quepose… op. cit., p. 22.Google Scholar

23 Les problèmes que pose…, op. cit., p. 22.Google Scholar

24 Such a point of view is a flagrant inexactitude, for State practice alone cannot constitute customary international law. To become customary, a practice must be of long standing, i.e. it must have been repeated, constant and general, in other words, practised also by other States. In addition, it must be based on subjective grounds: e.g. the general public conviction that law admits of such behaviour by a State.

25 Giraud, E., op. cit., pp. 26–27.Google Scholar

26 Singh, Nagendra, Lesproblèmes quepose…, op. cit., p. 26.Google Scholar

27 Doc. CE/COM III/27.

28 I.e. civilians carrying out a humanitarian function—civilian medical personnel, civil defence personnel—and those protected by reason of their condition (age, sex, state of physical or mental health, functions, etc.): children, women, journalists, police, fire-brigade staff, etc.

29 Civilian persons taking a direct part in hostilities are not entitled to protection so long as they continue taking such a part.

30 CE/COM.III/6; CE/COM.III/13.

31 Article 52(1), Protocol I, entitled “General protection of civilian objects”.

32 A rule to that effect had been proposed by the Netherlands at the 1907 Hague Conference, but was not approved.

33 In the classical concept of the law of war, ocupatio bellica was actual occupation without conveyance of sovereignty; it involved only the temporary and limited substitution of authority. For details, see Col. Vasile Gherghescu and DrCloşcă, Ionel, Règles de droit international relatives à l'état de paix et à l'état de guerre. Editions Militaires, Bucharest, 1972, pp. 229–232.Google Scholar

34 See para. 4, art. 2 of the U.N. Charter; the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (principle 1); the 1977 definition of aggression.

35 Relief action for the civilian population of occupied territory is governed by articles 59–62 and 108–111 of the Fourth Geneva Convention of 1949 and by article 71 of Protocol I of 10 June 1977.

36 Resolution 1515/XLVIII/ECOSOC.

37 In 1959 the U.N. General Assembly, by Resolution 1386/XIV, adopted the “Declaration of the Rights of the Child”, intended to ensure special protection for all children in all circumstances. The Declaration contains ten principles for all who have responsibility—parents, charitable organizations, local authorities and governments—who are invited to recognize and ensure the application of the rights of the child.

38 Doc.A/8371 and Add. 1–3, including the draft annex to the Protocol relative to the composition and functions of the international professional committee for the protection of journalists on dangerous missions; Doc.A/8438 and Add.1 containing a draft international convention on the protection of journalists on dangerous missions; Doc.A/8371 and Add.1, containing general comments on the respective documents.

39 Doc.A/C.3/L 1902 (draft convention proposed by Australia); Doc.A/C.3/1 1903 (U.S. working document); Resolutions 1597 (L) of the Economic and Social Council of 21 May 1971 stating the Council's decision to submit to the General Assembly a draft international convention on the protection of journalists on dangerous missions.