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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
Commentary
of 1987
Protection of the civilian population
[p.1447] Article 13
-- Protection of the civilian population
[p.1448] General remarks
4761 Article 13 codifies the general principle that protection is due to the civilian population against the dangers of hostilities,
already recognized by customary international law and by the laws of
war as a whole. This principle is translated into a specific rule in
paragraph 2, with the absolute prohibition of direct attacks and of
acts or threats of violence committed with a view to spreading terror. Paragraph 3 defines the field of application of the general
principle ' ratione personae: ' civilians lose their right to
protection under the whole of Part IV if they take part in
hostilities, and throughout the duration of such participation.
4762 Both as regards substance and structure, this article corresponds to the first three paragraphs of Article 51
of Protocol I
' (Protection of the civilian population), ' and reference may also
be made to the commentary thereon. (1) Unlike Protocol I, which
contains detailed rules, only the fundamental principles on
protection for the civilian population are formulated in Protocol II
and it is done in a very rudimentary form in this article, even
though its constitutes the basis of Part IV.
4763 The draft submitted by the ICRC, and adopted in Committee, had three provisions: Article 24: Basic rules; Article 25: Definitions:
Article 26: Protection of the civilian population. (2) In accordance
with the amendment submitted by the Pakistani delegation when the
instrument was finally adopted in the plenary meetings, only the
first paragraphs of Article 26 of the draft were retained. (3) These
constitute Article 13 in its present form.
4764 This radical simplification does not reduce the degree of protection which was initially envisaged, for despite its brevity,
Article 13 reflects the most fundamental rules. How to implement them
is the responsibility of the parties, and this means that the safety
measures they are obliged to take under the rule on protection will
have to be developed so as to best suit each situation, the
infrastructure available and the means at their disposal.
Paragraph 1
4765 This paragraph lays down the general principle that protection is due to the civilian population, which forms the cornerstone of Part
IV.
[p.1449] ' First sentence '
4766 The term "civilian population" is the usual term for referring to civilians as a group. The text refers simultaneously to the civilian
population and to individual civilians to indicate that the civilian
population is protected as a whole in the same way as the individuals
which constitute it.
4767 The general protection covers all civilians, without any distinction. The term "general protection" is used in contrast to the
special protection designed to give additional protection to certain
categories of individuals belonging to the civilian population (the
wounded and sick, children, medical personnel etc.). (4) Special
protection does not replace the general protection but adds to it.
4768 What is meant by the phrase "general protection against the dangers arising from military operations"? In other words, what is
the scope of the general principle of protection?
4769 "Military operations" refers to movements of attack or defence by the armed forces in action. (5) They present the civilian population
with two types of danger; on the one hand, that of attacks as such
and, on the other, the incidental effects of attacks.
4770 Protection covers "the dangers arising from military operations". This means that the obligation does not consist only in abstaining
from attacks, but also in avoiding, or in any case reducing to a
minimum, incidental losses, and in taking safety measures.
4771 To ensure general protection for the civilian population consequently implies:
1) an absolute prohibition of direct attack against the civilian population as such, or against civilians; this prohibition is
specifically mentioned in paragraph 2 discussed below;
2) reducing the effects of military operations which could affect protected persons.
4772 The implementation of such protection requires that precautions are taken both by the party launching the attack during the planning,
decision and action stages of the attack, and by the party that is
attacked. For example; military installations should not be
intentionally placed in the midst of a concentration of civilians
with a view to using the latter as a shield or for the purpose of
making the adverse party abandon an attack, without forgetting any
other safety measures which are not explicitly laid down in Protocol
II. (6) Each party should, in good faith, design such measures and
adapt them to the specific circumstances, bearing in mind the means
available to it, and based on the general principles relating to the
protection of the civilian population which apply irrespective of
whether the conflict is an international or an internal one. It is
appropriate to recall here the most important of these principles,
i.e., the principle to use the minimum force [p.1450] required to
harm the enemy, the principle of distinction and the principle of
proportionality which only intervenes when it is not possible to
ensure the total immunity of the population:
-- parties engaged in a conflict do not have an unlimited right as regards the means of injuring the enemy; (7)
-- a distinction should be made at all times between persons participating in hostilities and the civilian population, so that
the latter may be spared as far as possible; (8)
-- the relation between the direct advantage anticipated from an attack and the harmful effects which could result on the persons
and objects protected (9) should be considered in advance.
' Second sentence '
4773 "To give effect to this protection": the use of this phrase does not imply that protection is only considered in case of military
operations. (10) In fact, the Protocol contains other rules to be
observed in all circumstances by armed forces or armed groups, and
these also help to make the protection of the civilian population
effective. (11)
4774 This paragraph is worded in the same way as Article 51
' (Protection of the civilian population), ' paragraph 1, of Protocol
I, though without including a reference to other applicable rules of
international law. (12)
4775 Applicable international law includes customary international law, whether or not it has been codified, in addition to treaty
law. (13) That follows from the general theory of international law
and from the very nature of customary international law. The question
may well be asked whether the reference to international law was
intentionally omitted in order to suggest that customary law is
deemed not to apply to situations of non-international armed
conflict.
[p.1451] 4776 It would seem that this is not the case. The discussions in the Conference do not indicate that any doubt was cast on the
applicability of customary law. The reference to other rules of
international law was probably omitted because it was not considered
necessary, given that the only rule explicitly laid down for
non-international armed conflicts is common Article 3
of the 1949
Conventions, which does not contain provisions relating to the
protection of the civilian population as such. (14)
Paragraph 2
' First sentence '
4777 This sentence lays down an absolute obligation applicable at all times: "The civilian population as such, as well as individual
civilians, shall not be the object of attack."
' Scope of the rule '
4778 Civilians, whether in groups or individually, may not be made the object of an attack.
4779 This rule prohibits launching direct attacks against the civilian population. On the other hand, secondary effects of military
operations directed against military objectives, (15) which might
incidentally affect the civilian population, are not specifically
referred to here. (16)
4780 The prohibition of direct attack is further corroborated by the use of the expression "the civilian population as such", taken from
the United Nations resolutions on this question. (17)
' Individuals within the civilian population '
4781 Article 25, paragraph 3, of the draft adopted in Committee provided that: "The presence, within the civilian population, of
individuals who do not fall within the definition of civilians does
not deprive the population of its civilian [p.1452] character." (18)
This rule, which is contained in Article 50
' (Definition of
civilians and civilian population), ' paragraph 3, of Protocol I, was
not included in Protocol II.
4782 It cannot be denied that in situations of non-international armed conflict in particular, the civilian population sometimes shelters
certain combatants, and it may be difficult to ascertain the status
of individuals making up the population. However, we must point out
that if the mere presence of some individuals not protected under
paragraph 3 of this article were to permit an attack against a whole
group of civilians, the protection enjoyed by the civilian population
would become totally illusory. Thus the fact that the Protocol is
silent on this point, as on other points, should not be considered to
be a licence to attack.
' Definition of attack '
4783 Protocol I defines attacks. This term has the same meaning in Protocol II. (19) Article 49
' (Definitions of attacks and scope of
application), ' paragraph 1, of Protocol I, reads as follows
"Attacks" means acts of violence against the adversary, whether in
offence or defence." The fact that both attacks in offence or in
defence are covered is because the term "attacks" does not cover only
acts by those who have initiated the offensive; it is a technical
term relating to a specific military operation limited in time and
place. (20)
4784 It should be noted that the prohibition of attacks against the civilian population as such, and against individual civilians,
remains valid, even if the adversary has committed breaches. (21)
Acts of terrorism, collective punishment and pillage are expressly
forbidden in Article 4
' (Fundamental guarantees) ' of the
Protocol. (22) Even unlawful acts on the part of the adverse party
cannot justify such measures. Furthermore, a denunciation of the
Protocol would not take effect until the end of the armed conflict
and could not serve as a justification for failing to fulfil
obligations incurred under it. (23)
[p.1453] ' Second sentence '
4785 "Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited." Attacks
aimed at terrorizing are just one type of attack, but they are
particularly reprehensible. Attempts have been made for a long time
to prohibit such attacks, for they are frequent and inflict
particularly cruel suffering upon the civilian population. Thus the
Draft Rules of Aerial Warfare, prepared in The Hague in 1922, already
prohibited such attacks. (24) Air raids have often been used as a
means of terrorizing the population, but these are not the only
methods. For this reason the text contains a much broader expression,
namely "acts or threats of violence" so as to cover all possible
circumstances.
4786 Any attack is likely to intimidate the civilian population. The attacks or threats concerned here are therefore those, the primary
purpose of which is to spread terror, as one delegate stated during
the debates at the Conference. (25)
Paragraph 3
4787 This paragraph defines when civilians are protected: civilians lose their right to protection under this Part if they take a direct
part in hostilities and throughout the duration of such
participation. The term "direct part in hostilities" is taken from
common Article 3
, where it was used for the first time. It implies
that there is a sufficient causal relationship between the act of
participation and its immediate consequences.
4788 Hostilities have been defined as "acts of war that by their nature or purpose struck at the personnel and ' matériel ' of enemy
armed forces". (26) However, several delegations considered that the
term "hostilities" also covers preparations for combat and returning
from combat. (27)
4789 Those who belong to armed forces or armed groups may be attacked at any time. If a civilian participates directly in hostilities, it
is clear that he will not enjoy any protection against attacks for as
long as his participation lasts. Thereafter, as he no longer presents
any danger for the adversary, he may not be attacked; moreover, in
case of doubt regarding the status of an individual, he is presumed
to be a civilian. Anyone suspected of having taken part in
hostilities and deprived of his liberty for this reason will have the
benefit of the provisions laid down in Articles 4
' (Fundamental
guarantees), ' 5
' (Persons whose liberty has been restricted), ' and
6
' (Penal prosecutions). ' (28)
' S.J. '
* (1) [(1) p.1448] See commentary Art. 51, Protocol I, supra, p. 613;
(2) [(2) p.1448] ICRC draft Arts. 24, 25 and 26; see also O.R. XV, pp. 319-321, CDDH/215/Rev.1;
(3) [(3) p.1448] See O.R. IV, pp. 72, 74 and 81, CDDH/427;
(4) [(4) p.1449] ' CE 1971, Report ', pp. 77-78, paras. 441-445;
(5) [(5) p.1449] (5) O.R. XIV, p. 14, CDDH/III/SR.2, para. 8;
(6) [(6) p.1449] On the other hand, in Protocol I conditions
of
attack and precautionary measures are dealt with in
specific rules which develop the general principle of
protection (see Arts. 48-58 of Protocol 1 and the
commentary thereon, supra, pp. 597-695);
(7) [(7) p.1450] This principle was formulated in Art. 22 of the Hague Regulations Respecting the Laws and Customs of
War on Land and reaffirmed in the resolutions of the Red
Cross, particularly Resolution XXVIII of the XXth
International Conference, Vienna, 1965;
(8) [(8) p.1450] This principle was expressed in particular in Resolution XXVIII of the XXth International Conference of
the Red Cross and Resolution 2575 (XXV) of the United
Nations General Assembly;
(9) [(9) p.1450] The principle of proportionality is expressly set out in Art. 57, para. 2(b), of Protocol I, which reads
as follows: "an attack shall be cancelled or suspended if
it becomes apparent [...] that the attack may be expected
to cause incidental loss of civilian life, injury to
civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the
concrete and direct military advantage anticipated"; see
supra, p. 686. It should be noted that civilian objects do
not enjoy general protection under Protocol II. Only those
objects which must be protected as being essential for the
needs of the civilian population are taken into
consideration;
(10) [(10) p.1450] See O.R. XV, p. 329, CDDH/III/224;
(11) [(11) p.1450] For example, Art. 4, para. 2(b), (c) and d);
(12) [(12) p.1450] Art. 51, para. 1, of Protocol I: "To give effect to this protection, the following rules, which are
additional to other applicable rules of international law,
shall be observed in all circumstances"; see supra, p.
617;
(13) [(13) p.1450] This view also emerged from the discussions in Committee; see O.R. XIV, p. 15, CDDH/III/ SR.2, para.
13, for example;
(14) [(14) p.1451] See O.R. XV, p. 363, CDDH/III/275;
(15) [(15) p.1451] As regards military objectives, these are defined as follows in Art. 52, para. 2, of Protocol I:
objects which by their nature, location, purpose or use
make an effective contribution to military action, and
whose total or partial destruction, capture or
neutralization, in the circumstances ruling at the time,
offers a definite military advantage". See the commentary
on this provision, supra, p. 635;
(16) [(16) p.1451] Secondary effects are taken into consideration in the concept of "general protection
against the dangers arising from military operations";
see, supra, p. 1449;
(17) [(17) p.1451] See Resolution 2444 (XXIII), para. 1(b), and Resolution 2675 (XXV), para. 4; see also ' Commentary
Drafts, ' p. 56 (Art. 26);
(18) [(18) p.1452] O.R. XV, p. 320, CDDH/215/Rev.1;
(19) [(19) p.1452] From the beginning of the work of the Conference it was agreed that the same meaning should be
given this term in both Protocols. See ' Commentary
Drafts, ' p. 157; this definition is based on Art. 3 of
the Draft Rules of 1956. See also, supra, p. 602;
(20) [(20) p.1452] It is important not to confuse the concept of attack in the sense of the Protocol, with that of
aggression; see ' Commentary Drafts ', pp. 54-55;
(21) [(21) p.1452] Humanitarian law applies without conditions of reciprocity. Cf. on this point, J. de Preux, "The
Geneva Conventions and Reciprocity", op. cit., pp. 25-29;
(22) [(22) p.1452] Art. 4, para. 2(b), (d) and (g): it was thought that "reprisals" were a precise legal concept
applicable only to situations of international armed
conflict. This problem was discussed at length during the
Conference. See commentary Art. 4, para. 2(b), for more
detailed discussion, supra, p. 1372, note 18, and p. 1374;
(23) [(23) p.1452] Art. 25 of the Protocol (Denunciation) and the commentary thereon, infra, p. 1501;
(24) [(24) p.1452] Rules Relating to Aerial Warfare and Rules Concerning the Use of Radio in Time of War, drawn up by
the Commission of Jurists which was given the task of
examining and reporting on the revision of the laws of
war, Article 22;
(25) [(25) p.1453] O.R. XIV, p. 65, CDDH/III/SR.8, para. 54;
(26) [(26) p.1453] Ibid., p. 14, CDDH/III/SR.2, para. 8;
(27) [(27) p.1453] O.R. XV, p. 330, CDDH/III/224;
(28) [(28) p.1453] See commentary Arts. 4, 5 and 6, supra, pp. 1367-1402;
GVALNWB2/ICRC
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