Who Are Protected under the International Humanitarian Law

In the same case, the Appeals Chamber (20 February 2001, § 73) concluded that already in 1949 the legal link of nationality was not considered decisive and took into account special cases. The nationality requirement set out in article 4 of the Fourth Geneva Convention should therefore be established within the framework of the object and purpose of humanitarian law, which is “to ensure the greatest possible protection of civilians” (para. 73). Therefore, the application of the nationality condition should not be based solely on the legal and formal criteria set out in national law. ICTY jurisprudence has held that “protected persons” may include victims of the same nationality as the perpetrators of a crime, for example when such perpetrators act on behalf of a State that does not grant diplomatic protection to such victims or to whom victims do not owe loyalty. Necessity and proportionality are principles established in humanitarian law. According to IHL, a belligerent can only use the amount and type of force necessary to defeat the enemy. Furthermore, attacks on military objects must not result in loss of civilian life deemed excessive in relation to the direct military advantage anticipated. [42] Commanders must take all feasible precautions to avoid civilian casualties. [43] The ICRC also noted that the principle of proportionality is part of customary international law in international and non-international armed conflicts.

[44] International humanitarian law protects a wide range of people and property in armed conflict. The Geneva Conventions and their Additional Protocols protect the sick, wounded and shipwrecked not taking part in hostilities, prisoners of war and other detained persons, as well as civilians and civilian objects. The International Criminal Tribunals have considered the definitions of categories of persons protected by the four Geneva Conventions and their Additional Protocols. The aim was to ensure that these categories were compatible with the evolution and diversity of modern situations and forms of conflict, particularly with regard to types of ethnic conflict. In Celebici (16. November 1998), the ICTY Trial Chamber found that the Fourth Geneva Convention appears to limit the concept of protected persons to those who, at any time and in any manner in the event of conflict or occupation, are in the hands of a party to the conflict or an occupying Power of which they are not nationals (para. 236). However, the judges considered it necessary to interpret the law in such a way that humanitarian conventions could serve their protective objectives in order to maintain the relevance and effectiveness of the standards of the Geneva Conventions (para.

266). During the same period, the risk of attacks on humanitarian and medical personnel also increased. The principle of distinction protects the civilian population and civilian objects from the effects of military operations. It obliges parties to an armed conflict to distinguish at all times and in all circumstances between combatants and military targets, on the one hand, and civilians and civilian objects, on the other; And just to address the first one. It also provides that civilians lose this protection if they take a direct part in hostilities. [40] The ICRC also noted that the principle of distinction is reflected in state practice; It is therefore an established norm of customary international law in international and non-international armed conflicts. [41] The most important precursor to IHL is the current armistice agreement and regularization of war, signed and ratified in 1820 between the authorities of the government of Gran Colombia and the head of the expeditionary force of the Spanish Crown in the Venezuelan city of Santa Ana de Trujillo. This treaty was signed in the context of the conflict of independence and was the first of its kind in the West. Authorities having authority over protected persons must treat them in accordance with the rules and standards they have undertaken to uphold under the Conventions and their Additional Protocols. The Party in whose hands the protected persons are found shall be responsible for the treatment of such persons by their representatives, irrespective of any individual responsibility.

A central concept of international humanitarian law (IHL) is the principle of distinction. Both in situations of hostilities (traditional Hague law) and in protection rules (Geneva law), there are significant differences in the level of protection of civilians and persons taking part in hostilities. The Geneva Conventions establish specific rights for protected persons to protection and assistance in times of international or internal armed conflict. The denial of protected person status constitutes a serious violation of humanitarian law (CGIV Art. 29). It also protects humanitarian workers such as ICRC staff and staff of various Red Cross or Red Crescent societies. These organizations also benefit from the use of Red Cross, Red Crescent or Red Crystal emblems recognized by the Geneva Conventions. Prior to 1949, the Geneva Conventions protected wounded, sick, shipwrecked and captured combatants. The “Civil Convention” recognizes the changing nature of war and creates legal protection for anyone who does not belong to armed forces or armed groups. Protection also included civilian objects.

This protection was subsequently strengthened by the adoption of the Additional Protocols to the Geneva Convention in 1977. In non-international armed conflicts, armed forces are exposed to direct attack. However, prisoner-of-war status does not exist in the NIAC. Systematic attempts to limit the cruelty of war did not begin to develop until the 19th century.