Loss of Civilian Protections Under the Fourth Genera Convention and Protocol I

• Author: Lieutenant Colonel Robert K. Gehnng, USMC
• Pages: 02

I s gmieral, ci~.117an8 in occupied territmy are protected

bg intwvattorial lar agaznst arbitrary action by the oe-ciipying forces This protection LS prouided iri part by the Gmera Conventton Relatrve to the Proteettoii of Cmiizan Persons Time of War, doted Asgust 19, 1949, also called the Fazcrth Conwntion. The neic Protocol I of 1977 icoxld expand this protection

Hoireuer, tnternntional low also recognizes three sets of circumstances ander u,kzck civilians may ,foorfeit their protected status. Hostile activity by cis,ilzans during combat may lead to loss ofproteetior! So also may non-combat oetiimity of ciciiians which is prejudicial to the natiorial OF military seeerzty of the enemy oeeupaing

-The opinions and ~ ~ n t l ~ ~ m n i expressed I" this article m e those af the author and

do not nece93811li represent the i.ieu.8 of The Judge Adroeate General J School. the Unired States llarine Carps, rhe Department of rhe Nari, the Depsrrmenr of the Army, or any orher gavernmenral agency.

This article sill appear a180 in the Rerue de Droit Penal liliiaire et de Droit de Is Guerre, which 18 B publication of the International Saeiery of Milltar) Law and the La* of War. xith offices at rhe Palais de Justice, Bruisels. Belgium. **Station Judge Advocate, Marine Carpi A n Station. Iwkuni, Japan. B.A.. 1961, Harvard Univer9ity. J.D. and M 1.A , 1955, Columbia Univeriify. LL M.. 1975,Georre Waehmrtun L'nivemitv. Member of the B m of New Yark. the United stat& Court ofhilitnry Appeils, and the United States Supreme Court

Colanel Gehring 18 the author of Legal Rairs Affecting .Wilitory L'sea dl The anme zrtiele also won for Calanel Gehring the Nav) Judge Advocates U'ntmg Award For 1971. pre-sented by Lhe Naiy League of the United States

USS

Though Samuel specifically included noncombatants in his sangui-nary advice to Saul, today's laws of armed conflict authorize deliberate destruction only of combatants and militaq objectives. Lauful combatants, principally members of the armed farces of a party to the conflict, mal- participate directly in hastdines' and are. in

turn, lawful targets for the enemy's combatants. Koncombatantz, of whom the civilian populatmn Is b> far the largest group, are pro- "E

d

The Diploms11e Co8,Eerence produced f i o "Piotaco1.r lddlrlonsl to llle Ge-eia

Rela,ln~ to a110 called ProConientions of Augu?: 12 1948 ' :he first eiter1 abo\e. aid a secondthe Proteelion ai I m m r oi 6on-In~ernsfionsl Armed Conflicts

tected against direct attack unrelated to a legitimate military objec-tire2 A noncombatant \\-ill, however, forfeit his protection if he participates in hostilities. Impotency is the price of immunity. Hostile acts by a noncombatant do not necessarily violate the law of armed conflict, but they do legally expose him to the armed force of the enem?

Hostile acts normally occur within active combat zones. They conscitute, however, but one situation ~n which protections afforded civilians under the law of armed conflict may be lost. Aetirities prejudicial to the national or military security of the enemy, when committed within its national territory or in territory occupied by it, i%dl also cause forfeiture of protections. Further, a civilian who has committed no hostile act8 nor engaged in any prejudicial activity

Tne 1919 Conremans are the Genera Con\enfion for the Amelmstion of the Condition of the Wounded ar.d Sick in Armed Forces in the Field. .hug 12, 1919.L1955l 3 U S T 3114 T I A 9 KO 3362 hereinaffer uteri as the Firit Conven-lion1 the Gereia Conrention far the Amelmatlan of the Condition of Wounded, Sick and Bhlpxrecked \Ieaberr of the Armed Force. at Sea, Aug 12. 1919, 110513 inafter cited as the Seeand Conisntm]. Treatment of Prirareri of War Aug 12. 3354 [hereinafter cited as the Third Con-elatlie to the Pmtertm of Cirilisr Per-19551 3 E s T 3515. r I.A s. N~ 3366

Damage suffered b) elr~llanr incidental to ~n attack 'pori a legitmate militar? objectire ma? laufulli be inflicted by me a!raemng pnuer so larg BJ the damage suffered IS not 0": of orooorlion In the mll>t8rv advantage lo be ealned from the

. _ I attack Protocol I. arc 5 f 2

MILITARY LAW' REVIEW [VOL. 90

may still he denied a right whose exercise would be prejudicial to the national interests or security of his enem1

While customary and conventional law clearly detail these three categories, their substance-the standards by which an act is denominated "hostile", an activity "prejudicial" or a national interest "threatened"-is not. Through examples draw fmm the Fourth Geneva Convention of 1949 and Protocol I of 1977, with oceasional references to other convention8 and to the customary law of armed conflict, thip article explores these categories to aid those charged with their interpretation and implementation.

First, the foundational policies of existing lav are set forth herein. Then we shall explore those provisions from the Fourth Convention and Protocol I dealing xith, in turn, hostile activity by civilians during combat, activity prejudicial ta national or military security, and depnration of rights to prevent or reduce potential harm. Under each heading we shall examine the scope of unprotected activiti, whether loss of rights is imposed on an individual basis or collectively, and rhe consequences of a loss of rights.

11. BASIC POLICIES

This 8ectmn briefly explores the foundation of the la\%- of armed conflict, the rules derived therefrom for the protection of civilians, the justification for depriving civilians of protection, and the definition of "cirilian."

1. FOCSDATIOS OF THE LAW OF ARMED COXFLICT

   Military necessity, humanity and chivalry are the traditional foundation for the law of armed conflict Those remnants of

   a hl MeDaueal d F Felie~ano. Lax and Mmmurn Korld Publie Order 521-22 and eira:ianr earhered at 622 I I

   [Editor's nore' Pielent day daetnnal analyhii in the Enitid Sfatea Arm? em-ploys different rermmologi. As taught ~n Isa-of-ssr inilrucrmn sf The Judge Ad-i'ocste General's School. Charloiieru~lle, Tqima. the foundation far the law af armed eonflier IS built from the triad of military neeesmf). pwpmtionailry. and the avoidance of unnecesiar) suffering The pnneiple of humanity is roughly eouiralent to the ~ i i n e i ~ l s ~ of ~ ~ ~ ~ o i t i o n s h f v and af the avoidance of Y O ~ ~ C ~ S I P I Y

   . . . .

   .;ffen.n

   [The principle of pmporfmnallfy 18 diicuaied, far example. LO the eanrext of repnsaln ~n Dep't of Army Pamphlet No. 27-161-2. lnfernafional Lau Bolume 11.

   chivalry still surviving in the modern iaw are largely subsumed in the other tm principles and need not coneern us ~eparately.~

   While humanity in war has often been denounced as a surrender to puerile sentimentality which actually lengthens mar and increases its horrors,s such criticism misconceives the modern for- 8f 66-61 (1962) The amount af force ueed I" effecting B reprisal must be proporiered Strict praportionaliry 16 not required, but anropartionate amount ai fame cannot be justified n stopping the setiona of the other belligerent. Id pnneiple that ''lose of life and damage to property

   incidental to attacks must not he out of pmpmfmn to the military adiantage to be game#' appears ai FM 21-10, ~upronote 2, para. 41, 81 19-10, a8 modiiied by Change 1 thereto. dated 16 July 1976. The mntexr of this discussion /Q the extent fa which defended and undefended places may be attacked, and IO which desrruetion of property or faeditlei 1% permissible aiter surrender of a defended place. Id

   [The principle of aroidanee oi unnecessary suffering le slm discussed in Dep'f af Army Pamphler So. 27-161-2. 8ap7a. at 39-46, in the context of me of xeapans of iariaus sorts. The term "unneeeirar) suffermg" 18 found I" Article 23e oi the Annex to Hague Convention IV (1907) (Hague Regulatmsl The phrase "aggrava-tion oi auffenng" is a180 used I" discussion ai the p'incipie, and is derived from the Deciarstion of Sf. Peteraburg (1868). Id st 40. A ahorf discuaaian of "unneeesaaryIWY~S,'' considered to be interchnngeable with "unnecessary suffering" in this conlexr. appears m FM 27-10. 8upm note 2. para. 34, 81 131*>I MleDoueal & F Felmana. sumo. note 3. at 622

   Chirirovs conduct. B persmal rather than a state deterrent. lost ins force rith the passing of the aristocratic officer and his replacement during the ~ianiitiun period by the buiinesiman in uniform Far B brief period ~n World War I n appeared that ehivslrauc eonduet would form a basin far a ne* lax, oi air warfare Horwer. such ex~ecfiuni *ere not fulfiliedDep't of Army Pam So. 27-161-2, lnternslional Laa, Yo1 11, 81 16 (1962).

   General /on Hindenburg declared "One cannot make war in a sentimental lash. ID" The more pitiless the conduct of the war, the more humane It IS ~n renlny ior ~t ill run if8 mume dl the 8ooner " Quoted in 3 Adler, Target8 ~n War. The Vietnam War and Intsrnafionsl Lmv 281. 293 (Faik ed. 1972).

   More recently, Che Gverara adrised that "circumitmceb and the will to ~lnx~!! airen ablrge him [the perrillal t o forget romantic and sportsmanlike concepts. Guerars. Guerrilla Warfare 8 (19611.

   One of rhe most eloquent replies to thin vmw w . 8 oifered by historian and publi-cist Charles Francis Adami in ca address honoring the memory of Robert E LeeAdamr. promoted t o general in the Union forces I" the lasl efages of the Civil War. deiiiered this address I" 1903

   mulatian of humanity, which prohibit8 only that depee or kind of violence "not actually necessary for the purpose of aar 'Ib Attention is focused on its correlative, military necessity, to determine the degree and kind of force permitted belligerents in warfare. The humanity principle is not sentimental nor does it lack substantive m-tent merela because It is not applied in isolation. It stands with military necessity as the foundation for the law of armed conflict. Neither 1s designed to stand alone. Rather, the txo are h o w n intoa seamless web: one prohibits what what the other does not permit.

   Military...