CHAPTER 1

        GENERAL INTRODUCTION

• BACKGROUND TO THE STUDY

Civilian suffering in war is not a new phenomenon. Throughout history, civilians have been targeted by belligerents, who often have made no distinction between combatants and civilians when fighting their enemies. Massacres, rape, torture, starvation, enslavement, forced conscription and displacement have all been common features of war at different times and in different places. Sometimes civilian suffering has been an unintended result of the fighting, and at other times it has been inflicted as a deliberate military strategy.^[1]

Civilians are affected in many ways by war, whether as the direct victims of death, injury, rape and forcible displacement or as indirect victims through conflict-induced increases in disease, hunger and malnutrition. The impact and experience of war will not be the same for all civilians, but can vary enormously among the members of different groups, e.g. depending on whether they are men or women, young or old, or living in an urban or a rural area. Not least, it will depend on the conduct of the combatants and the extent to which they endeavor to target or protect civilians during hostilities. 

While wars have invariably been accompanied by suffering for civilians and soldiers alike, there have almost always been certain limits on warfare – i.e. norms establishing the types of actions that are acceptable or unacceptable in war – including notions of who should and should not be targeted. Even if these norms have varied greatly, when certain groups have been spared from attack, they have often included those considered to be particularly “innocent”, “vulnerable” or “weak”, such as children, women and the elderly. As the idea of “limited war” and non-combatant immunity developed, in particular in medieval Europe, notions of civilian protection gradually became more sophisticated. However, it was only after the genocide and widespread atrocities against civilians committed during the Second World War and the armed conflicts in the 1950s to the 1970s that a specific legal framework was established for the protection of civilians.

Today, all parties to armed conflicts are bound by the rules of international humanitarian law (IHL) – also known as the law of armed conflict – to take a broad range of measures to protect civilians from the effects f military operations. The 1949 Geneva Conventions and the 1977 Additional Protocols constitute the core of the legal framework regulating behavior in war, including for the protection of civilians and other persons that do not take part in hostilities (e.g. wounded, sick and captured combatants). Although significantly less detailed than the rules applicable to international armed conflicts, Common Article 3 to the Geneva Conventions and Additional Protocol II^[2] establish rules for non-international – i.e. internal – armed conflicts, imposing obligations on states and non-state armed groups alike. Moreover, most of the fundamental rules pertaining to the protection of civilians are considered to be customary humanitarian law in both international and internal armed conflicts, and binding on all states, whether signatories or not to the relevant treaty, as well as non-state armed groups.

IHL has proven to be an adaptable legal framework with additional rules being adopted in response to new developments. A case in point is the adoption of the first two Additional Protocols in 1977, partly in response to the humanitarian concerns arising from internal armed conflicts and wars of national liberation. The treaties prohibiting anti-personnel mines and cluster munitions are more recent examples.

As the nature of warfare continues to evolve, new protection needs may arise. A recent International Committee of the Red Cross (ICRC) study identified several specific gaps or weaknesses in the existing legal framework, particularly as regards no international armed conflicts, which is the dominant form of conflict today.^[3] Due to the current prevalence of internal armed conflicts, the interaction between IHL and international human rights law is also becoming a matter of increased importance and debate.^[4] The latter protects the individual in all situations, although governments may derogate from some provisions in public emergencies, including during an armed conflict.

The 1949 Geneva Conventions and 1977 Additional Protocol I thereto stipulate that the parties to an international armed conflict must undertake to respect and to ensure respect for those treaties. Each party is therefore obliged to do what is necessary to ensure that all authorities and persons under its control comply with the rules of international humanitarian law. The enforcement can include a wide variety of measures, both preventive and repressive, to ensure observance of that law. While this article focuses on the legal measures, other non-legal steps to create an environment conducive to compliance with minimal rules, even during the worst situations, are absolutely essential to give the law a chance to be respected.

On a more practical level, the parties to an armed conflict must issue orders and instructions to ensure that these rules are obeyed and must supervise their implementation.[1] Military commanders in particular have a great responsibility in this regard.[2] However, in the final analysis each and every soldier and individual involved in the conflict must observe the rules of humanitarian law.[3]

The particular feature[4] of international humanitarian law governing noninternational conflicts is that it is addressed not only to the states party to those treaties, but more broadly to the ‘Parties to the conflict’, in the words of Common Article 3,[5] or, according to Additional Protocol II, to ‘dissident armed forces or other organized armed groups …,[6] but without conferring any legal status on them.[7] Common Article 3 even governs situations[8] in which state structures have totally collapsed,[9] for a conflict of this type can take place without the state itself being involved. Each party to the conflict must respect and ensure respect for international humanitarian law by its armed forces and by other persons or groups acting de facto on its instructions or under its control. As in international conflicts, the rules on non-international conflicts are ultimately destined for all persons taking direct part in the hostilities[10] and oblige them to conduct themselves in a particular manner.[11]