Khóa luận tốt nghiệp: The protection of civilians in armed conflicts – Theory and the operation in practice

VIET NAM NATIONAL UNIVERSITYSCHOOL OF LAW

THE OPERATION IN PRACTICE

Instructor: Dr Dao Thi Thu Huong

Hanoi, 2022

TABLE OF RESEARCH’s MEMBERS

TABLE OF ABBREVIATION

IMT International Military Tribunal Charter

Protocol I, II ICRC, Additional Protocol (I) and (II) to the Geneva Convention 1977

2.1.2 ‘Civilians’ protection’ definition 8

2.2 Sources of the international law governing the protection of civilians in armed conflict 10

2.3 The provisions of the civilians protection under the IHL 12

2.3.1 The protection of civilians over the consequences of armed conflicts 12

2.3.2 The protection of the civilians in some of specific rights 14

2.3.3 The protection of some special subjects in the armed forces 19

2.3.3.1 The protection of women 19

2.3.3.2 The protection of children 20

2.3.3.3 The protection of the elderly, the disabled, the infirm 21

2.3.4 End of protection of civilians 21

PART III: ISSUES ON THE PROTECTION OF CIVILIAN IN ARMED CONFLICTS IN PRACTICE 24

3.1 The world does take practical actions in protecting civilians in armed conflicts 24

3.1.1 The United Nations Security Council takes action in Civilians’ Protection 24

3.1.1.1 The UNSC in building its own regulation for to civilians’ protection 24

3.1.1.2 Some aspects of the protection of civilians recognized in UNSC Resolutions 25

3.1.1.3 Protecting civilians in UN peacekeeping operations 28

3.1.2 ICRC in the protection of civilians in armed conflict 28

3.1.2.1 ICRC in humanitarian assistance activities 28

3.1.2.2 The ICRC in humanitarian protection activities 30

3.2 The protection of civilians in armed conflict in the “new practice”, also known as the current topical issues all over the world 31

3.2.1 The protection of civilians in armed conflicts in the context of COVID – 19 pandemic 31

3.2.1.1 An even more difficult condition for the protection of civilians 32

a In Afghanistan 32

b, In Gaza Strip 33

c Another conflict – zones affected by the COVID – 19 pandemic 34

3.2.2.2 The world facing with COVID – 19 and seeking for solutions in the better protection of civilians in conflict – zones 35

a About the international community 35

b About the local authorities of the conflict – zones 37

3.2.2 Issues concerning the current armed conflict between Ukraine and Russia 38

3.2.2.1 The dramatic situation of the conflict put an extremely strain onto civilians 39

3.2.2.2 The international community takes action in protecting civilians 40

PART IV: PROPOSE SOLUTIONS FOR IMPROVING EFFICIENCY IN THE PROTECTION OF CIVILIANS IN ARMED CONFLICTS 44

4.1 The shortcomings in exercising the mechanism of the civilians’ protection 44

4.1.1 The clear violation of the IHL in attacking the civilian objects 45

4.1.2 The number of civilians killed, wounded remains unsatisfactory 46

4.1.3 Another human suffering resulted from the violation of IHL in armed conflicts 46

4.2 Propose solutions for improving efficiency in the protection of civilians in armed conflicts 49PART V: VIET NAM WITH THE PROTECTION OF CIVILIANS IN ARMED CONFLICTS 53

5.1 Vietnam shows a frank point of view in the protection of civilians 53

5.2 Vietnam in making several efforts for the protection of civilians in armed conflict as a neutral but standing for justice party 54

PART VI: CONCLUSION 56

REFERENCES 57

ABSTRACT

War and peace are two opposite sides of the life of international law From the interests that these countries pursue, it is clear that the outbreak of a war will directly affect the civilians – the weakest and most vulnerable population Therefore, the protection of these people during war has always been a concern of the international community Moreover, the problem becomes more urgent when the Covid-19 pandemic breaks out in the world, bringing enormous challenges to even developed countries and leaving severe consequences for people This raises the question that when the most vulnerable people in wartime, civilians, their own lives have been severely affected by war and now, faced with the pandemic that has the potential to directly threaten their lives, what are the solutions to protect civilians’s legitimate rights and interests? Therefore, our team's scientific research will focus on clarifying everything from specific rules to the topical issues

KEYWORDS

# International humanitarian law, # Protection of civilians in armed conflict; # Covid-19

PART I: INTRODUCTION 1.1 Main issues

Whatever the circumstances, a peaceful world is always the desire of all mankind But it seems that the dream has not come true when conflicts still exist in many parts of the world Diversity in nature or scope occurs in many places, but it is easy to see that civilians always suffer the worst consequence in all armed conflicts: from falling into humanitarian disasters such as lack of stable shelter, insufficient food supply, no education, or no access to medical health care to being victims of genocide, torture, rape, forced labor, etc However, these difficulties are not the last challenges facing the vulnerable in wars

In addition, the end of 2019 was marked with the advent of the Coronavirus, which caused the COVID – 19 pandemic Only 100 days later this pandemic quickly affected the whole world deeply and at every aspect, which constituted a double challenge in exercising the mechanism of the civilians’ protection

We realized the urgency of the current problem and wanted to conduct research in the field of international humanitarian law and open concrete guidelines for the protection of civilians in several hot spots around the world and in the context of the COVID-19 pandemic Hopefully, the research will be valuable, not only now, but in the future, creating a better global emergency response scenario.

1.2 Research purpose

The purpose of this research is to explain aspects of the institution of protection of civilians in war, as provided by international humanitarian law, from the theoretical basis to its practical application In addition, the research article also explains specific legal concepts and characteristics, and notes the actual global situation it faces: the COVID – 19 pandemic Starting from the previous points, the article will carry out concrete solutions to direct a new perspective on the theme of the protection of civilians at war in the new context Through it, the group of students also highlighted Vietnam's role in contributing to the implementation and value of international humanitarian law in general, and in particular the institution for the protection of civilians during the war in the context of the epidemic

1.3 Research methods

To achieve the research objectives mentioned above, the student group research will use analytical methods to highlight aspects of the law, from the points of success and failure, through which they help explain the practical application of the laws Along with this, we write articles on how to summarize and evaluate practice in order to clarify issues and ultimately suggest solutions to improve the law

PART II: GENERAL THEORY ON THE INSTITUTION OF CIVILIANS’ PROTECTION IN ARMED CONFLICT

2.1 The general concepts of civilian and civilians’ protection

Having a look into the reality of every war from the distant past up until present, It has always been the civilians – the most innocent people who suffered from the worst damages In light of that, International humanitarian law (IHL) is a set of rules that seek for humanitarian reasons to limit the effects of armed conflict on every individual who are not from the armed forces or the warring factions In the other words, Its mission is to protect the vulnerable who are not involved with the wars but always, in fact, bear the worst losses

such as poverty, disease or every direct threat to their lives

2.1.1 ‘Civilian’ definition

According to Art 50 of the Protocol I, in supplementing the Geneva Convention, “A civilian is any person who does not belong to any of the categories of people considered prisoners of wars and arm forces" Likewise, in the case of 2000 Blaskic, the International Criminal Tribunal for the former Yugoslavia pointed out that: "Civilians are people who are not, or no longer, members of the armed forces"1

The concept of the armed forces was first stipulated in the Geneva Convention III and then expanded in the Protocol I Therefore, in relation to such concept, a civilian is any individual who is not a member of any of the following groups (Art 43(1), Protocol I and Art 4 (1), (2), (3), (6), The Third Convention)

1 ICTY, Blaskic case, Judgement (p.751)

(i) Armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party

(ii) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces

(iii) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements

(iv) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power

(v) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war

Besides, from the provision of the Geneva IV, civilian is directly defined as:

(i) The foreigners in the territory of the parties to the armed conflict; (ii) Population in occupied territories;

(iii) Internees put under internment;

(iv) Medical and religious personnel who are not parts of the armed forces and civil defense units

2.1.2 ‘Civilians’ protection’ definition

The protection of civilians is exercised both in international and non-international armed conflicts, even when a warring party does not recognize the state of war In addition, the international humanitarian law concerning civilians in armed conflicts must be applied on the basis of the principle of non-discrimination on skin colour, ethnicity, religion or

political opinion,…and in order to limit the terrible effects of war on civilians, especially children

In any of international armed conflicts, It can be classified as two types of circumstances when the protection of civilians should be automatically performed:

First, It is any danger or threat from the military activities that, in general saying,

civilians should be protected over This principle rooted from the concept of civilians, who are defined as all non-combatants and must not be considered targets of attack

An exception to the rule is the leveé en masse, whereby the inhabitants of a country

which has not yet been occupied, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having time to form themselves into an armed force Such persons are considered combatants if they carry arms openly and respect the laws and customs of war As the ICTY Appeal Chamber have also stated, in the case of Martic, that those who participated in the fighting could not enjoy the status of civilians2, the victims, hence, do not confer civilian status, notwithstanding the fact that they were not armed or in combat at the time of the crime This is a long-standing rule of customary international humanitarian law already recognised in the Lieber Code, the Brussels Declaration and is codified in the Hague Regulations and the III Geneva3

Second, the civilians’ protection is performed under the IHL for those who are occupied

or under internment by a warring party, if only they are not citizens of the hostile state or of the hostile state's ally (unless the two countries have no normal diplomatic relations) or they are not a residents from neutral countries

In a nutshell, civilians are protected by the IHL whenever they are no longer under the protection of their own countries, those are at war or have no diplomatic relations with those holding them captive with the only purpose is to protect civilians from arbitrary, illegal actions by the warring party4

2 ICTY Appeal Chamber, Milan Martic case, Judgement of 8th October 2008, p.99

3 ICRC (2005), Jean-Marie Henckaerts and Louise Doswald-Beck With contributions by Carolin Alvermann, Knut

Domann and Baptiste Rolle, Customary International humanitarian law, Volume I – Rules, p.18

4 ICRC (2015), IHL – Answers to your Questions, p.27

2.2 Sources of the international law governing the protection of civilians in armed conflict

Some of the main sources of law governing this issue can be mentioned:

First of all, the 4 Geneva Conventions of 1949 and 2 Additional Protocols can be

considered as the constitution in governing the protection of victims in war

Indeed, It is the Geneva Convention IV of 12th August 1949 that especially adjust the protection of civilians in war The convention consists of 4 parts, 159 articles and 3 annexes The Convention recognizes the rights and obligations of civilians in armed conflict; the rights and responsibilities of the warring parties in the area of protecting civilians from the devastating consequences of armed conflicts And It is the World War II can be considered as a driving force for the development and adoption of this Convention5, since the number of casualties in this war is an alarming number

Even if the IV Convention is always assumed to be the first international treaty governing the protection of civilians in armed conflict, it was, in fact, another international treaty texted on this before Indeed, the meeting in 1934 of the 15th International Conference of the Red Cross in Tokyo had adopted the text of an international convention on the protection of civilians of enemy nationality in the territory of a warring party or held by a warring party However, there was no follow-up to this text as the states refused to convene a diplomatic conference and as a result the provisions of this draft were never came into force, even during the World War II However, it can be asserted that this introduction for the first provisions on the civilians’ protection of has made up an important step forward in raising awareness in the protection of those who are affected the most by the war - civilians

In addition, accompanying the IV Convention were the two protocols adopted in June 1977 Especifically, the Protocol I deals with the protection of civilians in those international armed conflicts, while the Protocol II deals with non-international issues The national liberation movements themselves promoted the adoptions of these two protocols

5 ICRC (2015), IHL – Ansswer to your Questions, p.23

In simpler terms, the circumstances of the significant increase in wars and civil wars during the Cold war made it a real need for the unification in the international rules that govern this issue Besides, there was also no significant progress made since the Lahaye Conventions in 1907 for governing the methods and means of waging war

Secondly, in addition to the source of the international treaties, another important

source should be international customary law Those are general codes of conduct in international relations, which are generally recognized by the subjects of international law and have become law In 1995, the International Committee of the Red Cross conducted a detailed survey on the customary rules of international humanitarian law and was published in 2005 This study is the result of an update of such survey and divided into two parts:

(i) The section of rules deals with the existing rules of customs in the IHL This is a summary for a list of rules that have been implemented in various languages (ii) The section of practices includes the practices that back up the rules above The

content of this section is regularly updated by ICRC in cooperation with the national Red Cross and Red Crescent Societies around the world

In summary, the international custom law shows the respect of states as well as the long-standing concern about the issues of protecting civilians in war This source plays an important role in demonstrating the urgency and core goal of protecting human rights

Thirdly, the Statutes of the International Criminal Court and documents on the

elements of international crime are also considered to be an extremely important source These documents can be mentioned from a number of courts such as: Statute of the International Criminal Court for the former Yugoslavia (ICTY), Statute of the International Criminal Court for Rwanda (ICTR), and the Rome Statute of the Criminal Court International (ICC), etc.These statutes document actions deemed to be against civilians within the jurisdiction of the Court

Fourthly, the supplementary sources, especially case precedents, judgments of

international jurisdictions, resolutions of international organizations… also play an important role in the practice of adjudicating cases

Finally, It would be remiss if the “Martens Clause” is not mentioned as it particularly

applicable whenever the behavior of states is not governed by the IHL The clause states that "Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanitarian and the requirements of the public conscience"6

In conclusion, with the sources indicated, it is only a premise to take it deeper in exploring the fundamental institution of the protection of civilians in war in the next part of this report

2.3 The provisions of the civilians protection under the IHL

2.3.1 The protection of civilians over the consequences of armed conflicts

Firstly, both in international or non – international armed conflicts, “Acts or threats

of violence the primary purpose of which is to spread terror among the civilian population are prohibited” (Art 51.2 – Protocol I, Art.13.2 – Protocol II, Rule 2 –

Customary IHL) and no reservation has been made to this provision7 Moreover, this prohibition of acts or threats of violence aimed at terrorising the civilian population is also set forth in a large number of military manuals8 Indeed, the prohibited behaviours include indiscriminate and widespread shelling, civil areas bombardment, assault, rape, abuse and torture of women and children, mass murder, deliberate attacks on civilian targets, etc

Secondly, “Indiscriminate attacks are prohibited” (Article 51.4, Protocol I; Chapter

3, including Rule 11, 12, 13 – Customary IHL) Indiscriminate attack are understood as: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited 6 The preamble, The 1899 Hague Convention (II) with respect to the Laws and Customs of War on land 7 ICRC (2005), Jean-Marie Henckaerts and Louise Doswald-Beck With contributions by Carolin Alvermann,

Knut Domann and Baptiste Rolle, Customary International humanitarian law, Volume I – Rules, ibid., p.8

8 See, e.g., the military manuals of Australia (2006, §§ 5.21 – 5.35), Belgium(1983, p.31), Benin (1995, p.12), Cameroon (2006, p.60, § 252), Canada (2001, § 423), Colombia (1995, p.30), Croatia (1991, p.40), etc

as required by the Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction For example, the ICTY when considering the legality of the use of cluster munitions, claimed that indiscriminate attacks involved means or methods of war that directed at a particular military objective is a violation of the provisions of international law

For non – international armed conflicts, though this rule was dropped out of the Protocol II due to a package aimed at the adoption of a simplified text9, it still makes sense since it is included by interference within the prohibition against making the civilian population the object of attack contained in Art 13.2

Thirdly, establish shelters to protect civilians in case of illness or injury (Art 15 –

The IV Convention; Rule 35, Rule 110 in addition – Customary IHL) Any Party to the

conflict may, either direct or through a neutral State or some humanitarian organization, propose to the adverse Party to establish, in the regions where fighting is taking place, neutralized zones intended to shelter from the effects of war the following persons, without distinction: civilian persons who take no part in hostilities, and who, while they reside in

the zones, perform no work of a military character These sites and areas for those purposes

are respected and prohibited from being attack targets

In addition, Art 21 and Art 22, the Geneva IV also mention escort vehicles, hospital trains, special ships and aircrafts (with agreed-upon regulations on altitude, time, and route), used for transport sick and injured civilians, are protected and assault is strictly

prohibited

Fourthly, about the humanitarian assistance to civilians in armed conflict

In cases of need for food, medical care, clothing, means of shelter, etc or other items necessary for the survival of civilians, items necessary for religious worship, the warring parties are not allowed to give any reason for disallowing or to set conditions for allowing states or impartial humanitarian organizations such as the ICRC with humanitarian aid

9 See the original clause, Draft Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to the adoption of the Additional Protocols, Article 26.3

programs providing food, medical supplies, clothing; and must also wholeheartedly cooperate with such countries and humanitarian organizations (Art 59 – the Geneva IV, Art 69 – Protocol I) All aid shipments will be free to move to conflict territories, even blocked areas, and shall not under any circumstances be declared contraband or seized; these consignments will be protected from attack or confiscation (Art 59 Geneva IV)

Fifthly, civilian objects are protected against attack Since the civilian objects are

not directly defined in any documents under the IHL, they are mainly defined through State practices like civilian areas, towns, cities, villages, residential areas, dwellings, buildings and houses and schools; civilian means of transportation; hospitals, medical establishments and medical units; historic monuments, places of worship and cultural property; and the natural environment10 Since then, any of these that are considered civilian objects shall

not become attacked objectives (Art 52 – Protocol I; Rule 9, 10 – Customary IHL), alleged attacks against such objects have generally been condemned

Art 52.3 also requires a presumption of civilian characters as: In case of doubt whether an object which is normally dedicated to civilian purposes, is being used to make an effective contribution to military action, it shall be presumed not to be so used That means, in case of doubt, a careful assessment has to be made under the conditions and restraints governing a particular situation as to whether there are sufficient indications to warrant an attack for the maximum limitation of any irresponsible behaviors

2.3.2 The protection of the civilians in some of specific rights

In general, every act that violates any of these specific rights of civilians are all considered as grave breaches under the provisions of the IHL11 It can be said that this is a pretty complete mechanism of protecting civilians in armed conflicts

10 ICRC (2005), Jean-Marie Henckaerts and Louise Doswald-Beck With contributions by Carolin Alvermann,

Knut Domann and Baptiste Rolle, Customary International humanitarian law, Volume I – Rules, p.34

11 Art 147, The IV Geneva Convention: Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present

Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing

great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving

Firstly, the civilians are protected in the right to health and life under the provisions

of the IHL, which is considered as the fundamental guarantee, such as: murder crime; torture and cruel, inhuman or degrading treatment; corporal punishment; mutilation and medical, scientific or biological experiments; any forms of sexual violence

For the crime’s considered a direct threat to a civilian’s life – the murder crime, all four Geneva Conventions list “wilful killing” of civilians as a grave breach12 The prohibition of murder is also recognized as a fundamental guarantee by the Protocols I (Art 75.2.a)

and II (Art.4.2.a), Rule 89 – Customary IHL This prohibition is non derogable and

therefore applicable at all times Indeed, in the statements before the International Court of Justice in the Nuclear Weapons case and Nuclear Weapons (WHO) case, several States which were not at the time party to the main human rights treaties still stressed the

elementary and non derogable character of the right to life13

In addition, all the crimes being threats to civilian’s health are strictly forbidden under the provision of the IHL: torture and corporal punishment; mutilation and medical, scientific or biological experiments; any forms of sexual violence (Art 32 – the IV Convention; Art 75 – the Protocol I; Art 4 – the Protocol II, Rule 90, 91, 92, 93 – Customary IHL)

Secondly, the unlawful deportation and transfer of civilians from the occupied

territories is prohibited pursuant Art 49 – the Geneva IV Forced transfer of

individuals or populations of civilians or the deportation of civilians from an occupied territory to another territory (occupying party or any other country occupied or not) is

a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out

unlawfully and wantonly

12 The I Convention, Article 50; the II Convention, Art 51; the III Convention, Article 130; the IV Convention, Art 147

13 See, e.g., Indonesia, Oral pleadings before the ICJ, Nuclear Weapons case, 3 November 1995, Verbatim Record CR 95/25, § 51; Israel, Statement before the Sixth Committee of the UN General Assembly, UN Doc A/C.6/ SR.1453, 4 December 1973, p.316, § 62; Malaysia, Written statement submitted to the ICJ, Nuclear Weapons case, 19 June 1995, p.14; Mexico, Written statement submitted to the ICJ, Nuclear Weapons (WHO) case, 9 June 1994, p.8; Nauru, Written statement submitted to the ICJ, Nuclear Weapons case, 15 June 1995, p 21

strictly prohibited Along with that, the Occupying party's act of bringing its own civilians into the occupied area is also prohibited

Nevertheless, the only exception for this rule is the evacuation taken by the Occupying Power in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated, and for the reason of the security of the population or imperative military Such evacuations shall be informed to the Protecting Power as soon as they have taken place and people thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased

Thirdly, it is forbidden of force labor and force civilians to serve in the armed

forces of the opposition (Art 40 – the Geneva IV, Rule 95 – Customary IHL)

The civilians who are foreigners in conflict zones can only be forced to work in the same circumstances as the citizens of such parties to the conflict If civilians are foreigners who are citizens of the opposing party, they can only be forced to do jobs that are crucial for food, clothing, transportation, human health and are not related to military activities

In addition, according to Art 95 Geneva IV, in occupied areas, civilians may not be forced to work unless they are over the age of 18 and perform only necessary work for public services or for food, shelter, clothing, transportation, and health of the population in the occupied territory With respect to civilians being held as prisoners of war, the detaining party may not use them as laborers, unless they so desire Prohibition of forced labor and inhumane work, degrading the value of detainees

Besides, the Convention also prohibits parties from forcing civilians to serve in their armed forces or in allied forces; as well as, no pressure or propaganda which aims at securing voluntary enlistment is permitted (Art 51) In the Wagner case of 1946, the Permanent Military Court at Strasbourg, France ruled that the provision of compulsory military service to Alsatian civilians was a war crime, a serious violation of the International humanitarian law14

14 France, Permanent Military Tribunal at Strasbourg, Wagner case, Judgement, 3 May 1946

Furthermore, another form that can be considered an extremely violation to the IHL in laboring and to the humanity is the slavery Though prohibition of the slavery is not actually spelled out in the Geneva Conventions and only stated in the Protocol II (for non – international armed conflict)15, but through the scope of the customary law, it is undisputedly a terrible crime16 Indeed, “Enslavement” was considered a crime against humanity in the Charters of the International Military Tribunals at Nuremberg and Tokyo17 “Enslavement” is also listed as a crime against humanity under the Statutes of the ICC, of the ICTR, and the CTY18 The slavery, consists of slave trade and even sexual slavery, thereby, is undisputedly a forbidden crime

Fourthly, ensuring essential living conditions for civilians

Within the area of the occupied territories, Art 55, 56 – the Geneva IV requires that, to the fullest extent of the means available to it, the Occupying Power has the duty of ensuring every essential living conditions for the population, such as: food, medical supplies, hospital establishment and services, public health and hygiene, etc It should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate

Within the areas of interment, the IV Convention require the Detaining Power to take all necessary and possible measures to ensure that protected persons shall, from the outset of their internment, be accommodated in buildings or quarters which afford every possible safeguard as regards hygiene and health, and provide efficient protection against the rigours of the climate and the effects of the war (Art 85) In addition, the Detaining party must provide internees with enough drinking water and daily food in sufficient quantity, quality, and variety to keep internees in a good state of health and prevent the development of nutritional deficiencies (Art 89)

15 The Protocol II, Art.4.2.f, the prohibition of “slavery and the slave trade in all their forms” a fundamental guarantee for civilians

16 ICRC, Customary IHL, Rule 94, Slavery and the slave trade in all their forms are prohibited

17 IMT Charter (Nuremberg), Art 6; IMT Charter (Tokyo), Art.5.c

18 CTY Statute, Art.5.c; ICTR Statute, Art.3.c; ICC Statute, Art.7.1.c

Fifthly, ensuring the right to a fair trial of civilians The deprivation of civilians of

the rights to a fair and regular trial as recognized in the Covenant is a grave breach of the IV Convention and the Protocol I19 This is also listed as a war crime in the Statutes of the International Criminal Court, of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone20

In 1994, in a Memorandum on Respect for International Humanitarian Law in Angola, the ICRC stated, for civilians, that enforcement and conviction without a fair trial are prohibited21 Then, also in 1994, in a Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Operation Turquoise in the Great Lakes region, the ICRC continued to emphasize on prohibiting of “the passing of sentences without a fair trial in particular”22.

To go into details, the right to a fair trial of civilians is mentioned through a number of contents such as: Trial by an independent, impartial and established court in accordance with the law (Art 66 – Geneva IV, Art 71.1 – Protocol I); right to public proceeding (Art 105 – Geneva III, Art 74 – Geneva IV, Art 75.4.i – Protocol I), rights and means to a defense (Art 72, 123 – Geneva IV), etc

Sixthly, a number of other rights of civilians are also under the protection of the IHL, including: Guaranteeing of civilian’s personal property (Art 98 – the Geneva IV);

ensure the right to leave the conflict territory of civilians who are foreigners (Art 35, 37, 42 43 – The Geneva IV); ensure the freedom of civilians held as prisoners of war after the end of the conflict (Art.135 – the Geneva IV), etc

19 Fourth Geneva Convention, Article 147; the Additional Protocol I, Article 85.4.e

20 ICC Statute, Art 8.2.a and 8.c; ICTY Statute, Art.2.f; ICTR Statute, Art.4.g; Statute of the Special Court for Sierra Leone, Art.3.g

21 ICRC, Memorandum on Respect for International Humanitarian Law in Angola, 8th June 1994, IRRC, No.320, 1997, p.503

22ICRC, Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Opération

Turquoise, Geneva, 23 June 1994, § V, reprinted in Marco Sassòli and Antoine A Bouvier, How Does Law Protect

in War?, ICRC, Geneva, 1999, p.1991

2.3.3 The protection of some special subjects in the armed forces

Drawing from the reality of the vulnerability of women, children, the elderly, disabled, and infirm, the IV Geneva Convention and the Additional Protocol both provide provisions on the additional protections for these persons

2.3.3.1 The protection of women

It can’t be denied the fact that the IHL was built on the basis of the non – discrimination, which includes gender However, recognizing the specific needs and vulnerabilities of women, the IHL grants women a number of further specific protections and rights: “Women are objects of special respect” (Article 76.1 - Protocol I) To illustrate, the very nature of women’s vulnerability often lies more in the very nature of women and the fact that women are frequently the ones trying to maintain and provide for the everyday survival of themselves and their families in armed conflicts23 It is therefore that groups of women could be identified as being particularly vulnerable and in need of special assistance, including:

Firstly, special care for pregnant women, nursing mothers, mothers of small children This requirement is found throughout the Fourth Geneva Convention, as well as

in Additional Protocol I24 These provisions require special care for pregnant women and mothers of young children with regard to the provision of food, clothing, medical assistance, evacuation and transportation For example:

- Pregnant women and mothers of children under seven years shall benefit by any preferential treatment to the same extent as the nationals of the State concerned (Art 38 – the Geneva IV);

- In the area under occupation, the Occupying Power shall not hinder the application of any preferential measures in regard to food, medical care and protection against the effects of war, which may have been adopted prior to the occupation in favor of children under fifteen years, expectant mothers, and mothers of children under seven

23 Charlotte Lindsey, Women Facing War, ICRC, Geneva, 2001, p.29

24 See, Fourth Geneva Convention, Articles 16–18, 21–23, 38, 50, 89, 91 and 127; Additional Protocol I, Art.70.1 and Art.76.2

years (Art 50 – the Geneva IV) In areas under interment, expectant and nursing mothers and children under fifteen years of age, shall be given additional food, in proportion to their physiological needs (Art 89 – the Geneva IV);

- Especially, the maximum priority is given to pregnant women and nursing mothers in case of arrest, detention or detention for reasons related to armed conflict (Art 76.2 – the Protocol II); death penalty may not be executive on pregnant and nursing women (Art 76.3 – the Protocol I and Art.6.4 – the Protocol II), etc

Secondly, protecting women from rape and other types of sexual violence since “in

practice women are much more affected by sexual violence during armed conflicts”25 Women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault (Art 27 – the IV Convention; Art 76.1 – the Protocol I and Art.4.2 – the Protocol II)

2.3.3.2 The protection of children

Children have always been “the object of special respect”26 over the effect of armed conflicts In a resolution on children in armed conflicts, adopted in 1999, the UN Security Council called upon parties to armed conflicts “to undertake such feasible measures during armed conflicts to minimize the harm suffered by children”27 The requirement of special protection for children can be found throughout the Fourth Geneva Convention and in Additional Protocol I28 These articles relate to the provision of food, clothing and tonics, care of children who are orphaned or separated from their families, treatment during deprivation of liberty and the distribution of relief consignments For example:

- Allowing the free transportation of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen (Art 23 – the Geneva IV) Taking measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that

25 ICRC (2005), Jean-Marie Henckaerts and Louise Doswald-Beck With contributions by Carolin Alvermann, Knut

Domann and Baptiste Rolle, Customary International humanitarian law, Volume I – Rules, p.477

26 The Protocol I, Art.77.1

27 UN Security Council, Res 1261, 25th August 1999

28 The IV Geneva Convention, Articles 23–24, 38, 50, 76 and 89; the Protocol I, Art.77

their maintenance, the exercise of their religion and their education are facilitated in all circumstances (Art 24 – the Geneva IV)

- Not executing death penalty children who were under eighteen years of age at the time of the offence (Art 68 – the IV Convention; Art.77.5 – the Protocol I; Art.6.4 – the Protocol II)

- Prohibiting on recruitment of children who have not attained the age of 15 to take part in hostilities or to be into armed forces (Art.77.2 – The Protocol I; Art.4.3.c – the Protocol II)

2.3.3.3 The protection of the elderly, the disabled, the infirm

The recognition of the special respect and protection due to the elderly is contained in various provisions of the IV Conventions relating to their evacuation and the treatment of persons deprived of their liberty29 The recognition of the special respect and protection due to the disabled and infirm is contained in various provisions of IV Geneva Conventions relating to their evacuation and the treatment of persons deprived of their liberty30

2.3.4 End of protection of civilians

The civilians shall enjoy the protection against direct attack “unless and for such time as they take a direct part in hostilities”31

First, the loss of civilians’ protection against direct attack can be understood that in the event of illness, injury, such persons shall only be entitled to the same treatment as ordinary sick or injured persons without the same treatment as civilians, and at the same time cannot enjoy the same protections in the event of being un occupation or internment as is accorded to civilian

Next, the interpretation of the phrase “take a direct part in hostilities” constitutes a difficult task for the operation of IHL in practice, since it would be impossible to determine with a sufficient degree of reliability whether civilians not currently preparing or executing

29 The IV Geneva Convention, Articles 17, 27, 85 and 119

30 The IV Geneva Convention, Articles 16–17, 21–22, 27, 85, 119 and 127

31 Treaty IHL: Art.53.3 – the Protocol I, Art.13.3 – the Protocol II; Customary IHL: Rule 6; Case law: e.g., ICTY,

Prosecutor v Blaskic, case no IT-95-14-A, Judgment of 29 July 2004

a hostile act have previously done so on a persistently recurrent basis and whether they have the continued intent to do so again Basing continuous loss of protection on such speculative criteria would inevitably result in erroneous or arbitrary attacks against civilians, thus undermining their protection which is at the heart of IHL32 Therefore, the ICRC provides a set of criteria constituting such “Direct participation in hostilities” for the restriction of any negligence in the interpretation

Indeed, pursuant to the ICRC, a specific act must meet the following cumulative criteria to constitute a direct participation in hostilities33:

(i) The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and;

(ii) there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and;

(iii) the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus)

In the Public Committee Against Torture v Government, the Israel Supreme Court has

listed a number of acts that are considered direct participation in hostilities, such as: collecting intelligence on the army, whether on issues regarding the hostilities or beyond those issues; transporting unlawful combatants to or from the place where the hostilities are taking place; operating weapons which unlawful combatants use, or supervises their operation, or providing service to them, be the distance from the battlefield as it may, etc Meanwhile, acts such as selling food or medicine to an unlawful combatant; aiding the unlawful combatants by general strategic analysis, and granting them logistical, general

32 ICRC, Report DPH 2008, pp 36-42

33 Nils Melzer, ICRC, Interpretive Guidance On The Notion Of Direct Participation In Hostilities Under International

Humanitarian Law, 2009, p.46

support, including monetary aid; or distributing propaganda supporting those unlawful combatants, etc., are not considered that directly involved in the conflict34

Finally, the phrase “unless and for such time” clarifies that such suspension of protection lasts exactly as long as the corresponding civilian engagement in direct participation in hostilities This necessarily entails that civilians lose and regain protection against direct attack in parallel with the intervals of their engagement in direct participation in hostilities (so-called “revolving door” of civilians’ protection)

As stated below, the behavior of individual civilians depends on a multitude of constantly changing circumstances and, thus, is very difficult to anticipate Also, the concept of direct participation in hostilities refers to specific hostile acts, IHL restores the civilian’s protection against direct attack each time his or her engagement in a hostile act ends35 Therefore, the mechanism of the “revolving door” of protection is necessary to protect the civilian population from erroneous or arbitrary attack and must be acceptable for the operating forces or groups as long as such participation occurs on a merely spontaneous, unorganized or sporadic basis

In summary, all these provisions below constitute a complete and sufficient mechanism in protecting the civilians in the armed conflict under international humanitarian law However, It isn’t enough for building an overview, the next part, hence, shall take a view into the practice of the operation of this mechanism

***

34 Supreme Court of Irasel, Public Committee Against Torture v Government, Judgement of 14th December 2006, para 35

35 ICRC, Commentary of 1987 on the Protocol I, Art.51, para 3: “It is only during such participation that a civilian

loses his immunity and becomes a legitimate target Once he ceases to participate, the civilian regains his right to the protection under this Section, i.e., against the effects of hostilities, and he may no longer be attacked”

PART III: ISSUES ON THE PROTECTION OF CIVILIAN IN ARMED CONFLICTS IN PRACTICE

3.1 The world does take practical actions in protecting civilians in armed conflicts

As stated below, the IHL has build a complete mechanism for protecting civilians in armed conflicts And It can be said that, the world does take action in applying such mechanism in practice for the better protection of civilians

3.1.1 The United Nations Security Council takes action in Civilians’ Protection

The Security Council is one of the main organs of the United Nations with the role of protecting and maintaining international peace and security according to Para.1, Art 24 of the United Nations Charter Also, pursuant to the legal basis in Chapter VI on "Pacific settlement of disputes", Chapter VII on "action with respect to threats to the peace, breaches of the peace, and acts of aggression" and Chapter VIII in recognition of the participation of regional agreements and bodies in the maintenance of international peace and security, in which the protection of civilians in armed conflict has been determined to become a part of international peacekeeping and security Since 1999, this issue has been included in the Security Council meetings to issue resolutions to put into practice

3.1.1.1 The UNSC in building its own regulation for to civilians’ protection

A meeting, on 12 February 1999, on the issue of civilians’ protection was open according to the request of the Secretary-General In the report of which proposed a recommendation for improving the physical and legal protection of civilians in situations of armed conflict.36

Having considered the report of the Secretary-General of 8 May 1999 submitted to the Security Council (duly submitted report, containing 40 lists of recommendations requiring increased respect for international law, ratification and revision of international legal instruments on the protection of civilians through peaceful action and even sanctions

36 UNSC (1999), “Statement By The President Of Security Council”, Report no.S/PRST/1999/6, para.12

regulations); and the first Resolution on the Protection of Civilians – Resolution No 1265 was adopted by the UNSC a week later

In such Resolution, the UNSC introduced for the first time the general concept of the protection of civilians Besides, the Council reaffirmed the prohibition of acts that intentionally target civilians and other civil objects in armed conflicts in accordance with international law It also specifically emphasized on international human rights law, humanitarian law and refugee law together with such Resolutions adopted

Up until the present day, such regulations on the protection of civilians continue to be developed by As a results, a total of 10 thematic Resolutions on the protection of civilians were passed37 and 13 presidential statements were adopted.38

Specifically, in the period of 1999-2009, the requirement to protect civilians was included in UN peacekeeping operations and the monitoring and reporting obligations for relevant personnel39, requested the Secretary-General for consulting with Member States to develop the detailed and comprehensive strategies for the responsibility to protect civilians such as threat assessment, crisis accountability mechanisms, and provide a benchmark against which to measure progress, etc

In the next phase (2009-2019) the Security Council targeted specific audiences including UN and humanitarian personnel (2014), journalists, media professionals, medical personnel in armed conflict (2005-2006), famine and conflict (2018), etc

3.1.1.2 Some aspects of the protection of civilians recognized in UNSC Resolutions

Firstly, ensuring the access to humanitarian assistance: The Security Council also

recognized the prohibition of unlawfully denying access to humanitarian assistance to civilians The obligations of the warring parties are to create favorable conditions for humanitarian personnel to have direct access to civilians and to ensure safety, security and

37 S/PES/1265 (1999), S/RES/1296 (2000), S/RES/1502 (2003), S/RES/1674 (2006), S/RES/1733 (2006), S/RES/1594 (2009), S/RES/2175 (2014), S/ RES/2222 (2015), S/RES/2186 (2016), S/RES/2417 (2018) far resolutions on PoC

38 S/PRST/1999/6, S/PRST/2002/6 S/PRST/2002A1, S/PRST/2003/27 S/PRST/2004/46, S/PRST/2005/25, S/PRST/2008/15, S/PRST/2009/1, S/ PRST/2010/25, S/PRST/2013/2, S/PRST/2014/3, S/PRST/2015/23, S/PRST/2018/18 for presidential statements an PoC

39 S/RES/1894 (2009) on Poc

freedom of movement for humanitarian work The Security Council also condemns the threat and use of force against humanitarian personnel and humanitarian property.40

The Security Council has repeatedly called for safe, timely, and unimpeded access to humanitarian assistance and the protection of humanitarian personnel and property in a number of Resolutions adopted such as: Res 2328 on Syria (2016), Res 2045 (2018) on Afghanistan, Res 2046 on South Sudan (2018)41 In Statement No 5 of 2018 on Yemen by the President of the Council, the UNSC expressed concern about the restrictions on access to commercial imports under humanitarian circumstances and called on the parties to facilitate such types of goods to be imported and delivered to the civilians42

The Council has also emphasized cross-border activities, which have called on the UN and another relief organizations to save millions of people in Syria through cross-border humanitarian aid: supporting food for an average of 1 million people a month since 2016, other necessities for 6 million people, medical support for 25 million people, and improved

clean water for more than 5 million people, etc

Secondly, ensuring the medical care in armed conflict: One of the important, urgent

and necessary foundations of the relief and protection of civilians in the context of armed conflict must include medical relief Res 2286 of 2016 provides a specific scope on this issue Indeed, the Security Council has requested the warring parties to respect and protect medical personnel, property and facilities It also calls on the parties to take effective measures to prevent threats to such objects and to conduct a full and fair investigation in the event of attacking In addition, the Security Council requires the Secretary-General to

report regularly on this progress

Thirdly, for the issue on children in armed conflicts: The Security Council adopted

12 resolutions on the issue of children in armed conflict43, which identified six serious

40 S/RES/1263 (1999), PP7, Section 7, 10, S/PES/1396 (2000),Section 8, 12, SPES/1302 (2003) PPs 5,7, Section 1,4, S/RES/1674 (2006), Section 5; S/RES/1504 (2009), Section 4,12,14 about PoC

41 S/RES/2328 (2016), Section 5 Syria; S/RES/2046 (2018), pp 16, Section 23 South Sudan

42 S/PRST/2018/5 paragraph 4 Yemen

43 140 S/RES/1314 (2000), S/RES/1379 (2001), S/RES/1460 (2003), S/RES/1539 (2004), S/RES/1612 (2005), S/RES/1882 (2009), S/RES/1998 (2011), S/RES/206 (2012), S/RES/2143 (2014), S/RES/2225 (2015), S/RES/2427 (2018) on Children and armed conflict

violations against children in armed conflicts, including: Murder and injury of children, recruitment and using of children in armed conflict, rape and other sexual violence against children, child abduction; attacks and threats from attacks on schools or hospitals; denying humanitarian access to children

A new mechanism was also established and first presented in the Secretary-General's annual report on "Children and Armed Conflict" in 2001 The report will make public the names of states and non-state entities that violate the IHL in recruiting or using children for armed conflict On the basis of which, the Security Council also requires the Secretary-General to report on the progress of ending such violation of international humanitarian law States on non – state entities that were publicly listed in the previous report shall propose specific solutions to ensure the application of the IHL in protecting children44

Fourthly, for the conflict related – sexual violence (CRSV), the Security Council

Resolution 1325 on “Women, peace and security” (WPS) addressed the issue of protection of women and girls from gender-based violence in conflict and the responsibilities of women and girls in conflict States in terminating immunity for such violations This resolution opens up an agenda for WPS and to date contains eight additional thematic resolutions specific to WPS45 Subsequently, Resolution 1820 defined CRSV for civilians, including women and girls, as a threat to international peace and security The Security Council has emphasized that rape and other forms of sexual violence may constitute a war crime, a crime against humanity or a genocide-related act Security Council considers it necessary to exclude sex offenders from amnesty provisions in the context of conflict resolution and calls on member states to prosecute those crimes to ensure that victims of sexual violence have legal protection46

44 UNSC, Res No S/RES/1379, Sec 16 on Children and armed conflict

45 UNSC, S/PES/1520 (2008), S/RES/1SSS (2009), S/RES/1SS9 (2009), S/RES/1960 (2010), S/RES/2106 (2013), S/RES/2122 (2013), S/RES/2242 (2015), S/RES/2467 (2019) on WPS/CRSV

46 UNSC, S/RES/1820 (2008) on WPS/ CRSV

3.1.1.3 Protecting civilians in UN peacekeeping operations

The United Nations peacekeeping force is one of a number of agencies established to perform the functions of the Security Council based on Article 29 of the United Nations Charter In 1999, the United Nations Mission in Sierra Leone (UNAMSIL) became the first Mission to protect civilians, whose mandate was to take "the actions necessary to attempt to protect the civilian population" against threats of physical violence, in the capacity and area to implement and fulfill the responsibilities of the government of Sierra Leone.”47

Among the currently active peacekeeping missions: United Nations Mission in the Central African Republic (MINUSCA), United Nations Mission in Mali (MINUSMA), United Nations Mission in the Democratic Republic of the Congo (MONUSCO), the United Nations Mission in Darfur (UNAMID), the United Nations Mission in South Sudan (UNMISS) has the most comprehensive civilians’ protection missions which are specifically noted in the section dedicated to protecting civilians48 The Missions' mission is to have an extensive comprehensive defense strategy, including early warning and response mechanisms, that prioritizes the protection of civilians

As for the protection of other vulnerable groups, 6 out of 8 Missions have been tasked with protecting children affected by armed conflict Three Missions including MINUSMA, MINUSCA, MONUSCO were identified with a cross – cutting task in protecting children For women, all 8 Missions have specific activities related to women Especially, with regard to women and sexual violence related to conflict, there are four Missions are identified with roles of gender as a cross-cutting task.49

3.1.2 ICRC in the protection of civilians in armed conflict

3.1.2.1 ICRC in humanitarian assistance activities

About economic security: The ICRC, often in cooperation with National Societies,

worked to help vulnerable individuals, households and communities, including those in

47 UNSC, S/RES/1270 (1999), Section 14 Sierra Leone

48 UNSC, S/RES/2363 (2017)

49 UNSC, S/RES/2432 (2018), section 66 on Mali, S/RES/2448 (2018), section 56 on MINUSCA, S/RES/2463 (2019) on MONUSCO

hard-to-reach areas, meet their basic needs, sustain themselves or their families, and cope with emergencies Among them were internally displaced people (IDPs), residents, returnees, refugees and people deprived of their freedom

Indeed, 4,214,606 people received food assistance; 6,991,691 people helped improve their living conditions; 5,209,767 people received support for food production; 1,006,645 people benefited from income support; and 140,155 people benefited from capacity-building initiatives50

About medical care: Whenever an armed conflict occurs, human casualties are

absolutely inevitable, medical relief shall, thus, be the first priority For this reason, the ICRC, in a close association with the local communities and health authorities, has adopted a holistic approach strategy with the goal of making health services accessible to all civilians affected by armed conflict

ICRC’s assistance is based on local needs and often combines prevention and treatment activities Prioritize vaccination, reproduction, clinical and psychosocial care for victims of war and other violence In addition, ICRC is also associated with local hospitals and pays attention to aspects such as surgery, obstetrics, pediatrics, internal medicine, and inpatient isolation wards for patients with infectious diseases

ICRC’s annual report in the year of 2020 shows that ICRC has supported 659 primary healthcare centers in providing supplies, equipment, financial assistance and technical support, training local health staff, and carrying out repairs or improvement to the facilities Consultations (7,534,522 cases in total) at such centers led to treatment and recommendations, including therapeutic feeding for malnourished children and mothers; vaccinations, including those for children under five; and referrals for higher-level care51 For the hospital services, in like manner, 599 hospitals were provided with regular or hoc support by the ICRC 101 of which, that provided with on-side support or directly

50 ICRC, Annual Report 2020, Facts And Figures, p.10

51 ICRC, Annual Report 2020, Facts And Figures, p.13