Lieber Studies Series – Civilian Protection in Armed Conflict: Select Issues

Civilian protection is a basic aim and legal obligation of international humanitarian law (IHL) or the law of armed conflict (LOAC). Yet, as recent and ongoing armed conflicts in Gaza, Sudan, Ukraine, Myanmar, and elsewhere demonstrate, State armed forces and non-State armed groups seem unable, and in many cases unwilling, to effectively spare civilians from harm.

We chose the topic of Civilian Protection in Armed Conflict: Select Issues as the focus of the eleventh volume of the Lieber Studies Series to once again draw attention to the abiding challenge of better protecting civilians.

Civilians are most visibly harmed in the conduct of hostilities. Bodies strewn in rubble, buildings destroyed, and populations forced to flee their homes are flashed everyday on media platforms from all parts of the world.

But there are other, less publicly visible ways of inflicting harm on civilians that arise when they find themselves in enemy hands. These situations are the primary focus of our volume. The lack of immediacy or scale of violations in these scenarios does not mean that the severity of suffering is different or that the effects of disrespect for the law are less traumatic for the persons affected.

The 1949 Geneva Conventions govern the protection of persons in enemy hands. Certain provisions of Additional Protocols I and II of 1977 further complement the relevant rules in international and non-international armed conflicts, respectively, with customary IHL providing baseline legal standards in all cases. The war crimes of execution, torture, and other barbaric acts are well embedded in these sources, as are the rules on conditions of detention, fair trial rights, procedural safeguards for detainees, and others.

Volume eleven of the Lieber Studies Series does not examine or rehash these long-established norms and prohibitions, but rather addresses a range of other questions that have arisen in military legal or operational practice over time that remain unresolved or require further reflection and action. While the book was developed against the backdrop of the war in Ukraine, followed by the beginning of the war in Gaza a few weeks before the Lieber Institute meeting to workshop the chapters, it remains relevant to these and other armed conflicts, past and present.

We chose the contributions making up Civilian Protection in Armed Conflict: Select Issues to reflect the timeline of a civilian’s possible exposure to military operations: from the invasion phase of an international armed conflict; through investigations; to criminal accountability processes for serious violations of IHL during or after an armed conflict.

We deliberately worded the title of the book “select issues” to stress that the contributions are not and cannot be seen as a comprehensive overview of civilian protection in armed conflict. That would be not only pretentious, but also misleading because, as already mentioned, its main focus is on the protection of civilians in enemy hands. Even within such a conceptually circumscribed approach, a selection had to be made.

This Articles of War series, focusing on our volume, highlights three chapters of the book that exemplify the aim of the volume as a whole, which is to elucidate the applicable law protecting civilians in the myriad, intersecting scenarios of armed conflict. Symposium posts will include protection in the invasion stage of an international armed conflict, the perhaps misleading notion of “humanitarian” corridors, and armed forces’ investigations of their own conduct. This introductory post previews the different sections of the volume and their respective chapters.

Structure and Themes

Volume eleven is divided into four parts, each of which provides a broader editorial structure to the chapters included.

Part One: Foundational Issues

Part One of our volume aims to remind the reader of critical issues arising from the Fourth Geneva Convention applicable in an international armed conflict about which there is still no consensus among States, militaries, and legal experts, to the detriment of civilian protection.

Whether and how civilians are protected in the invasion phase of an international armed conflict is the subject of Colonel (ret.) Michael W. Meier’s chapter (and related Articles of War post). The war in Ukraine put the problem of the Fourth Convention’s lack of clarity on this question squarely on the table again. COL Meier reflects on the various possible interpretations, and also examines the currently restrictive U.S. position and its would-be consequences.

Professor Marten Zwanenburg revisits the longstanding question of the personal scope of application of the Fourth Convention and, in particular, whether and how it protects “unprivileged belligerents.” The question is of more than academic interest given the ever increasing civilianization of armed conflict. The legal approaches discussed are thus relevant for the protection of civilians directly participating in hostilities thanks to digital technology such as smart phones.

As is almost superfluous to point out, the object and purpose of a treaty provide key legal guidance on how its terms are to be interpreted. A treaty’s object and purpose enable insights into the ordinary meaning of the text and allow its protective intent to be fully realized. Notably, the Fourth Geneva Convention’s preamble, where one would usually look for such insights, provides no clues. Professor Kubo Mačák and Ellen Policinski’s chapter, the third in Part One, take us on a legal journey in search of the Fourth Geneva Convention’s object and purpose.

Part Two: Law and Reality

Part Two of our volume groups, in twelve chapters, a range of more specific legal and/or operational issues under the heading “Law and Reality.”

Apart from internment, the Fourth Geneva Convention does not detail what other “measures of control and security as may be necessary as a result of the war” an adversary can impose upon civilians. Colonel Nathalie Durhin’s chapter discusses what some of these measures are in practice and addresses the challenge of striking the right balance between security considerations and minimizing the impact on the civilian population in their implementation.

Professor Jann K. Kleffner writes about the law applicable to the “screening” of civilians, a regular occurrence in military operations and yet not dealt with as such in IHL or other bodies of international law, despite the often evident abuses in practice. Professor Kleffner examines screening processes within the context of restriction of movement and suggests, in a first, a number of conditions against which the lawfulness of screening operations may be assessed.

Setting up humanitarian corridors is a practical measure, also not regulated by IHL, aimed at enabling the evacuation of civilians trapped in hostilities or access to them by humanitarian organizations. In her chapter (and related Articles of War post), Professor Julia Grignon examines the concept itself, the relevant law, and the practical challenges involved in setting up humanitarian corridors. She warns that their establishment indicates a lack of prior compliance with law and discusses why they may even endanger civilian protection.

Professor David Kretzmer’s chapter was conceptualized before the current armed conflict in Gaza but is of ongoing and future interest as it deals with the law and politics of civilian protection in the West Bank since 1967. It traces the connection between Israeli settlement policies in that part of occupied Palestinian territory and the failure of Israeli authorities to enforce the law against Israeli settlers who have engaged in violence against Palestinians or their property.

Professor Fionnuala Ní Aoláin reflects on the effects for civilian protection of both counter-terrorism rhetoric and measures. Her contribution examines how the counterterrorist label has been used to displace or modify the protective goal and scope of rules of IHL/LOAC and human rights law. The situation in northeast Syria serves a backdrop to demonstrate the extreme costs for the protection and rights of boys and men when the “terrorist” label is arbitrarily applied.

Despite amounting to war crimes, deportation and forced conscription have been widely reported in the international armed conflict in Ukraine, which, regrettably, is no exception. Two chapters in volume eleven address the applicable law and examine the lack of compliance with the relevant treaty and customary obligations, respectively. Professor Michael N. Schmitt provides an overview of the IHL/LOAC and international criminal law rules prohibiting deportation, including certain nuances and exceptions, concluding that the law is largely unequivocal on the matter.

Lieutenant Colonel Casey W. Biggerstaff discusses the various components of the prohibition of forced conscription. He surveys the relevant treaty provisions in both the 1907 Hague and 19149 Geneva law, as well as their contemporary counterparts. The contribution also points to certain challenges in the interpretation and application of the prohibition that are not firmly settled.

IHL/LOAC permits, and in some situations obliges, belligerents to collect and process information on their opponents. Professor Russell Buchan’s chapter examines whether international law imposes any limits on information operations undertaken during armed conflict given the breadth and permissiveness of this requirement. He analyzes whether belligerents must respect the rights to privacy and data protection while collecting and processing civilian data, based on the 1907 Hague Regulations, the Fourth Geneva Convention, and Additional Protocol I, as well as human rights law.

Prior to Russia’s invasion in 2022, Russian cyberattacks targeted Ukraine’s critical infrastructure, prompting Ukraine to amend its data protection laws and migrate digital operations to public clouds on private servers across Europe. As Professor Leah West explores in her contribution, this strategy raises questions about the compliance of such measures with IHL’s obligations to protect civilians and civilian objects from attack.

Part Three: Interfaces

Part Three of our volume includes three chapters on gender issues, the natural environment, and forensic science, respectively.

IHL/LOAC has long been criticized (perhaps unfairly) for the way in which it deals with gender issues, given that the main treaties were adopted decades ago. Professor Valerie Oosterveld’s contribution examines legislative and jurisprudential developments since the Fourth Geneva Convention came into force, including Common Article 3 thereof, discussing whether and the extent to which legal interpretation has filled the gaps in both international and non-international armed conflict.

Lakmini Seneviratne and Kosuke Onishi’s chapter is devoted to environmental protection as civilian protection. The natural environment enjoys the protection afforded civilian objects unless a distinct part of it qualifies as a military objective. The authors analyze, inter alia, the relevant IHL/LOAC rules on the conduct of hostilities in military operations positing that their proper application is both a legal requirement and means to the protection of the natural environment in armed conflict.

The recovery, identification, and protection of the dignity of the dead and the search for those missing in wars are important obligations under IHL. As Morris Tidball-Binz explains, forensic science helps fulfill these humanitarian imperatives and is increasingly used to prevent and resolve the tragedy of the missing in armed conflicts. Tidball-Binz provides a compelling recent example of best practice related to the identification of soldiers killed in the 1982 Falkland/ Malvinas Islands war between the United Kingdom and Argentina.

Part Four: Accountability

Part Four focuses on three topics related to the aftermath of serious or other violations of LOAC.

Unlawful confinement, along with unlawful killing, constitutes one of the most frequent and typical violations of IHL/LOAC endured by persons in the hands of an adversary in armed conflict. It is recognized as a war crime in international armed conflict, but individuals have only rarely been charged for this criminal offense. Professor Marco Sassòli tackles the numerous legal and practical challenges and controversies still surrounding unlawful confinement as a war crime. The chapter also addresses unlawful confinement in non-international armed conflict.

Armed forces’ investigations of IHL/LOAC violations against civilians are one of the most effective ways of putting a stop to and/or preventing violations of IHL, including war crimes, as an armed conflict is ongoing and thereafter. But the quality and efficacy of military investigations has faced criticism, particularly when the subject of the investigation is civilian harm. In her chapter (and related Articles of War post), Professor Jennifer Maddocks provides an overview of the relevant legal frameworks and of the challenges that States might encounter in fulfilling their legal obligations given the uncertainty and “messiness” of armed conflict. She examines how an appropriate balance can be struck between States’ investigative duties and military considerations.

Redressing civilian harm caused in armed conflict continues to be a topic of both controversy and (slow) legal evolution. More specifically, whether an obligation of reparation exists in relation to individuals and, if so, on what legal basis, as well as the processes that may be applied to ensure it is honored, have generated some scholarly attention. In the last chapter in Part Four, and of the volume as a whole, Professor Tom Dannenbaum delves into the key areas of agreement and controversy in legal views and provides arguments as to why the case for reparations is stronger than often believed in both international and non-international conflict.

Conclusion

We chose the topics of the separate chapters based on legal and practical challenges experienced or observed in military operations on the ground. This volume may therefore be a critical resource not only for IHL academics, but also for military legal advisors, practitioners, commanders, and policymakers alike. Insufficient understanding of or agreement over certain aspects of civilian protection in armed conflict have nefarious consequences for civilians. The topics of this volume seek to make progress toward a more comprehensive protection of civilians.

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Jelena Pejic is a Lieber Scholar at the Lieber Institute and she was formerly a Senior Legal Adviser in the Legal Division of the ICRC in Geneva.

Major Mattie Kotlik is an Assistant Professor in the Department of Law and and the 2023 Lieber Institute Military Fellow. .

The views expressed are those of the authors, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense. 

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published.

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