The Other Side of Civilian Protection: The 1949 Fourth Geneva Convention

The initial stage of an international armed conflict, such as the one in Ukraine, inevitably focuses international attention on the conduct of hostilities. This is to be expected, given the immediate, visible and usually devastating effects of the use of force on the civilian population. Equally grave suffering is experienced, only less transparently, by persons in the power of an adverse party. There has been a dearth of focus by governments and military practitioners over the past several years on how to ensure that IHL/LOAC rules dealing with persons in enemy hands are interpreted and applied with the least possible ambiguity.  This post considers the 1949 Geneva Convention on the protection of civilians (GC IV) applicable in international armed conflict (IAC)—in full awareness of the fact that civilian protection in non-international armed conflict (NIAC) is an even greater conundrum.

GC IV was a belated addition to the IHL/LOAC framework. The treaty was only adopted in the wake of the Second World War, after millions of civilians worldwide suffered horribly or were killed as a result (among other things), of the lack of political will of States to reach prior agreement on a text. The Fourth Convention is nevertheless a monumental achievement. It includes over a hundred and fifty articles elaborating on the foundational principle of humane treatment. The specificity of the legal obligations formulated is impressive, whether one looks at the provisions common to the civilian populations of the countries at war, those on the protection of aliens in the territory of a Party to the conflict, on civilians in occupied territories, or on the treatment and process for internees, to name just a few headings.

In contrast to the 1949 Geneva Third Convention on Protection Relative to Prisoners of War (GC III), the application of the GC IV is unfortunately open to more legal controversy. Some questions are interpretive in nature. Others reflect the time of the treaty’s drafting. And still others have not been resolved in practice. Three will be addressed below, all of which have been, and still present, obstacles to the uniform protection of civilians in IAC.

So-Called “Unlawful Combatants”

The first issue is well-known and relates to the personal scope of application of GC IV. The relevant treaty text (Article 4, para. 1) is clear: “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the Conflict or Occupying Power of which they are not nationals.” The text also states that GC IV does not protect persons who are already covered by one of the other three Conventions of 1949, including prisoners of war. Despite the drafting clarity, controversy centers on whether unprivileged belligerents or unlawful combatants (UCs), terms not found in the text, who fulfil the Article 4 nationality criteria are protected by the Convention upon falling into the power of the enemy. UCs are civilians who take a direct part in hostilities without being authorized to do so under IHL/LOAC.

According to one school of thought, UCs are protected by the Convention. The drafting history of GC IV does not suggest that there was agreement to exclude them, as demonstrated by the unambiguous wording of the definition of a protected person quoted above. Moreover, the treaty provides, in Article 5, that a person suspected of or engaged in activity hostile to the security of a State in its territory may be denied such rights and privileges under the Convention as would, if exercised, be prejudicial to its security. The gist of the formulation relevant to occupied territories is similar, albeit more specific as to the rights that may be “suspended.”

According to another view, UCs are a separate category of persons, not covered either by GC III or GC IV. It is believed that their unlawful participation in hostilities sets them apart from “peaceful civilians” and that they can at most claim the protections of customary law: either Common Article 3 of the Geneva Conventions, or the fundamental guarantees of Article 75 of Additional Protocol I of 1977, either as customary law, or as a matter of policy.

It is submitted that this interpretation disregards the plain language of the already quoted text of Article 4, para. 1 defining a protected person. GC IV has enjoyed universal ratification for nearly two decades. Moreover, it may be argued that a rule on hierarchy of international law sources indicates that treaties adopted later in time that achieve universal State ratification supersede prior customary law where the two diverge. In any case, the Geneva Conventions are nowadays deemed to reflect customary law. Thus, the question is: what is the legal justification for persistent reliance on a separate legal category of UCs as persons excluded from the Geneva treaty regime? Unfortunately, proponents of the approach described have offered scant explanation and, when they did, relied mainly on (rare) domestic court decisions or outdated scholarly articles. (paras. 121-127).

GC IV does not mention or distinguish between UCs and “peaceful civilians.” This is presumably because, as demonstrated in the Second World War and in IACs thereafter, some civilians took a direct part in hostilities regardless of lack of IHL/LOAC authority to do so, for a variety of reasons. Such behavior, it should be noted, is not a listed as grave breach of the Fourth Convention, nor is it a war crime under the 1998 Statute of the International Criminal Court. Instead, the IHL/LOAC framework provides several layers of possible, severe sanctions for civilians who take up arms. A UC may be targeted and killed while directly participating in hostilities. They may be subject to a civilian internment regime—anticipated by a significant portion of GC IV—because of the serious threat their activity presents to the security of the detaining Power. They may likewise be prosecuted and tried under the domestic criminal law of the captor for direct participation per se, as well as for any acts of violence committed during that time.

It would be useful to know why the practical and legal consequences of unlawful participation in hostilities provided for in IHL /LOAC are apparently considered insufficient by proponents of the view that UCs are outside the Geneva treaty regime when in enemy hands. It seems this view risks allowing a descent into behavior that would be prohibited as inhumane. As mentioned, detailed legal arguments have been lacking, stifling a common understanding among States on the application of the treaty text, and more importantly, leading to the unequal protection of civilians in practice, based on the Power detaining them.

Invaded Territory

 A second challenge involves a normative gap in the text of GC IV arising from its structure. By way of reminder, Part I of the treaty contains general provisions. Part II includes provisions protecting the entirety of the populations of the countries in conflict (e.g., on hospital and safety zones, family news, child welfare), while Part III, by far the bulk of the text, deals with the status and treatment of protected persons as defined in Article 4. The further subdivisions of Part III clearly indicate that the persons referred to are to be found either in Party to the conflict’s own territory or in occupied territory.

No provision is made for situations in which civilians may find themselves in enemy hands outside these two territories, such as during the invasion phase of an IAC or a raid into enemy territory. Moreover, practice, including fairly recent one, has shown that foreign invasions do not necessarily lead to swift occupations and may lead to prolonged forms of control over persons and objects short of occupation. Further, legally classifying a situation as an occupation (under Article 42 of the 1907 Hague Regulations), is often politically rejected by an occupier, making the application of the relevant section of GC IV very difficult in practice.

It would appear based on the drafting history of the Fourth Convention that States specifically intended to focus in Part III on the two groups of persons covered: aliens in belligerent States’ own territory and civilians in occupied territory. It is not clear why this approach was taken except, perhaps, that the treaty negotiations reflected the immediately preceding reality of the Second World War during which the dichotomy solidified. It is, nevertheless, inconceivable that civilians who come into contact, or are otherwise under the control of enemy forces outside a belligerent Party’s own territory or occupied territory, remain outside any legal protection. They are covered by the fundamental guarantees of Article 75 of Additional Protocol I (AP I), for States party to that treaty, or as a matter of customary law or policy, but the protections provided are far more basic than those spelled out in GC IV. While murder and torture are prohibited, for example, Article 75 of AP I does not refer to procedural safeguards for internees or to the prohibition of deportation of civilians.

In 1958 already Jean Pictet attempted to “fill” the legal gap in the ICRC’s Commentary to the Fourth Convention by stating that the term “occupation” as used in GC IV cannot be equated with the meaning of that word under the Hague Regulations. As Pictet explained:

The relations between the civilian population of a territory and troops advancing into that territory, whether fighting or not, are governed by the present Convention. There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation. Even a patrol which penetrates into enemy territory without any intention of staying there must respect the Conventions in its dealings with the civilians it meets. When it withdraws, for example, it cannot take civilians with it, for that would be contrary to Article 49 which prohibits the deportation or forcible transfer of persons from occupied territory. The same thing is true of raids made into enemy territory or on his coasts. The Convention is quite definite on this point: all persons who find themselves in the hands of a Party to the conflict or an Occupying Power of which they are not nationals are protected persons. No loophole is left.

Pictet’s approach is commendable but, being a broad statement, lacks elaboration. The main criticism is that invading forces would not be able to comply with the entirety of the Convention from the beginning. Scholars have since proposed a variety of ways in which the legal gap could be addressed. Thus, Marco Sassòli has suggested using a “functional approach,” according to which “a territory may be considered occupied along a sliding scale for the purpose of the applicability of certain rules of IHL for military occupation but not for others” (para 8.221).  Other writers have identified specific GC IV rules on occupied territories that would come into play during the invasion phase.

Military manuals usually replicate the dichotomy of GC IV without addressing the issue of the protection of civilians outside a Party’s own territory or occupied territory. The International Criminal Tribunal for former Yugoslavia took its own approach (paras. 221 and 587), indicating that only rules protecting persons apply in the invasion phase, not those protecting property. The current uncertainty in law and practice on this issue would seem to call for a focused examination by States and other actors with a view to arriving, as a start, at a policy position on the status and treatment of civilians not explicitly covered by GC IV. The normative gap is significant and so, inevitably, is the protection gap.

Internment

The third question to ponder in relation to GC IV is when the internment of detained protected persons begins. GC IV provides no guidance and military manuals—sauf erreur—do not address the issue. But it is hugely important. While there is no question that a POW as defined in Article 4 of GC III may be interned for posing a threat to the security of the detaining Power based on their very status, the situation of protected persons under GC IV is different in reality and thus in the law. Civilians must pose a threat based on their activity, and a Party to the conflict “may take such measures of control and security in regard to protected persons as may be necessary as a result of the war” (GC IV, Article 27, para 4). Along with assigned residence, internment in a State’s own territory or in occupied territory is the severest measure of control that a State make take.

In either case the relevant provisions specify the legal standard on grounds for internment that must be met and the applicable procedural safeguards. Internment involves a process in which the State initially determines whether a detained individual poses a security threat and whether they should be released or kept in detention with further periodic review. Civilian internment must cease as soon as the reasons for it no longer exist and, in any case, after the close of hostilities. Given that civilians who may pose a security threat based on their activity are captured not only in open combat, but in raids and other types of operations, the importance of a review process cannot be overstated.

What may happen in practice, however, is that civilians are detained for a period of time, the duration of which may vary, without being designated as internees or subject to the full procedural safeguards of GC IV. If there is a review process it depends on the policy approach of the detaining State. It is submitted that the issue of when internment begins needs to be resolved not only because the disparate approaches of States in practice lead to different outcomes in individual cases, but because detention for security reasons without the requisite legal guarantees applied could be deemed unlawful. The claim, heard informally from militaries, that setting up an internment regime is resource intensive is true, but cannot be dispositive. Internment review is a legal obligation under GC IV and protection of persons in enemy hands cannot be fully accomplished without it.

Conclusion

Unfortunately, threats to the safety of civilians do not end with attacks. They remain at enormous risk of harm and mistreatment when belligerents place them under their control. While GC IV reflected a huge step forward in the protection of civilians who find themselves in the hands of their nation’s enemy, significant ambiguities and interpretive squabbles leave hampered the Convention’s protective regime. The time is ripe for States to resolve these disputes to better protect those who suffer most from the ravages of war. Clarifying the personal and geographic scope of GC IV protections and the internment standard to better protect civilians is a laudable and eminently attainable step toward ensuring humanity in war.

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Jelena Pejic is a former Senior Legal Adviser in the Legal Division of the International Committee of the Red Cross (ICRC) in Geneva.