Lieber Studies Series – Protecting Civilians During Invasion

Editors’ note: This post is based on the author’s chapter in Civilian Protection in Armed Conflict: Select Issues (Jelena Pejic and Margaret Kotlik eds. 2025), the eleventh volume of the Lieber Studies Series published with Oxford University Press.

The United States has had the luxury of not having fought an armed conflict against another State on its territory since the Second World War at the Battle of Attu where U.S. forces expelled the Japanese army from Alaska’s Aleutian Islands in May 1943. Although the United States has engaged in numerous conflicts abroad without any danger of that conflict coming to its shores, some experts predict a future conflict with a peer adversary, such as China, could result in a protracted war that could extend years and likely include fighting in the United States. If a future armed conflict did involve an invasion of the United States, it raises the question of what protections U.S. civilians would have during the invasion phase.

The 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC IV) is the appropriate starting point for analyzing the protections that civilians will receive in the invasion phase of an international armed conflict. The title of GC IV is misleading because as one author noted, it does not provide for “the protection of all civilians in all circumstances in time of war” (p. 319). There are certain categories of individuals that are specifically excluded from many of its protections. Some States, including the United States, take a restrictive view so that a “protected person” only covers those individuals: 1) located in occupied territory; or 2) enemy nationals in the home territory of a party to the conflict.

To determine what protections civilians may have during the invasion phase of an armed conflict, this post will: 1) provide an overview of GC IV and its protections; 2) consider the “nationality” requirement and the United States’ restrictive interpretation; and 3) examine why this restrictive interpretation of who is a “protected person” is an incorrect interpretation of this Convention.

GC IV and its Protections

The 1949 Geneva Conventions are considered a milestone in the development of the law of armed conflict (LOAC). They were adopted after the widespread suffering of civilians and other war victims in the Second World War and marked a shift from instruments such as the Hague Regulations which dealt mainly with belligerent relations between States. GC IV was a defining moment as it was the first international instrument to expand on the very rudimentary protections for civilians that existed prior to 1949.

GC IV contains 159 articles and provides different protections for different groups of people. There are general protections covering the entire population against certain consequences of war. Other protections are contained in provisions common to the territories of the parties to the conflict. Additional rules relate to aliens in the territory of a party to the conflict, and to persons who are in occupied territories, respectively.

There are four parts of GC IV. Part I (“General Provisions”) includes the articles common to all the Geneva Conventions (arts. 1-3), the definition of protected persons (art. 4), and derogations from the definition of protected persons (art. 5). Part II (“General Protection of Populations Against Certain Consequences of War”) covers “the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the sufferings caused by war.”

Part III of GC IV (“Status and Treatment of Protected Persons”) contains the bulk of protections for “protected persons,” set forth in five sections. Section I applies both to the “Territories of the Parties to the Conflict and to Occupied Territories.” Richard Baxter describes these provisions as “a bill of rights for enemy civilians in time of war.” Section II provides protections to “Aliens in the Territory of a Party to the Conflict.” Although this section does not use the term “home territory,” it is generally accepted that it relates to enemy aliens who might be the territory of a party to the conflict, such as an enemy alien in the United States during an international armed conflict or a United States alien in the territory of a party to the conflict.

Section III of Part III contains the provisions applicable in occupied territory and provides certain obligations and rights of an occupying power. Section IV deals with the treatment of internees whether in a party’s own or in occupied territory. Section V establishes the official information bureaus responsible for receiving and transmitting information about protected persons in the power of parties to the conflict.

Definition of “Protected Person” under Article 4

Article 4 sets out that “protected persons” are individuals “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.” Although this language appears to be broad in application, Article 4 specifically excludes certain categories of individuals, essentially based on their nationality. These include: 1) nationals of a State which is not bound by GC IV (no longer relevant since all States have now ratified the Convention); 2) nationals of a neutral State who find themselves in the territory of a belligerent State; 3) nationals of a co-belligerent State, while the State of which they are nationals has normal diplomatic representation with the State in whose hands they are; and 4) persons protected by the First, Second, or Third Geneva Conventions.

Dr. Jean Pictet’s 1958 Commentary to GC IV notes that Article 4 essentially covers two main classes of protected persons under the Convention: “(1) enemy nationals within the national territory of each of the Parties to the conflict and (2) the whole population of occupied territories (excluding nationals of the Occupying Power). The other distinctions and exceptions extend or restrict these limits, but not to any appreciable extent.”

The Nationality Component of Article 4

Why make a distinction based on nationality? The exclusion derives from an understanding that such individuals retain the protection of their home State if it has continued relations with the State in which they find themselves. At the diplomatic conference, some delegates argued that GC IV offered “greater protections for enemy aliens than for neutrals.” In a recent article, Sarina Landefeld interpreted the language of Article 4 regarding “normal diplomatic representation” as an indication that the drafters were more concerned with the relations between States than with whether a State can provide actual protections to the nationals in question.

It is understandable that nationality would be a consideration for GC IV’s personal scope of application. HF Van Panhuys wrote that “nationality acts as a presumption (rebuttable or not) of a disposition directed against the interest of the state; enemy nationality supposes hostile disposition.” Given the security concerns regarding enemy nationals for a State, GC IV contains security and control measures for these individuals to counter potential arbitrary acts and abuses of power.

This fails to explain why a State’s own citizens would not be protected under GC IV. One rationale is that drafters did not view a State’s own citizens as a security threat or in need of protection. Landefeld further suggests that when the Convention was adopted in 1949, States generally assumed international legal obligations only with respect to aliens, and their own citizens were protected under a State’s domestic law. In her view, the drafters felt that any attempt to do otherwise would be “contrary to international law and [that it would] indeed [be] difficult to conceive of a power assuming obligations towards its own nationals by treaty with a foreign Power.”

United States Interpretation of Article 4

The United States, at least since 2004, has taken a restrictive interpretation of “protected persons.” The Department of Defense Law of War Manual (DoD LOWM) states in Section 10.3.2.2,

To be entitled to the protections provided under the GC for “protected persons,” a person must be located in either (1) occupied territory or (2) the home territory of a party to the conflict. The references in the GC that limit the scope of protections for protected persons to those “in the territory of a Party to the conflict” refer to the home territory of the party to the conflict in whose hands the protected person finds himself or herself.

However, the United States has not always taken such a narrow approach. Army Field Manual (FM) 27-10 (1956) states that, subject to the derogations in Article 5, “those protected by [GC IV] also include all persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as prisoners of war.”

Department of the Army Pamphlet (DA Pam.) 27-161-2 (1962) specifically addresses civilian persons.

Civilian persons are protected who “at a given moment and any manner whatsoever, find themselves, in cases of a conflict or occupation, in the hands of a Party to the conflict or occupying Power of which they are not nationals.” Therefore, in regard to the protection of persons, the narrow time and space requirements (during occupation) of the Hague Regulations are not applicable. An area need not be occupied. For general protection the person need only be “in the hands of a party to the conflict.”

This pamphlet also notes that Articles 27 to 34 of GC IV (provisions common to the territories of the parties to the conflict) “apply to any area in which a protected person finds himself in the power of a party to the conflict, principally an enemy power.”

It seems that a primary reason for narrowing the DoD interpretation from the 1960s to what is found in the DoD LOWM stems from two Department of Justice Office of Legal Counsel (OLC) opinions issued in 2004 and 2005 that examined who were “protected persons” under GC IV in Iraq and Afghanistan.

The first, authored in March 2004, titled “‘Protected Person’ Status in Occupied Iraq Under the Fourth Geneva Convention,” found that, for the United States, the protections of GC IV did not apply to al Qaeda members or operatives captured by U.S. forces in occupied Iraq as the “protections afforded to ‘protected persons’ by [GC IV] apply only to persons who ‘find themselves’ in occupied territory or in the home territory of party to the conflict.” However, these conclusions looked primarily at the narrower scope of application found Section II (“Aliens in the Territory of a Party to the Conflict”) and Section III (“Occupied Territory”) of Part III, GC IV.

The second OLC memorandum, “Whether Persons Captured or Detained in Afghanistan are ‘Protected Persons’ under the Fourth Geneva Convention,” which was written in August 2005 (but only made public due to litigation), focused on whether persons captured or detained by the United States in Afghanistan may be considered protected persons. Like the 2004 OLC opinion, this memorandum determined that the text, structure, and negotiating record confirmed that “‘protected person’” status is available only to persons in the hands of an occupying power in occupied territory or to persons in the hands of a party to a conflict in that party’s home territory.”

Is this Narrow Interpretation of “Protected Persons” under GC IV Correct?

Considering this apparent exclusion of certain categories of persons from the coverage of GC IV, there remains an unresolved issue as to what safeguards apply under GC IV to civilians during an invasion by an opposing State. The U.S. interpretation means that during an invasion of the United States, “protected persons” would only be citizens of the invading State in the United States and U.S. citizens in the territory of the invading State. Is this really what the drafters intended? Would U.S. civilians not be protected persons until there was an occupation?

Vienna Convention on the Law of Treaties

The 1969 Vienna Convention on the Law of Treaties provides the general rules for treaty interpretation in Articles 31 and 32, which the United States has recognized as customary international law.

Article 31 requires a good faith interpretation of a treaty, based on the ordinary meaning to be given to its terms, in their context, and in light of the treaty’s object and purpose. It provides a logical progression in the way to interpret a treaty. Accordingly, one should first look at the text of the treaty, followed by its context, and then consider other matters such as subsequent material to determine the parties’ intention.

Interpreting a treaty in good faith means that even when the words of the treaty are clear, they must be interpreted in a way that does not defeat its object and purpose or render its meaning manifestly absurd or unreasonable as it is the most likely reflection of the intention of the treaty parties, absent some evidence to the contrary. Article 31 also provides that other relevant rules of international law applicable in the relations between the parties should be considered including interpreting the treaty within the wider context of international law. This means that treaty interpretation may require looking not only at international law in 1949 when the Geneva Conventions were adopted but also consider contemporary norms as well.

Article 32 addresses supplementary means of interpretation, such as the travaux préparatoires of a treaty, when this may be necessary in order to confirm the meaning of its terms resulting from the application of Article 31.

Ordinary Meaning of the Treaty Terms

GC IV Article 4(1) establishes the definition of protected persons, which 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.” There is nothing in the plain language of this paragraph that sets forth any restriction of territorial application only to the “home” territory of a party to the conflict.

The ordinary meaning of the terms “at a given moment and in any manner whatsoever” and “in the hands of,” would appear to reflect the drafters’ intention of providing broad protections to those encompassed. The Pictet Commentary states that “at a given moment and in any manner whatsoever” was “intended to ensure that all situations and cases were covered.” Similarly, the term “in the hands of” was intended to be used in a “extremely general sense,” and was not limited to mean “in the hands of” in a physical sense, but rather that the “person is in territory which is under control of the Power in question.”

The two OLC opinions acknowledge the “broad” scope of the definition in Article 4. The 2004 opinion notes that the limitation of protected persons to situations of occupation or the home territory of a party to the conflict “does not emerge from article 4 itself, but rather from other provisions in [GC IV], notably Part III of [GC IV], which governs the “Status and Treatment of Protected Persons.” The 2005 memorandum reiterates this point by noting that “[c]onsidered in isolation” Article 4, subject to its specific exclusions, would confer protected person status on “any person anywhere” who finds themselves under the control of a party to the conflict.

Thus, the ordinary meaning of Article 4, read in conjunction with the exclusions set forth in Articles 4 and 5, is that in an international armed conflict civilians who find themselves in the hands of an enemy party of which they are not nationals would be considered protected persons under GC IV.

Context of Relevant Provisions of GC IV

The ordinary meaning of “protected persons” must also be interpreted in context and in conjunction with the entire agreement and not in isolation. Looking at “protected persons” in the context of the rest of the Convention, it is clear that GC IV provides different protections for different civilians at particular stages of the conflict. Certainly, the protections found in Part II apply to all individuals versus just “protected persons,” including even individuals who are exempt by its terms such as nationals of neutral States and a State’s own nationals.

Part III of the Convention, which contains the bulk of GC IV’s protective provisions, is most relevant to our analysis. Specifically, for the purpose of protection of civilians during the invasion phase, it is necessary to look at the scope of application of Section I.

The restrictive interpretation of the DoD LOWM and the OLC opinions is that all of Part III of GC IV is limited to protected persons in the home territory of a party or in occupied territory. This limited scope of application is true for Sections II or III, but there is nothing in the text of GC IV indicating that this limited scope was intended to apply to Section I. Even the title, “Provisions Common to the Territories of the Parties to the Conflict,” logically suggests a broader application. As already noted, Richard Baxter stated that Section I, “which has application to the territory of parties to the conflict and to occupied territory, is basically a bill of rights for enemy civilians in time of war.” It seems clear that Baxter does not interpret “protected persons” so narrowly as to be limited only to enemy aliens in the home territory of the party to a conflict or occupation.

Article 27 requires parties to the conflict and occupying powers to ensure that protected persons are treated humanely and are protected against all acts or threats of violence. It also proscribes rape, enforced prostitution, and other acts of sexual violence against women. The GC IV Commentary notes that Article 27 is a key provision of the Convention and the “basis of the Convention, proclaiming as it does the principles on which the whole of ‘Geneva Law’ is founded. It proclaims the principle of respect for the human person and the inviolable character of the basic rights of individual men and women.” The Commentary further discusses the importance of Article 27(2) on the treatment of women.

Paragraph 2 denounces certain practices which occurred, for example, during the last World War, when innumerable women of all ages, and even children, were subjected to outrages of the worst kind: rape committed in occupied territories, brutal treatment of every sort, mutilations, etc. In areas where troops were stationed, or through which they passed, thousands of women were made to enter brothels against their will or were contaminated with venereal diseases. … These facts revolt the conscience of all mankind and recall the worst memories of the great barbarian invasions.

Article 32 prohibits the physical suffering or extermination of protected persons in the hands of a party to the conflict. It applies not only to murder, torture, corporal punishment, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents. The Pictet Commentary provides “Article 32 states a principle common to the four Geneva Conventions of 1949,” and further specifies that “those who benefit under Article 32 are alien or enemy civilians in the hands of a Party to the conflict” (emphasis added).

These provisions and others found in Section I that provide many of the key protections for civilians would lead to an absurd result if limited to enemy civilians in the home territory of a party to the conflict or only upon occupation.

Object and Purpose of GC IV

Finally, GC IV must also be considered in light of its object and purpose. According to the Pictet GC IV Commentary, the main object of the treaty “is to protect a strictly defined category of civilians from arbitrary action on the part of the enemy, and not from the dangers due to the military operations themselves.”

One author considered the object and purpose of GC IV when he analyzed whether Panamanian civilians were protected persons under GC IV during Operation Just Cause. He argued that if the narrow interpretation of protected persons was accurate, it would render the definition of protected persons “essentially meaningless” for the Panama invasion. A gap would exist in the protections of civilians who found themselves “in the hands of” U.S. forces during the invasion and fighting short of occupation.

The same author concludes that when reading the treaty as a whole, in light of its object and purpose, the drafters must have intended for the protections found in Section I to also apply to civilians in the country in which the conflict is occurring, even before such territory is considered occupied. This is because an “absolute gap in protections … would appear contrary to the ‘object and purpose’ of the Convention… . [T]he drafters must have intended that some protections be afforded the category of civilians that appear to fall in the gap created by a literal reading of several of its provisions.”

The Pictet Commentary also recognizes that failure to provide some protections to civilians in an invasion would result in a gap in the law.

In short, all the particular cases we have just been considering confirm a general principle which is embodied in all four Geneva Conventions of 1949. Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.

It is unfathomable that the drafters of GC IV, negotiating right after the horrors of the Second World War, intended an interpretation of its defining provision so narrow that it categorically excludes from protection civilians in the territory in which an enemy force has invaded.

Conclusion

Certain States, including the United States, have determined that to be entitled to the protections provided by GC IV to a “protected person,” a civilian must be located either in 1) occupied territory or 2) the home territory of a party to the conflict. Under this restrictive interpretation, U.S. citizens in the United States would not be considered protected persons during an invasion by foreign forces even if willfully killed, raped or tortured by them.

This narrow interpretation entails ignoring the plain text of GC IV and requires a tortuous conclusion grafted onto the structure of GC IV. The result is that an invading military would be less constrained under GC IV than the invaded State’s military, because only the invaded State would have obligations with respect to the protection of civilians in the State in which war is taking place.

Although GC IV does not protect all civilians in all circumstances in time of war, the most appropriate interpretation is one that provides protections to civilians in invaded territory under Part III, Section I. To read it any other way would go against the object and purpose of GC IV and lead to an absurd result.

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Michael W. Meier is currently an adjunct professor at Georgetown University Law Center (GULC) and an Associate Fellow at the Geneva Centre for Security Policy.

The views expressed are those of the author, 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. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

 

 

 

Photo credit: U.S. Air Force, Senior Airman Taylor Crul