A RESEARCH ASSIGNMENT ON

“Protection of Civilian Person in Times of War”

SUBMITTED TO:
(Mr. RUPAKSH SHARMA)

(FACULTY OF “HUMAN RIGHTS AND HUMANITARIAN LAW”)

SUBMITTED BY:

AYUSH KUMAR SINGH

ROLL NO.- 17FLICDDN01034
BATCH (2017-2022)

DATE OF SUBMISSION:
14TH NOVEMBER 2021

ICFAI LAW SCHOOL,

ICFAI UNIVERSITY, DEHRADUN

[AUTHOR NAME] PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR 1

 DECLARATION

I AYUSH KUMAR SINGH, student of BBA.LLB (Hons), hereby declare that the project
work entitled “PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR” submitted
to the ICFAI Law School, ICFAI University, Dehradun is a record of an original work done
by me under the guidance of Mr. RUPAKSH SHARMA, teacher in subject, ICFAI Law
School, ICFAI University, Dehradun.

Date: 14 November 2021 Name: Ayush Kumar Singh

Roll No. 17FLICDDN01034

Batch 2017- 2022

[AUTHOR NAME] PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR 2

 ACKNOWLEDGEMENTS

I would specially like to thank my guide, mentor, Mr. Rupaksh Sharma without whose
constant support and guidance this project would have been a distant reality.

This work is an outcome of an unparalleled infrastructural support that I have received from
ICFAI Law School, ICFAI University, Dehradun.

I owe my deepest gratitude to the library staff of the college.

It would never have been possible to complete this study without an untiring support from my
family, especially my parents.

This study bears testimony to the active encouragement and guidance of a host of friends and
well-wishers.

Name: Ayush Kumar Singh

Roll no- 17FLICDDN01034

Batch- 2017-22

[AUTHOR NAME] PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR 3

 LIST OF ABBREVIATIONS

1. S SECTION
2. & AND
3. Vol. VOLUME
4. PG PAGE
5. TOTO TOATLITY
6. Ors. OTHERS
7. Cl. CLAUSE
8. Art. ARTICLE
9. i.e. THAT IS
10. W.r.t WITH RESPECT TO

[AUTHOR NAME] PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR 4

 TABLE OF CONTENT

DEFINITION OF CIVILIANS 06
CIVILIANS ARE BEING SAFEGUARDED 07
CIVILIANS' PROTECTION IN INTERNATIONAL ARMED CONFLICTS 08
 Defence of the general society from attacks 08
 Receive assistance 09
CIVILIANS INVOLVED DIRECTLY IN HOSTILITIES 10
INTERNATIONAL COMMITTEE OF THE RED CROSS 11
CONCLUSION 12
BIBLOGRAPHY 14

[AUTHOR NAME] PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR 5

International humanitarian law is a collection of standards that apply in times of armed
conflict and are established by treaty or custom. As previously stated, it is motivated by
humanitarian concerns and the reduction of human suffering.1

What are the goals and origins of international human rights law?

Although International Humanitarian Law (IHL) dates back to approximately the eighteenth
century, the concepts and practises that it is based on are much earlier. International
humanitarian law, often known as armed conflict law or war law, aims to strike a
compromise between humanitarian considerations and military necessity. 2 Warfare is
subjected to the rule of law through minimising its destructive effects and reducing human
suffering. IHL is divided into two sections:3

 Protection and aid to individuals who have been harmed by the conflict
 Warfare's means and methods are regulated.

DEFINITION OF CIVILIANS

Rule 5: Civilians are everyone who is not a member of the military. The civilian population is
made up of everyone who is a civilian.4

This rule is established as a standard of customary international law applicable in

international armed conflicts by state practise. It also means that non armed conflicts, albeit
whether members of militant groups are regarded members of the armed forces or civilians is
a matter of debate. As an outcome, a civilian is anyone who does not belong to one of the
following groups:

1. all organised groups and units, even if the party to the conflict to which it responds is
represented by a government;
2. the armed forces of a party to the conflict, as well as militias or volunteer corps
forming part of such armed forces; the armed forces of a party to the conflict, as well
as militias or volunteer corps forming part of such armed forces;

1
Huma Haider, Overview of international humanitarian law, GSDRC, January 2013 (https://gsdrc.org/topic-
guides/international-legal-frameworks-for-humanitarian-action/concepts/overview-of-international-
humanitarian-law/) Accessed on 10th November 2021
2
Ibid
3
The laws of war in a nutshell, INTERNATIONAL COMMITTEE OF THE RED CROSS, 19 October 2016,
(https://www.icrc.org/en/document/what-are-rules-of-war-Geneva-Convention) Accessed on 2nd November
2021
4
ICRC, Customary IHL Database, (https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule5)
Accessed on 10th November 2021
[AUTHOR NAME] PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR 6
 3. all organised groups and units, as long as these groups and units are under a command
that is responsible for the conduct of its subordinates Organized resistance movements
and other minor armed groups fall under this category.5

All people are included in the "civilian population." The presence of repressed people who do
not meet the concept of civilians within a civilian population does not deprive the population
as a whole of its civilian aspect or the shelter to which it is subject.6

CIVILIANS ARE BEING SAFEGUARDED

The rules of the First and Second Geneva Conventions regarding wounded, sick, and
shipwrecked are developed in Part II (Articles 8-34). It extends the Conventions' protection to
civilian medical personnel, equipment, and supplies, as well as civilian units and transports,
and includes precise medical transportation requirements.7

Civilians have only lately received special protection under international humanitarian law.
Prior to 1949, the major international conventions only governed hostilities and the fate of
injured, sick, or shipwrecked fighters or prisoners of war. Civilians were only indirectly
protected as a result of the general obligation to attack only military targets and the specific
obligation of fighters to wear military uniforms and conduct military activities in the open.
The Fourth Geneva Convention has particularly protected civilians since 1949. Its primary
goal is to safeguard civilians from atrocities committed by the opposing party to the conflict.

In this regard, humanitarian law establishes a general system of protection for civilians,
which it strengthens in specific situations—such as occupied territories or cases of internment
or evacuation—or for specific categories of people who are considered more vulnerable—
such as children, sick and wounded people, or detainees.8

Additional Protocol I to the Geneva Conventions, adopted in 1977, strengthened the

protections for the civilian population in situations of armed conflict. The Geneva
Conventions' Additional Protocol II augmented this shelter to civilian population in non-

5
See Geneva convention relative to the treatment of prisoners of war of 12 august 1949, Arts. 4.a.1–3, 4.a.6;
API Arts. 43, 50
6
See Geneva Conventions of 12 August 1949, Additional Protocol (I), Article 50
7
Treaties, States Parties and Commentaries, Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977,
INTERNATIONAL COMMITTEE OF THE RED CROSS, (https://ihl-
databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?
action=openDocument&documentId=D9E6B6264D7723C3C12563CD002D6CE4) Accessed on 12th November
2021
8
See all of GCIV, API Arts. 48–56, APII Arts. 13–18).
[AUTHOR NAME] PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR 7
international armed conflicts, where they are particularly vulnerable due to the challenges in
distinguishing between combatants and civilians in such conflicts, as well as their opposition
toward their own military and government.

CIVILIANS' PROTECTION IN INTERNATIONAL ARMED CONFLICTS

Respect for and protection of civilians and civilian things is based on the parties to a
conflict's obligation to distinguish between civilians and combatants on the one hand, and
civilian objects and military objectives on the other. 9 One of the pillars of humanitarian law is
this commitment.

All civilians, without exception, must be protected from the effects of military activities in all
circumstances.10 As a result, individuals cannot be used as a target for fighting or violence,
and they have the right to receive the aid they require.

Defence of the general society from attacks

Article 51 of Additional Protocol (I) define the broad system of protection. Articles 52 to 56
protect civilian objects, especially those essential to the civilian population's survival. 11
Specific regulations and definitions relating to the idea of attacks (API Arts. 49–51) and the
specific measures that must be adopted throughout attacks (API Art. 57) bolster these
regulations:

 Attacks on the civilian population must be avoided. Acts or threats of violence with
the main goal of instilling fear in the innocent civilians are forbidden.12
 Attacks that may indiscriminately target military targets as well as civilians or civilian
objects are illegal. "Indiscriminate attacks" are described as attacks that are not
targeted at a specific military objective, use a method or means of battle that cannot
be targeted at a specific military objective, or use a manner or equipment of combat
whose consequences cannot be restricted.13
 Retaliatory attacks are not permitted to be directed towards civilians.14
 Civilians must not be used to shield military objectives or operations or to render
them immune from attacks.15
9
Geneva Conventions of 1949, Additional Protocol, Article 48
10
Geneva Conventions IV, Article 13
11
Geneva Conventions of 1977, Additional Protocol (I) Article 54
12
Geneva Conventions of 1977, Additional Protocol (I) Art. 51.2
13
Geneva Conventions of 1977, Additional Protocol (I) Art. 51.4
14
Geneva Conventions of 1977, Additional Protocol (I) Art. 51.6
15
Geneva Conventions of 1977, Additional Protocol (I) Art. 51.7
[AUTHOR NAME] PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR 8
  Civilian objects are likewise protected, and they shall not be subjected to acts of
violence, direct or indiscriminate attacks, or reprisals (API Art. 52). This protection
extends to objects critical to the population's survival (which may not be attacked,
destroyed, removed, or made the target of retaliation; API Art. 54), cultural objects
and places of worship (Art. 53), the natural environment (Art. 55), and works and
installations containing dangerous forces (Art. 56). (Art. 56).16

Receive assistance

The humanitarian help to which citizens are entitled if they lack sufficient food, medical
supplies, clothing, bedding, shelter, and other necessities for survival is governed by the
protection system. The relief operations outlined in Protocol I are intended to help people in
occupied territory, but they also apply to any other circumstance in which civilians are
harmed by armed conflict.17

The following acts, regardless of whether perpetrated by civilians or military agents, are and
will remain forbidden at all times and in all places:18

A. Violent acts against people's lives, health, or physical or mental well-being, in particular:
1. homicide;
2. all forms of torture, whether physical or mental;
3. physical punishment
4. mutilation
B. Infringements on personal dignity, such as humiliating and degrading treatment, forced
prostitution, and indecent assault of any kind;
1. the abduction of captives;
2. punitive measures in the form of a group; and
3. threats of committing any of the aforementioned offences.

Any individual arrested, detained, or interned for actions linked to the armed conflict must be
notified of the grounds for these actions as soon as possible, in a language he understands.
Except in cases of arrest or detention for criminal offences, such people must be freed as
16
ICRC, Customary IHL Database, (https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule5)
Accessed on 10th November 2021
17
The Practical Guide to Humanitarian Law, Médecins Sans Frontières,
(https://guide-humanitarian-law.org/content/article/3/civilians/) Accessed on 6th November 2021
18
Article 75, Fundamental guarantees, Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Treaties, States
Parties and Commentaries, INTERNATIONAL COMMITTEE OF THE RED CROSS, (https://ihl-
databases.icrc.org/ihl/WebART/470-750096?OpenDocument) Accessed on 10th November 2021
[AUTHOR NAME] PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR 9
quickly as practicable and, in any case, as soon as the conditions prompting the arrest,
detention, or internment have passed.19

A person found guilty of a penal offence related to the armed conflict may not be sentenced
or punished unless he or she has been convicted by an impartial and properly constituted
court, which must follow the generally recognised principles of regular judicial procedure.20

CIVILIANS INVOLVED DIRECTLY IN HOSTILITIES

The principle of distinction between the armed forces, who conduct hostilities on behalf of
the parties to an armed conflict, and civilians, who are presumed not to directly participate in
hostilities and must be protected from the dangers posed by military operations, underpins
International Humanitarian Law (IHL). Nonetheless, several characteristics of modern
warfare have resulted in a greater mixing of citizens and military personnel, as well as urban
combat. The ability of IHL to protect war victims and limit armed violence in times of
conflict is jeopardised by difficulties in properly discriminating between legitimate military
aims and civilian objects.

The two Additional Protocols of 1977 related to international and non-international armed
conflicts provide for the status of civilians who participate directly in hostilities.21

As a by-product of this status, such citizens lose their civilian protection throughout the
period in which they are directly involved in hostilities. Because it does not result in the
acquisition of protection granted to persons with combatant status, international humanitarian
law strives to control the implications of this loss of civilian status protection. As a corollary,
this is a dangerous hybrid position, which the two Protocols seek to limit in time and
according to the circumstances of the individuals involved. The ICRC's theory and case law
have limited the interpretation of this concept of duration (infra).

 The enemy's right to target a civilian directly participating in hostilities is

characterised as the loss of the protection offered by civilian status. Such casualties
will not be regarded illegal in and of themselves, nor will they be considered
collateral damages, requiring a calculation of the loss's proportionality to the military
benefits envisaged from the operation and the precautions taken during the attack.
19
Geneva Conventions of1977, Additional Protocol (I) Art.75.3
20
Geneva Conventions of 1977, Additional Protocol (I) Art.75.4
21
Geneva Conventions of 1977, Additional Protocol (I) Art. 45.1 & Geneva Conventions of 1977, Additional
Protocol (II) Art. 13.2
1
[AUTHOR NAME] PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR
0
  When they are unable to participate in combat due to injury, illness, or capture by
enemy armed forces, they lose the safety offered by civilian status. They will be
provided with general protection for the wounded and sick, but they will lose their
civilian status and will not be provided with combatant protection in the event of
arrest and incarceration. To fill this hole, a new category of those who have been
detained or prosecuted for reasons relating to the armed conflict has been formed.
 In terms of time, however, the loss of protection is absolutely restricted to the period
of direct engagement.

Any challenge to the protection of civilians based on any indirect form of support for or
involvement in hostilities is prohibited under international humanitarian law. The
interpretation of these concepts has begun to be clarified by international jurisprudence.

INTERNATIONAL COMMITTEE OF THE RED CROSS

The (ICRC) felt it was vital to clarify the grey area of civilians "directly participating in
hostilities," which is between the distinct categories of civilians, combatants, and armed
forces.22

Individual activity that, if carried out by civilians, suspends their protection against the
dangers posed by military operations is referred to as "direct participation in hostilities" in
International Humanitarian Law. Most significantly, civilians may be assaulted as though
they were combatants for the duration of their direct participation in hostilities. The concept
of "direct" or "active" participation in hostilities is contained in numerous rules of IHL, and it
is derived from Common Article 3 of the Geneva Conventions. Despite the grave legal
implications, neither the Geneva Conventions nor their Additional Protocols contain a
definition of what constitutes direct participation in hostilities.23

To address this issue, the ICRC began a research and expert reflection process on the concept
of "direct participation in hostilities" under IHL in 2003. The goal was to answer three
questions: who is a civilian for the purposes of conducting hostilities and, as a result, who
must be protected from direct attack "until and until they directly participate in hostilities"?
What constitutes direct participation in hostilities and, as a result, a civilian's protection from
22
Direct participation in hostilities, how do Law Protect In war, (https://casebook.icrc.org/glossary/direct-
participation-hostilities) Accessed on 12th November 2021
23
Civilian "direct participation in hostilities": overview, INTERNATIONAL COMMITTEE OF THE RED
CROSS, 29 October 2010, (https://www.icrc.org/en/document/civilian-direct-participation-hostilities) Accessed
on 13th November 2021
1
[AUTHOR NAME] PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR
1
direct attack is suspended? Finally, what rules apply when civilians are no longer protected
from direct attack?

In 2010, the International Committee of the Red Cross (ICRC) issued Interpretive Guidance
on the Notion of Direct Participation in Hostilities under International Humanitarian Law.

The ICRC standards distinguish between civilians who participate in hostilities for a limited
time and members of organised armed groups of a conflict party who do so on a long-term
basis. It is, however, ambiguous on the legal implications of this distinction, reflecting states'
unwillingness to acknowledge the existence of non-state armed organisations or grant them
legal status in armed conflict situations.

The "equal application" principle states that the laws of war apply equally to all who are
entitled to directly participate in hostilities in international armed conflicts, regardless of the
legitimacy of their causes. In today's armed conflicts and discourses, the principle, which
relies on keeping the distinction between jus ad bellum and jus in bello, confronts major
obstacles. The opposing argument – that combatants' rights and obligations under the laws of
war should be applied in a fundamentally unequal manner depending on which side is seen to
be more justified – is flawed in its logic, hard to implement effectively, and hazardous in its
consequences.24

CONCLUSION

"The underlying concept is as follows: a civilian—that is, someone who is not a combatant—
must not directly participate in hostilities...." A citizen who breaks the law and engages in
war does not lose his civilian identity, but he does not receive the protection afforded to
civilians during the time he is directly involved in hostilities. He is exposed to the same risks
of attack as a combatant, but he does not have the same rights as a combatant, such as those
afforded to a prisoner of war. True, he is a civilian, and he does not lose his civilian identity
when directly participating in hostilities. He is, nevertheless, a civilian who is acting as a
combatant. As long as he performs that duty, he is exposed to the threats that that function
involves, and he no longer has the same level of protection from assault as a civilian.

24
Adam Roberts, The equal application of the laws of war: a principle under pressure, International review of
the red cross, December 2008, (https://international-review.icrc.org/articles/equal-application-laws-war-
principle-under-pressure) Accessed on 13th November 2021
1
[AUTHOR NAME] PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR
2
Every civilian who takes direct part in hostilities once or infrequently and then detaches
himself from that activity is a civilian who is entitled to protection from assault from the time
he detaches himself from that action." He is not to be retaliated against for previous acts of
terrorism. A citizen who joins a terrorist organisation that has become his 'home,' and
conducts a series of hostilities in the course of his role in that organisation, with only brief
times of rest in between, loses his immunity from attack 'for as long as' he is doing the series
of acts.

1
[AUTHOR NAME] PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR
3
 BIBLOGRAPHY

WEBSITE

 GSDRC- https://gsdrc.org/topic-guides/international-legal-frameworks-for-
humanitarian-action/concepts/overview-of-international-humanitarian-law/
 International Committee of The Red Cross- https://www.icrc.org/en/document/what-
are-rules-of-war-Geneva-Convention
 Customary IHL Database-
https://ihldatabases.icrc.org/customaryihl/eng/docs/v1_rul_rule5
 Médecins Sans Frontières-
https://guide-humanitarian-law.org/content/article/3/civilians/
 How Do Law Protect in War- https://casebook.icrc.org/glossary/direct-participation-
hostilities

BOOKS & E-BOOKS

 Human Rights Law and Practice- Das Jatindra Kumar

 The Geneva Conventions of 12 August 1949- ICRC

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[AUTHOR NAME] PROTECTION OF CIVILIAN PERSON IN TIMES OF WAR
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