International Humanitarian

Law
UNIT 3: PROTECTED PERSONS UNDER IHL

- Jasuda Gurung, Lecturer (Prithivi Narayan Campus, Pokhara)

 Protected Persons under IHL

What is the meaning of a protected person?

 The term ‘protected person’ means any person entitled to protection under
one or more of the Geneva Conventions, including civilians not taking an
active part in hostilities, military personnel placed out of combat by
sickness, wounds, or detention, and military medical or religious personnel.
 IHL protects a wide range of people and objects during armed conflict.
 The Geneva Conventions and their Additional Protocols protect sick,
wounded and shipwrecked persons not taking part in hostilities, prisoners of
war and other detainees, civilians and civilian objects.
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 It protects all victims of armed Conflict, including both civilians and

combatants who have laid down their arms.
 The nature of the protection it provides varies and is determined by
whether the person in question is a combatant or a civilian.
 Wounded Sick and Shipwrecked Protected
under IHL

 Protecting the sick and wounded in armed conflict was the founding
principle of the First Geneva Convention signed in 1864.
 It remained the core of IHL as it extended to other aspects of the conduct
of war, now consolidated in the Geneva Conventions of 1949, three
Additional Protocols, and a series of other treaties.
 The First Geneva Convention was inspired by the experiences of Henry
Dunant, a citizen of Geneva, on the battlefield of Solferino in 1859.
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 His horror at the suffering of the sick and wounded led him to publish A
Memory of Solferino and mobilize a group of colleagues to press for
international action.
 The result was the First Geneva Convention, signed by just 12 States. The
organizing committee set up by Dunant and his colleagues was to become the
International Committee of the Red Cross.
 Today the four Geneva Conventions of 1949 have achieved universal
recognition and have been ratified by every State.
 The protection of the sick and wounded is now consolidated in the First and
Second Geneva Conventions of 1949 and the Additional Protocols I and II of
 Field of application of the two Conventions and
the Protocol
 Generally speaking, the Second Geneva Convention of 12 August 1949
is almost identical with the First.
 The main difference between the two is that the second concerns the
wounded, sick and shipwrecked members of armed forces at sea while
the first relates to the wounded and sick in armed forces in the field.
 Otherwise, the principles underlying the two Conventions are identical
and the same rules apply to protected persons and property, taking into
account the different conditions prevailing on land and at sea.
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 The First and Second Geneva Conventions limited its protection to

wounded, sick and shipwrecked members of the armed forces.
 It was only with the adoption of Additional Protocols I and II of 1977 that
the concepts of ‘wounded’, ‘sick’ and ‘shipwrecked’ were finally defined
as in including all persons irrespective of their military or civilian status.
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According to Additional Protocol I:

 ‘Wounded and sick’ is defined as anyone in an armed conflict, whether
military or civilian, who is in need of medical attention and is not taking
part in hostilities. These terms also cover maternity cases, new born babies
and other persons who may be in need of immediate medical assistance or
care. [Art. 8(a) of AP I]
 ‘Shipwrecked’ means military or civilian persons in a perilous situation at
sea or on any other waters following a misfortune which has befallen them
and who refrain from any act of hostility. [Art.8(b) of AP I]
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 The central principle is that “all wounded, sick and shipwrecked, to whichever
party they belong, shall be respected and protected.” [Art. 10 Para 1 of AP I]
 Appropriate medical attention has to be provided as quickly as possible and
without any distinction between military or civilian, friend or foe.
 There shall be no distinction between them on any other grounds. Women shall be
treated with all the particular consideration due to their sex.
 Wounded, sick and shipwrecked combatants who are captured become prisoners
of war.
 Until their recovery or their disembarkation they will benefit from the provisions
of Conventions I or II and III.
 Search for the wounded, dead and missing

 The general principle governing this section is, first and foremost, the right
of families to know the fate of their relatives. [Art. 32, Para. 1, of AP I]
 At all times, and particularly after an engagement, Parties to a conflict must
immediately take all possible measures to search for and collect the
wounded, sick and shipwrecked, to protect them against pillage and ill-
treatment and ensure their adequate care, as well as to search for the dead
and prevent their being despoiled. [Art. 15 of GC I; Art. 18 of GC II; Art. 16
of GC IV]
 Protection of persons
[Art. 11 of AP I]

 The physical or mental health and integrity of persons who are in the power of
the adverse Party or who are interned, detained or otherwise deprived of liberty
as a result of a situation referred to in Article 1 shall not be endangered by any
unjustified act or omission.
 Accordingly, it is prohibited to subject the persons described in this Article to
any medical procedure which is not indicated by the state of health of the person
concerned and which is not consistent with generally accepted medical
standards which would be applied under similar medical circumstances to
persons who are nationals of the Party conducting the procedure and who are in
no way deprived of liberty.
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It is prohibited to carry out on such persons, even with their consent:

a. Physical mutilations;
b. Medical or scientific experiments;
c. Removal of tissue or organs for transplantation,
 Exceptions: In the case of donations of blood for transfusion or of skin for
grafting, provided that they are given voluntarily and without any coercion or
inducement, and then only for therapeutic purposes, under conditions
consistent with generally accepted medical standards and controls designed
for the benefit of both the donor and the recipient.
 Civilian Population or People not Taking Part in
the Hostility

 In an international armed conflict, all persons who are not combatants are
civilians. Persons with civilian status may not be directly targeted in attacks.
 The concept of the civilian in non-international armed conflict: All persons
who are not members of State armed forces or organized armed groups of a
party to the conflict are civilians. The civilian population is made up of
civilian persons.
 Thus, civilian is a ‘person who does not belong to any fighting group and
who does not take part in hostilities’.
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Combatants:
 In a generic sense, combatants are members of the fighting forces of the
belligerent parties.
 Therefore, all members of the armed forces of a party to an international
armed conflict are combatants, except medical and religious personnel
assuming exclusively humanitarian functions. [Art. 43(2) of AP-I]
 The only weapon-bearers who may be regarded as combatants without being
members of the armed forces are participants in a levee en mass. [Art. 2 of
Hague Regulations]
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 Persons fighting outside these categories, such as mercenaries or civilians

taking a direct part in hostilities, are not entitled to combatant status.

Members of the armed forces:

 The armed forces of a conflict comprise ‘all armed forces, groups, and
units which are under a command responsible to that party for the conduct
of its subordinates.
 This broad and functional concept of armed forces has evolved since the
adoption of the Hague Regulations.
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 Art. 1 of Hague Regulations laid down FOUR conditions assimilating to

regular armed force:
1. They were commanded by a person responsible for his subordinates;
2. They has a fixed distinctive emblem recognizable at a distance;
3. They carried arms openly; and
4. They conducted their operations in accordance with the laws and
customs of war.
 The requirements of visible distinction from civilian population and
respect for IHL have become individual obligations.
 Definition of Civilians and civilian population

 In IHL, the civilian population is negatively defined as comprising all

persons who are neither members of the armed forces of a party to the
conflict not participants in a levee en masse. [Art. 50 (1) and (2) of AP-I]
 Thus, the definition also includes civilians accompanying the armed forces
without being incorporated therein, such as war correspondents and, as
general rule, private contractors and civilian intelligence or law
enforcement personnel, even if some of them may be entitled to prisoner
of war status upon capture.
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 On the other hand, as has been shown, all armed forces, groups and units
showing a sufficient degree of military organization and operating de facto
on behalf of and with the agreement of a party to conflict must be regarded
as part of armed forces and therefore do not qualify as a civilians.
 And if there is any doubt about person’s civilian status, that person must
be considered a civilian.
 Thus, any person who is not a member of armed forces is considered to be
a civilian and ‘the civilian population comprises all persons who are
civilians’.
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 All persons participating in military operations or activities are considered

combatants. Those who do not participate in such actions are non-
combatants. Civilians are included in the category of non-combatants.
 Unlawful combatants are persons who participate in hostilities without
authorization of the belligerent authority, including persons who are
neither members of the armed forces nor of a militia.
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 Itis important to distinguish members of State armed forces or organized

armed groups from civilians.
 According to the ICRC's Interpretive Guidance, all persons who are not
members of State armed forces or of organized armed groups belonging to
a party to an armed conflict are civilians and, therefore, are protected
against direct attack unless and for such time as they directly participate in
hostilities.
 Specific Protections
(Art. 51 of AP-I)

 a) Direct attacks: the most direct emanation of the principle of distinction

is, of course, the prohibition of direct attacks against civilians. It is
important to note that, in IHL, the word attacks refers not only to offensive
operations, but includes all acts of violence against the adversary, whether
in offence or in defense.
 b) Act of terror: while it is clear that any military operation affecting
civilians is likely to induce a certain amount of fear and anxiety among the
civilian population, IHL prohibits acts or threats of violence the primary
purpose of which is to spread terror among the civilian population.
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 c) Indiscriminate attacks: Apart from direct attacks against civilians, IHL also
prohibits indiscriminate attacks. These are attacks which are of nature to
strike military objectives and civilians and civilian objects without
distinction, whether because they are not or cannot be directed at a specific
military objective or because their effects cannot be limited as required by
IHL.
 d) Human shields: IHL also prohibits belligerent parties from using civilians
as ‘human shields’. Accordingly, it is prohibited to use the presence or direct
the movement of the civilian population or individual civilians in order to
attempt to shield military objectives from attack.
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 e) Non-reciprocity and prohibition of attacks by way of reprisal: All of the

above mentioned prohibitions are non-reciprocal in that their violation by
the enemy does not release belligerent parties from their own obligations
with respect to the civilian population. In particular, it is prohibited to
attack civilians by way of reprisal.
 Civilian Participation in hostilities

 Basic rule: In situations of armed conflict, civilians are entitled to protection

against direct attack ‘unless and for such time as they take a direct part in
hostilities’. In other words, for the duration of their direct participation in
hostilities, civilians may be directly attacked as if they were combatants.
 Meaning of ‘direct participation in hostilities’: Persons participate directly in
hostilities when they carry out acts, which aim to support one party to the
conflict by directly causing harm to another party, either directly inflicting
death, injury or destruction, or by directly harming the enemy's military
operations or capacity. If and for as long as civilians carry out such acts, they
are directly participating in hostilities and lose their protection against attack.
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 Examples of causing military harm to another party include capturing,

wounding or killing military personnel; damaging military objects; or
restricting or disturbing military deployment, logistics and communication,
for example through sabotage, erecting road blocks or interrupting the power
supply of radar stations. Interfering electronically with military computer
networks (computer network attacks) and transmitting tactical targeting
intelligence for a specific attack are also examples. The use of time-delayed
weapons such as mines or booby-traps, remote-controlled weapon systems
such as unmanned aircraft, also " directly " causes harm to the enemy and,
therefore, amounts to direct participation in hostilities.
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 Not all violent acts occurring in an armed conflict amount to direct

participation in hostilities. In order to constitute direct participation, a violent
act must not only be objectively likely to directly cause harm, but it must also
be specifically designed to do so in support of one party to an armed conflict
and to the detriment of another.
 A violent political demonstrations, a bank robbery unrelated to the war, or an
incident where large numbers of fleeing civilians block a road, not to help one
party to an armed conflict but to try to protect themselves from the hostilities,
are examples of acts that do not amount to direct participation in hostilities.
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 ‘Indirect’ participation in hostilities contributes to the general war effort of a

party, but does not directly cause harm and, therefore, does not lead to a loss
of protection against direct attack.
 This would include, for example, the production and shipment of weapons,
the construction of roads and other infrastructure, and financial,
administrative and political support.
 The difference between ‘direct’ and ‘indirect’
participation can be difficult to establish but is vital

 For example, the delivery by a civilian truck driver of ammunition to a

shooting position at the front line would almost certainly have to be
regarded as an integral part of ongoing combat operations and would
therefore constitute direct participation in hostilities.
 However, transporting ammunition from a factory to a port far from a
conflict zone is too incidental to the use of that ammunition in specific
military operations to be considered as ‘directly’ causing harm. Although
the ammunition truck remains a military objective subject to attack, driving
it would not amount to direct participation in hostilities and, therefore, the
civilian driver could not be targeted separately from the truck.
 The relevance of Status in the context of
detention

 In the situations of international armed conflict, the two categories of

person deprived of their liberty that benefit from a distinct status are
prisoners of war and persons protected under the 4 th Geneva Convention.
 IHL governing international armed conflicts affords combatant status to
only two categories of person:
a. Members of the armed forces of a party to an international conflict,
except medical and religious personnel, and
b. Participants in a levee en mass.
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 Persons involved in the fighting who fall outside these two categories,
such as mercenaries or civilians taking a direct part in hostilities, are not
entitled to combatant status.
 Combatants who have fallen into the power of an adverse party to a
conflict are prisoners of war, regardless of whether they are members of
the regular or irregular armed forces or participants in a levee en masse.
 Prisoners of War (PoWs)

 For most of human history, in times of armed conflict, fighters falling into
the hands of their enemy have been taken captive.
 In international armed conflict, such persons are known as Prisoner of
war (PoWs) and have always been particularly vulnerable to abuse, due to
their affiliation with the enemy and the fact that their captivity usually
occurs against the backdrop of wartime animosity.
 Fortunately, the status of PoWs has drastically evolved over time and we
are far from the era when the expected outcome for captured soldiers was
either execution or enslavement.
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 In the 19th century, there were efforts to improve the treatment of PoWs.
 Then, in 1929, building on the agreements between countries to protect
PoWs during the 1st World War, States adopted a Geneva Convention on
PoWs.
 It was the 1st multilateral treaty aimed specifically at protecting PoWs, and
was the precursor to the 1949 Third Geneva Convention on PoWs (GC
III).
 Who qualifies as a prisoner of war?

 PoWs are members of the armed forces who have fallen into enemy hands.
 PoW status is only legally recognized for international armed conflicts
fought between States.
 There is no PoW status in non-international armed conflicts, sometimes
referred to as ‘Civil Wars’.
 PoW status is regulated by the Third Geneva Convention and Additional
Protocol I.
 What kind of treatment are PoWs entitled to?

 PoWs cannot be held in cells or other forms of close confinement (except

in connecting with a criminal process or disciplinary sanctions).
 They can however, be housed (interned) in camps to prevent their return to
the battlefield.
 They must be released and repatriated without delay at the end of active
hostilities.
 Throughout their internment, PoWs must be treated humanely and with
‘respect for their person and their honour.’ (Art. 13 n 14)
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 They cannot be subjected to coercive interrogation, and IHL sets out

minimum conditions of internment for PoWs addressing issues such as
accommodation, food, clothing, hygiene and medical care. (Art. 25-28)
 PoWs cannot be subjected in insult or exposure to public curiosity. To
protect their dignity and safety, their images and personal information
must not be publicized.
 PoWs camps must be situated at a safe distance from the combat zone.
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 PoWs must be able to maintain relations with the outside world, especially
with their families and friends. They have the right to correspond with
them through letters and messages.
 They shall enjoy complete latitude in the exercise of their religious duties,
including attendance at the service of their faith, on condition that they
comply with the disciplinary routine prescribed by military authorities.
(Art. 34)
 PoWs must receive adequate medical attention. (Art. 30)
 How long can PoWs be held?

 It depends. As a general rule, PoWs must be released and repatriated without

delay at the end of active hostilities.
 Certain PoWs might be detained longer than the hostilities last if, for
example, if they are serving a criminal sentence.
 Even if held after the conflict ends, PoWs do not lose their status or their
protection under GC III until their final release and repatriation.
 PoWs can refuse such repatriation if they may have reason of fear
persecution, torture or death on account of their race, religion, nationality or
political opinion. The principle of not-refoulement applies.
 Can PoWs be prosecuted in Court?

 Combatants (especially, members of the armed force exclusion medical

and religious personnel) have the right to participate in hostilities; so when
they are in the hands of the enemy (i.e. PoWs), they are not immune from
prosecution for certain acts, including violations of IHL, especially serious
ones amounting to war crimes.
 When PoWs are charged with crimes, they are entitled to due process and
a fair trial. They do not lose their status as PoWs, and they retain their
protection under the 3rd Geneva Convention until their final release and
repatriation.
 What is the role of the ICRC in protecting
PoWs?

 The Third Geneva Convention grants the ICRC the right to go wherever
PoWs might be found and conduct interviews with them.
 ICRC visits to internment camps help ensure that the treatment of PoWs and
their conditions of internment are compliant with IHL. (Art. 9)
 The GC-III gives the ICRC Central Tracing Agency a specific role to collect
and centralize information on the fate and whereabouts of PoWs dead or
alive, for onward transmission to the parties and to the families.
 This system helps prevent missing cases by accounting for those in enemy
hands and providing information to their families in a dignified manner.
 Where did the ICRC start to be involved in the
protection of PoWs?

 During the conflict, it served as an information and relief bureau for

PoWs.
 The core of their mandate is to offer protection and relief to PoWs, and
also to civilian internees and displaced populations.
 Medical Personnel

 The term ‘medical personnel’ refers to personnel assigned, by a party to

the conflict, exclusively to the search for, collection, transportation,
diagnosis or treatment, including first-aid treatment, of the wounded, sick
and shipwrecked, and the prevention of disease, to the administration of
medical units or to the operation or administration of medical transports.
 Such assignments may be either permanent or temporary.
 They shall be respected and protected under all circumstances.
 If they fall into the hands of the enemy they shall not be treated as
prisoners of war.
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 The First Convention created the red cross emblem to identify protected
medical personnel and objects on the battlefield.
 A deliberate attack on personnel, buildings or transport clearly carrying
one of the protective signs constitutes a war crime.
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The term medical personnel includes:

i. Medical personnel of a party to the conflict, whether military or civilian;
ii. Medical personnel of National Red Cross or Red Crescent Societies and
other voluntary aid societies duly recognized and authorized by a party to
the conflict, including the ICRC;
iii. Medical personnel made available to a party to the conflict for
humanitarian purposes by a neutral or other State which is not a party to
the conflict.
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 The term military medical personnel refers to medical personnel who are
members of the armed forces.
 The term civilian medical personnel refers to medical personnel who are not
members of the armed forces but who have been assigned by a party to the
conflict exclusively to medical tasks.
 IHL affords special protection to medical property and personnel whose
mission is to save lives and provide health care for civilians and combatants.
 Its rules and provisions obligate fighting parties to take all necessary
measures to protect and respect medical missions in all circumstances.
 Respect for and protection of medical
personnel
 Personnel exclusively assigned to medical duties must be respected and
protected in all circumstances. [Arts. 24 and 25 of GC-I; Art.15(1) of AP-I]
 Medical personnel may not be directly attacked, threatened, or
unnecessarily prevented from discharging their proper functions, but also
that they and their particular role must be actively protected and supported
by the belligerents.
 The duty to respect and protect medical personnel is not a personal
privilege but a derivative of the protection afforded to the wounded, the
sick and the shipwrecked.
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Additional Protocol I
 Article 15(1) of the 1977 Additional Protocol I provides: “Civilian medical
personnel shall be respected and protected.
Additional Protocol II
 Article 9(1) of the 1977 Additional Protocol II provides: “Medical
personnel shall be respected and protected and shall be granted all
available help for the performance of their duties.
 Loss of protection of medical personnel

 Military manuals and national legislation emphasize that medical

personnel who engage in hostile acts lose the specific protection to which
they are entitled.
 As the duty to respect and protect medical personnel is not a personal
privilege but a derivative of the protection afforded to wounded, the sick
and the shipwrecked.
 Therefore, medical personnel lose their special protection if they commit,
outside their humanitarian function, acts harmful to the enemy. [Art.21 of
GC-I; Art. 13 of AP-I]
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 Additional Protocol II provides for the loss of protection in case they are
used to commit “hostile acts, outside their humanitarian function”.
 In general, taking a direct part in hostilities, in violation of the principle of
strict neutrality and outside the humanitarian function of medical
personnel, is considered an act harmful to the enemy.
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 On the other hand, treaty IHL also provides a non-exhaustive list of

examples of conduct or circumstances that may not be regarded as acts
harmful to the enemy, namely:
 That the personnel of the unit are armed with light individual weapons,
and they use such weapons for their own defense or for that of the
wounded and sick in their charge;
 That the unit is guarded by a picket, by sentries or by an escort;
 That small arms and ammunition taken from the wounded and sick and
not yet handed to the proper service, are found in the units;
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 Thatmembers of the armed forces or other combatants are in the unit

for medical reasons;
 That personnel and material of the veterinary service are found in the
unit, without forming an integral part thereof;
 Thatthe humanitarian activities of military medical units or of their
personnel extend to the care of civilian wounded or sick.
 Equipment of medical personnel with light
individual weapons
 In safeguarding the medical mission for the benefit of the wounded, the sick
and the shipwrecked, IHL protects not only medical personnel, but also
medical facilities, transports, equipment and supplies used for medical
purposes.
 State practice indicates that the protected status of medical personnel does not
cease if they are equipped with light individual weapons solely to defend their
patients or themselves against acts of violence, for example, against
marauders.
 If they use such weapons in combat against enemy forces acting in conformity
with the law of war, notably to resist capture, they forfeit their protection.
 Status upon Capture

 Medical personnel who have fallen into the hands of an adverse party are
not to be as prisoners of war irrespective of whether they are civilians or
members of the armed forces. [Art. 28(2) of GC-I]
 Medical personnel of enemy nationality may be retained to the extent
required to meet the medical needs of prisoners of war, but must be
released as soon as their services are no longer indispensable for that
purpose. [Art. 28(1), (3) and Art. 30(1) of GC-I; Art. 37 of GC-II]
 As long as they are retained, such personnel are entitled, as a minimum, to
the same benefits and protection as Prisoners of War.
 Respect for and protection of medical
personnel

Treaties
1. Geneva Convention (1864)
Article 2 of the 1864 Geneva Convention provides: Hospital and ambulance
personnel, including the quarter-master’s staff, the medical, administrative
and transport services shall have the benefit of the same neutrality [as
military hospitals and ambulances] when on duty, and while there remain any
wounded to be brought in or assisted.
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2. Geneva Convention (1906)

Article 9 of the 1906 Geneva Convention provides: The personnel charged
exclusively with the removal, transportation, and treatment of the sick and
wounded, as well as with the administration of sanitary formations and
establishments shall be respected and protected under all circumstances. If
they fall into the hands of the enemy they shall not be considered as
prisoners of war.
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3. Geneva Convention (1929)

Article 9 of the 1929 Geneva Convention provides: The personnel engaged
exclusively in the collection, transport and treatment of the wounded and
sick, and in the administration of medical formations and establishments,
shall be respected and protected under all circumstances. If they fall into the
hands of the enemy they shall not be treated as prisoners of war.
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4. Geneva Convention I
Article 24 of the 1949 Geneva Convention I provides: Medical personnel
exclusively engaged in the search for, or the collection, transport or treatment
of the wounded or sick, or in the prevention of disease, staff exclusively
engaged in the administration of medical units and establishments shall be
respected and protected in all circumstances
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5. Geneva Convention II
Article 36 of the 1949 Geneva Convention II provides that ‘medical and
hospital personnel of hospital ships and their crews shall be respected and
protected’.
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6. Geneva Convention IV
Art. 20, para 1 of the 1949 Geneva Convention IV provides: Persons
regularly and solely engaged in the operation and administration of civilian
hospitals, including the personnel engaged in the search for, removal and
transporting of and caring for wounded and sick civilians, the infirm and
maternity cases, shall be respected and protected.
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7. Additional Protocol I
 Article 8(c) of the 1977 Additional Protocol I defines medical personnel as
“those persons assigned, by a Party to the conflict, exclusively to medical
purposes or to the administration of medical units or to the operation or
administration of medical transports”.
 It adds that “such assignments may be either permanent or temporary”.
 The definition covers both military and civilian medical personnel.
 Article 8(c)(ii) requires that personnel of aid societies be duly recognized
and authorized by a party to the conflict.
 Protection of women and children during armed
conflicts under IHL

 Armed conflict is a situation where a person’s life is completely changed.

 Their legal, as well as human rights, are violated to a great extent.
 Civilians, not fighters, account for the majority of casualties, and women
and children are particularly vulnerable and abused among civilians.
 Food supply, production, health services, transportation, water, and fuel are
all disrupted by war.
 IHL is such a rule which protects those people (especially women and
children) who are not directly involved in the war but are affected by it.
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 There are various conventions and protocols which are added in IHL for
the protection of these vulnerable categories.
 Human rights law, refugee law, and humanitarian law are three aspects of
modern international law that try to give protection to war victims.
 Role of IHL in the protection of Women

 Without discrimination based on gender, IHL tries to prevent and alleviate human
suffering in times of conflict.
 It does, however, acknowledge that women suffer unique challenges in an armed
conflict, such as sexual assaults and health dangers.
 War is not between two parties rather its impact can affect the whole civilian
community.
 Fighting has a significant influence on women in today’s wars.
 Humanitarian law recognizes this in the broad protection it provides to both men
and women, as well as in certain particular provisions that provide women with
particular protection.
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 IHL demands that the injured and ill, as well as captives and civilians,
caught up in a battle, be treated humanely, with no “adverse distinction”
based on sex, ethnicity, nationality, religion, political beliefs, or other
factors.
 The four Geneva Conventions 1949 and their Additional Protocols (1977),
as well as customary humanitarian law, give this broad protection.
 There are also special safeguards in place for female prisoners of war, such
as the establishment of separate holding rooms for female captives.
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 Rape and other types of sexual assault against women are expressly
prohibited under IHL, and all of them may be considered war crimes.
 Furthermore, the requirements of expecting mothers and mothers with
small children, particularly nursing moms, who require specific attention,
must be met.
 Protected under Geneva Treaties
(Women)

 Quarters: Art. 25 of GC-III of 1949 provides: In any camps in which women

prisoners of war, as well as men, are accommodates, separate dormitories
shall be provided for them.
 Hygiene: Art. 29(2) of GC-III provides: In any camps in which women
prisoners of war are accommodated, separate conveniences shall be provided.
 Execution of punishment: Art 97 and 108 of GC-III provides: Women
prisoners of war undergoing disciplinary punishment shall be confined in
separate quarters from male prisoners of war and shall be under the
immediate supervision of women.
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 Protection of women: Art. 76 of AP-I of 1977 provides:

i. Women shall be the object of special respect and shall be protected in
particular against rape, forced prostitution and any other form of indecent
assault. [Also under Art. 27(2) of GC-IV]
ii. Pregnant women and mothers having dependent infants who are arrested,
detained or interned for reasons relating to the armed conflict, shall have their
cases considered with the utmost priority.
iii. To the maximum extent feasible, the parties to the conflict shall endeavour to
avoid the pronouncement of the death penalty on pregnant women or mothers
having dependent infants, for an offence relating to armed conflict. The death
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 Medical attention: Art. 91 para. 2 of GC-IV provides: Maternity cases must

be admitted to any institution where adequate treatment can be given and
shall receive care not inferior to that provided for the general population.
 Basic Rule: Art. 48 of GC-IV of 1949 provides: In order to ensure respect
for and protection of the civilian population and civilian objects, the parties
to the conflict shall at all times distinguish between the civilian population
and combatants and between civilian objects and military objectives and
accordingly shall direct their operations only against military objectives.
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 Fundamental guarantees: Art. 4(2)(e) of AP-II of 1977 provides: It is

prohibited to outrages upon personal dignity, in particular humiliating and
degrading treatment, rape, enforced prostitution and any form of indecent
assault.
 Role of IHL in the protection of Children

 In armed conflicts, children are particularly vulnerable.

 Even though they are protected by the law, armed forces and armed
organizations continue to recruit them.
 They are frequently separated from their families, forcibly removed from
their homes, murdered, wounded, sexually assaulted, or exploited in
various ways.
 As civilians or combatants, children in conflict enjoy the universal
protection of IHL.
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 There are various situations in which children take part in wars and
conflicts but they are also in support duties, such as transporting supplies
or supplying military information, putting them in grave danger but the
additional protocols of the Geneva Convention were the first treaty to
provide some rules to tackle such situations.
 The rules make it illegal for children under the age of 15 to be recruited or
participate in hostilities.
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 The first Additional Protocol also mandates military recruitment of 15 to 18-

year-olds to be prioritized in international armed conflicts.
 The 15-year-old age restriction was incorporated in the
1989 Convention on the Rights of the Child, which has near-universal approval.
 In May 2000, an optional protocol to this Convention raised the required
recruitment age to 18 and urged States to raise the minimum age for voluntary
recruitment to at least 15.
 Armed organizations should not utilize minors under the age of 18 under any
circumstances, it said, and states should make such acts illegal.
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 Children who are not participating in an armed conflict confront a variety of threats
against which IHL and associated children’s rights provisions offer specific
protection.
 They are given non-combatant protection in general, but the Geneva Conventions
and 1977 Protocols acknowledge their unique needs for medical assistance, food,
housing, and clothing.
 Orphaned or separated children must be found, safeguarded, and given particular
facilities to assure their physical protection.
 Their educational requirements must also be met. Simultaneously, all necessary
actions must be done to enable the reunification of families who have been separated
for a while.
 Protected under Geneva Treaties
(Children)

 Fundamental guarantees: Art 4(3) of AP-II of 1977 provides: Children shall

be provided with the care and aid they require, and in particular:
 (a) They shall receive an education, including religious and moral education,
in keeping with the wishes of their parents, or in the absence of parents, of
those responsible for their care;
 (b) All appropriate steps shall be taken to facilitate the reunion of families
temporarily separated;
 (c) Children who have not attained the age of 15 years shall neither be
recruited in the armed forces or groups nor allowed to take part in hostilities;
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 (d) The special protection provided by this Article to children who have not
attained the age of 15 years shall remain applicable to them if they take a direct
part in hostilities despite the provisions of sub-paragraph (c) and are captured;
 (e) Measures shall be taken, if necessary, and whenever possible with the consent
of their parents or persons who by law or custom are primarily responsible for
their care, to remove children temporarily from the area in which hostilities are
taking place to a safer area within the country and ensure that they are
accompanied by persons responsible for their safety and well-being.
 Protection under Convention on the Rights of
the Child (1989)
Article: 38
 1. States Parties undertake to respect and to ensure respect for rules of IHL
applicable to them in armed conflicts which are relevant to the child.
 2. States Parties shall take all feasible measures to ensure that persons who
have not attained the age of 15 years do not take a direct part in hostilities.
 3. States Parties shall refrain from recruiting any person who has not attained
the age of 15 years into their armed forces. In recruiting among those persons
who have attained the age of 15 years but who have not attained the age of 18
years, States Parties shall endeavour to give priority to those who are oldest.
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 4. In accordance with their obligations under IHL to protect the civilian

population in armed conflicts, States Parties shall take all feasible
measures to ensure protection and care of children who are affected by an
armed conflict.
 Role of IHL in the protection of refugees

WHO IS A REFUGEE?
 Article 1 of the Convention Relating to the Status of Refugees, as modified
by the 1967 Protocol, defines a 'refugee' as any person who “owing to
well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is
outside the country of his nationality and is unable or, owing to such fear,
is unwilling to avail himself of the protection of that country”
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 The Convention Governing the Specific Aspects of Refugee Problems in

Africa (1969) and the Cartagena Declaration (1984) on refugees have
adopted a broader definition that includes people fleeing events that
seriously disrupt public order, such as armed conflicts and other situations
of violence.
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 Refugees are people who have crossed an international frontier and are at risk, or
have been victims, of persecution in their country of origin.
 Refugees are protected by refugee law [mainly the Convention Relating to the
Status of Refugees (1951) and the Convention Governing the Specific Aspects of
Refugee Problems in Africa (1969)] and human rights law, and particularly by the
principle of non-refoulement.
 They fall under the mandate of the Office of the United Nations High
Commissioner for Refugees (UNHCR).
 Refugees are also protected by IHL when they are in a State involved in an armed
conflict.
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 Refugees receive, besides the general protection afforded to civilians by

IHL, special protection under the Fourth Geneva Convention and
Additional Protocol I.
 For instance, Article 44 of the Fourth Geneva Convention specifies that
Detaining Powers should not treat refugees as enemy aliens who do not, in
fact, enjoy the protection of any government.
 Article 73 of Additional Protocol I adds that refugees must be regarded as
protected persons in all circumstances and without any adverse distinction.
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