Protected persons


Protected persons is a legal term under international humanitarian law and refers to persons who are under specific protection of the 1949 Geneva Conventions, their 1977 Additional Protocols, and customary international humanitarian law during an armed conflict.
The legal definition of different categories of protected persons in armed conflicts is found in each 1949 Geneva Conventions and also in 1977 Additional Protocols. The extent of protection and obligations of belligerent states and parties depends on the type of the armed conflict as well as on the category of protected persons in terms of their age, sex, participation in the armed conflict and personal situation.
Minimum rights and fundamental guarantees are granted by the 1977 Additional Protocols I and II to the persons not covered by the 1949 Geneva Conventions, independently of the character of the conflict. Moreover, the Additional Protocol II extended the protection of existing protected persons in non-international armed conflicts.

History

In 1862 Henri Dunant published a book, A Memory of Solferino, describing his experience of the horrors of war during the Battle of Solferino. It increased the desire to improve the conditions of the wounded in armies in the field. Following the diplomatic conference inspired by his ideas and attended by the governments of Europe and several American states, the 1st Geneva Convention have been concluded in 1864 by twelve European countries.
The article 6 of this Convention already stipulated: “Wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for.”
This Convention have been replaced by the Geneva Conventions of 1906, 1929 and 1949, based on new elements occurred during the subsequent wars.

Applicable texts

In the area of international humanitarian law, four 1949 Geneva Conventions, the 1977 Additional Protocols and customary international humanitarian law are the source of the rights and protections for various categories of persons in the context of international armed conflicts, and also non international armed conflicts. These texts are focused on protection of victims of armed conflicts and they are based on one general principle: obligation of human treatment of protected persons, without discrimination on the grounds of race, sex, nationality, language, or religion.
The Hague Conventions of 1899 and 1907 are also in force, fully applicable and constitute a part of customary international law. Even before the Geneva Conventions, they already contained a number of important provisions regarding the protection of prisoners of war and civil persons.
In addition, human rights law also applies to armed conflicts and protects all individuals within the jurisdiction of the state.

Protected persons associated with the armed forces

Definition of military victim is given by the Article 13 of the 1st Geneva Convention 1949 and by the Article 4 of the 2nd Geneva Convention 1949 for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea. There are several sub-categories of military victims:
There are two types of obligations incumbent to the signatory nations under Article 12 of the 1st Geneva Convention:
In addition to that, the Additional Protocol I of the Geneva Convention establishes a unitary protection for all sick, wounded and shipwrecked independently of their military or civil status. In return, sick and wounded persons shall refrain from any hostile behaviour to benefit from this protection.
In case of necessity, belligerent powers can appeal to the charity of the civilian population. That being said, the civilian population shall only “respect these wounded and sick, and in particular abstain from offering them violence”, but at the same time can not be prosecuted and convicted “for having nursed wounded or sick”.

Prisoners of war

Legal definition of prisoners of war is given in the Article 4 of the 3rd Geneva Convention and apply to the following persons, who "have fallen into the power of the enemy":
Several type of persons has right to the treatment equal to the prisoners of war, without holding this status. In case of doubt, the concerned person has a right to the presumption of status of prisoner of war, until the exact status is established by the competent court.

Persons with special status

Four categories of persons need an additional attention:
The 3rd Geneva Convention describes in a detailed manner the protection granted to the prisoner of war and obligations incumbent upon the belligerents:
The term of protected civilian persons is described in the Article 4 of the 4th Geneva Convention. It does not protect all civilian persons in general, but only those who are "in the hands of" the adverse party during the armed conflict, “persons who at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of persons a Party to the conflict or Occupying Power of which they are not nationals”. In case of doubts, the persons is presumed to be civilian. It seems that the nationals of the countries who are not part of the 1949 Geneva Conventions are not protected by these texts, but given that the ratification is now universal and the role of the customary international humanitarian law, this limitation is no longer of practical reference. Neutral persons are not protected as long as “their State of nationality maintains normal diplomatic representation with the State in which they find themselves”.
Another definition is given by the Article 50 of the Additional Protocol I, but in a negative way – everybody, who does not belong to the armed forces or prisoners of war belongs to civilian population. Thus, persons that were not covered by the Geneva Conventions, have minimum protection. In fact, the protection of civilians was extended to the cases of war of national liberation.
The legal effect of the status depends on the category of civilian persons and their location.
The civilians can loose the protection against the attacks, if they participate in the hostilities against the enemy.

General protection of civilian persons

According to the 4th Geneva Convention, the rights of protected civilian persons are absolute and inalienable. As a consequence,
The Additional Protocol I prohibits indiscriminate attacks or reprisals against the civilian persons, their objects, and objects necessary to their survival.
There is a number of basic rights covering the civilian persons:
In case of non international armed conflict, Article 3 of Third Geneva Convention grants basic rights to civilian persons.

Civilian persons on the belligerent territory

In case the Fourth Geneva Convention is applicable, protected persons can leave the territory, unless it will be contrary to the interests of the belligerent state.
Protected person shall have the possibility to appeal against the refusal of permission to leave the territory. The proceedings shall be carried in accordance with the fair trial canons.
Several limitations could be applied to the nationals of adversary party, but they should be able to receive medical assistance, practice their religion, move from danger or military zone and find paid employment.

Civilian persons on occupied territories

Occupying powers shall respect at least the following rights:
Medical personnel benefits from the protection of all four Geneva Conventions. In fact, this category of protected persons implement the protection of protected persons established by international humanitarian law, especially wounded and sick combatants. They should not be attacked, but in contrary respected, kept out of danger and be free to pursue their medical or spiritual duties, unless they are used to commit the acts harmful to the enemy. This protection covers permanent, auxiliary medical personnel, chaplains, staff of National Red Cross Societies and other Voluntary Aid Societies, neutral state society if agreed with Parties to the conflict. Hospitals, medical transport, ships, units, and establishments are also protected and shall bear the distinctive emblems and marks.
Retained permanent personnel is not considered as a prisoners of war, but should benefit from at least the same protection. Auxiliary personnel shall be prisoners of war.

Women

The Geneva Conventions grants special protection to women in all circumstances. Wounded and sick women shall be treated taking in consideration their sex. During captivation, they should be housed in separated dormitories from men, have separate facilities, be under supervision of the women. “Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault”. Pregnant women, women in childbirth, women who are breast-feeding or who have small children less than 7 years old are considered as sick and wounded.

Children

Several provisions of the Geneva Conventions grant a special protection to the children under fifteen.
Children are protected as victims of the armed conflicts. They can benefit from special hospital and safety zones in time of peace and the outbreak of hostilities, evacuation from besieged of encircled areas. Necessary measures shall be taken in order to ensure their maintenance, exercise of the religion, education, if possible, by the persons with the same nationality. They shall benefit from the same preferential treatment as the nationals of the adversary part.
During the internment, they shall be housed separately from the adults, unless with their parents and family members. Additional food shall be given taking in consideration their physiological needs.
Also, children are protected as children-combatants. The parties of the conflict shall avoid to use them in hostilities. In case of their participation, children continue to benefit from the special protection. Death penalties shall not be executed for persons under 18 years old.

Protection during non-international armed conflicts

Increasing number of non-international armed conflicts have been noticed after the Second World War. Theses conflicts are characterised by two factors:
As a consequence, the main goal of the international humanitarian law is not the protection of civilians, but the protection of all non-participants of the conflict.
Humane treatment is granted by the common article 3 of the Geneva Conventions. It forbids:
The Additional Protocol II completes the article 3 of the Geneva Conventions adds several forbidden actions and grants to protected persons the rights to "respect for their person, honour and convictions and religious practices".
Children continue to benefit from special protection.
Additional Protocol II also prohibits the forced movements of civilians.

Relation between the end of the armed conflict and protection

It becomes more difficult to determine the end of the armed conflict in the contemporary world, and as a consequence, the application of international humanitarian law in general and to protected persons in particular. Wars in contemporary world rarely end with a total defeat or by real peace. However, under all circumstances, protected persons remain protected by the minimum guarantees and by international human rights law.

Sanctions

Penal sanctions are foreseen in the Geneva Conventions for persons who committed or ordered to commit grave breaches against protected persons. The grave breaches are qualified as a sub-type of war crimes.