Even in wartime, nobody goes unprotected – by Jonathan Crowe

International humanitarian law: protection afforded to participants in armed conflict

photo credit: DVIDSHUB via Flickr cc

This World Humanitarian Day, it is timely to remember that even wars have limits. International Humanitarian Law protects everyone involved in armed conflict, regardless of their status. There are multiple tiers of protection, designed to ensure that nobody falls outside the reach of the law.

Prisoner of war status

The international law of armed conflict centres on the four Geneva Conventions of 1949, which have been ratified by all recognised states, and their two Additional Protocols of 1977. Geneva Convention III relates to prisoners of war: that is, privileged combatants captured by opposing forces.

Article 4 of Geneva Convention III sets out the classes of people who are entitled to prisoner of war status. The main category is members of the regular armed forces of a party to the conflict. Members of organised militias are also entitled to prisoner of war status, provided that they bear arms openly and wear a uniform or other distinctive sign. A similar (although slightly wider) definition of combatant status appears in Additional Protocol I.

The benefits of prisoner of war status under Geneva Convention III are extensive and detailed. However, prisoner of war status is far from the only form of protection afforded to participants in armed conflict.

Protected persons

Some fighters might not qualify as combatants under Geneva Convention III, if the armed group to which they belong is not organised enough or they do not carry arms openly and distinguish themselves from the civilian population. These types of fighters are sometimes called ‘unprivileged belligerents’ due to their lack of prisoner of war status.

However, it would be wrong to think that unprivileged belligerents are entirely unprotected by international humanitarian law. Protection under the law of armed conflict is not an all or nothing proposition. Rather, international humanitarian law has multiple layers of protection; if you do not qualify for one layer, you may fall within the next.

There are at least two additional layers of protection available to captured fighters who do not benefit from Geneva Convention III. The first is Geneva Convention IV, which protects civilians or other persons who fall into the hands of a party to a conflict of which they are not nationals. Detainees who are ‘protected persons’ under Geneva Convention IV enjoy guarantees equivalent in many respects to those afforded to prisoners of war.

Fundamental guarantees

What about fighters or other detainees who find themselves in the hands of their own nation or an allied power? These people are not covered by the protected persons regime of Geneva Convention IV, but they are still able to rely on the fundamental guarantees found in Common Article 3 of the Geneva Conventions. This article appears identically in each of the four conventions. It sets out the basic rights guaranteed to all persons not actively engaged in combat, including captured and wounded fighters.

Common Article 3 is directed at non-international armed conflicts, but it is generally viewed as setting out the minimum rights applicable in all forms of warfare. These rights include protections against torture and ill treatment, as well as procedural guarantees. For example, the article prohibits the passing of sentences without judgment by ‘a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples’.

A more extensive list of fundamental rights is contained in Article 75 of Additional Protocol I. Not all nations are parties to this treaty, but it is likely that many of its protections are enshrined in customary international law. Together, these provisions represent the minimum level of protection to which everyone is entitled in times of war, even ‘unprivileged belligerents’.

Nobody is unprotected

It is occasionally suggested that these basic tenets of international humanitarian law do not apply to people who provide support for terrorism. However, there is no basis for this in the treaties. The closest we get is the security based exceptions contained in Geneva Convention IV, but even those provisions are subject to express guarantees of humane treatment and procedural justice.

Nor is there any scope to argue that the conventions did not anticipate the use of terrorism in warfare. Terrorism in wartime is hardly a recent phenomenon. Indeed, it is explicitly mentioned and condemned in Geneva Convention IV, as well as both Additional Protocols. A strong case can be made that terrorists, like other people caught up in warfare, should be afforded at least the basic level of protection set out in the provisions discussed above.

This is as it should be. The whole point of international humanitarian law is to serve as the last ditch hold out position of humanity against arbitrary violence. This body of law exists to emphasise that, even in wartime, all people have rights by virtue of their human dignity. It is only by respecting these rules that participants in warfare can hold open the prospect of a lasting peace based on mutual respect for human values.

Jonathan CroweJonathan Crowe is an Associate Professor in the T. C. Beirne School of Law at the University of Queensland. His research centres on the philosophical relationship between law and ethics. He has published widely on natural law theory and existentialist ethics, particularly the work of Emmanuel Levinas. He has also published research on international humanitarian law, constitutional law, criminal law, family law, corporations law and alternative dispute resolution. His work has appeared in leading international journals, including the Modern Law Review, the Oxford Journal of Legal Studies and the Journal of the British Society for Phenomenology. He is co-author with Kylie Weston-Scheuber of Principles of International Humanitarian Law (Edward Elgar, 2013).

Principles of International Humanitarian Law

Also available as an eBook for subscribing libraries onelgaronline

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