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7. WHOM DOES IHL PROTECT? IHL protects all victims of armed con!icts, 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.

INTERNATIONAL ARMED CONFLICTS

Civilians Civilians are entitled to protection in two di"erent situations. First, they enjoy general protection against dangers arising from hostilities. (See Question 11.) Civilians, de#ned as all persons who are not combatants (see de#nition of ‘combatants’ below), must not be the object of attacks. The only exceptions to this rule are civilians who directly participate in hostilities, for example, by taking up arms against the enemy. In such instances, they may be targeted for attack, but only so long as they directly participate in hostilities. (See Question 11.)

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Second, civilians are ‘protected persons’ under IHL when in the hands of a party to the con!ict, provided that: – they are not nationals of this enemy State – they are not nationals of an ally of this enemy State (unless these two

States do not enjoy normal diplomatic relations) – they are not nationals of a neutral State, i.e. a non-belligerent State

(unless these two States do not enjoy normal diplomatic relations). In occupied territories, however, nationals of a neutral State are always protected persons.

The rationale is that these civilians must be protected by IHL because they no longer enjoy the protection of their own State – either because it is at war with the State in whose power they are or because it has no diplomatic relations with that State. The aim is also to protect civilians from arbitrary acts of an adverse party because of their allegiance to its enemy.

Protected civilians are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must not be subjected to torture, cruel or degrading treatment or corporal punishment and must be protected against all acts of violence or reprisal.

Civilians are particularly at risk when they are in a territory occupied by the army of a belligerent power or when they are detained for reasons related to an armed con!ict. In occupied territory, the occupying power has a particular obligation to provide food and medical supplies for protected civilians. Deportation and forced transfers are prohibited. There are also rules on con#scating or seizing property. IHL provides detailed rules protecting civilians deprived of their liberty, particularly on the conditions of their detention, the judicial and procedural guarantees to which they are entitled, and their release. (See Question 10.)

Combatants hors de combat Although they do enjoy protection from super!uous injury or unnecessary su"ering, combatants are not protected against the e"ects of hostilities. (See Question 12.) Thus, they can be attacked unless they are hors de combat.

All members of the armed forces of a party to the con!ict (except medical and religious personnel) are de#ned as ‘combatants’. The armed forces of a party to a con!ict consist of all organized armed forces, groups and units that are under a command responsible to that party for the conduct of its

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subordinates. (See Article 43, paragraphs 1 and 2, of Additional Protocol I. See also Rules 3 and 4 of the ICRC’s study on customary IHL.) Typically, this includes members of the regular armed forces. It also includes members of militia or volunteer corps (so-called ‘irregular’ armed forces), as well as members of organized resistance movements. The Third Geneva Convention is stricter than Additional Protocol I and provides speci#c additional conditions that members of irregular armed forces and of organized resistance movements must meet to be regarded as prisoners of war.

Combatants are considered to be hors de combat when they are in the power of an adverse party, when they clearly express an intention to surrender, or when they are wounded or sick to such an extent that they are incapable of defending themselves. In each of these cases, these persons are hors de combat if they abstain from any hostile act and if they do not attempt to escape. As soon as a combatant is hors de combat, he must be shown due regard and protected.

Moreover, when combatants fall into the power of the enemy – owing to capture, surrender, mass capitulation or some other reason – they enjoy the status of ‘prisoners of war’. As such, they cannot be prosecuted or punished for having directly participated in hostilities. In fact, combatants have a right to directly participate in hostilities and enjoy immunity from prosecution for their acts of belligerence. If they commit war crimes, however, they must be held responsible. (See Question 19.)

Prisoners of war are entitled to humane treatment and respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must not be subjected to torture, cruel or degrading treatment or corporal punishment and must be protected against all acts of violence or reprisal. IHL contains detailed rules protecting prisoners of war, particularly on the conditions of their detention, the judicial and procedural guarantees to which they are entitled, and their release and repatriation. (See Question 10.)

NON!INTERNATIONAL ARMED CONFLICTS IHL does not recognize any speci#c categories of person in non-international armed con!icts. That is because States do not want to give members of organized non-State armed groups the status of ‘combatants’, which entails the right to take a direct part in hostilities. Therefore, common Article 3 and Additional Protocol II simply provide that everyone not actively involved

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PROTECTION FOR THE WOUNDED, SICK AND SHIPWRECKED AND FOR MEDICAL SERVICES The wounded, sick and shipwrecked, regardless of their status, are entitled to protection. Such persons must be searched for, collected and cared for by the party to the con!ict that has them in its power. Medical personnel and medical establishments, transports and equipment must be respected and protected in all circumstances. The red cross, red crescent or red crystal on a white background is the distinctive sign showing that such persons and objects must be protected. (See Question 13.)

SPECIFIC PROTECTION: WOMEN AND CHILDREN Certain categories of person, such as women and children, have speci#c needs in armed con!icts and must be given particular respect and protection.

Children must receive the care and aid they require. All feasible measures must be taken to prevent children under the age of 15 from taking a direct part in hostilities and, if they have become orphaned or separated from their families as a result of an armed con!ict, to ensure that they are not left to their own resources. Their maintenance, the exercise of their religion and their education should be facilitated in all circumstances. Children who are deprived of their liberty must be held in quarters separate from those of adults, except where families are accommodated as family units. The death penalty must not be carried out against persons who were under the age of 18 when they committed the o"ence in question.

in hostilities, or no longer taking part in them, is entitled to protection. This enables IHL to protect civilians and those who are no longer taking a direct part in hostilities. Because there is no ‘combatant’ status in non- international armed con!icts, there is no prisoner-of-war status either. This means that members of organized non-State armed groups taking up arms in such a con!ict may be prosecuted under domestic law for doing so.

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FUNDAMENTAL GUARANTEES REGARDLESS OF STATUS In addition to the protection described above, IHL provides for certain fundamental guarantees that apply to all persons hors de combat regardless of their status (Article 75 of Additional Protocol I; Article 4 of Additional Protocol II).

The person, honour, convictions and religious practices of all such persons must be respected. The following acts in particular are prohibited under all circumstances, whether committed by civil or military agents: a) violence to the life, health and physical or mental well-being of

persons, particularly: • murder • torture, whether physical or mental • corporal punishment • mutilation

b) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, forced prostitution and any form of indecent assault

c) the taking of hostages d) collective punishment e) threats to commit any of the foregoing acts.

Finally, the fundamental guarantees accorded to all persons a"ected by armed con!ict also include certain procedural and judicial safeguards (Article 75 of Additional Protocol I; Article 6 of Additional Protocol II).

The speci#c protection, health and assistance needs of women a"ected by armed con!ict must be taken into account. Pregnant women and young mothers must be treated with particular care. The prohibition against sexual violence applies equally to men and women, but it is often the case that women bear the brunt of the sexual violence that occurs during armed con!icts. Women therefore have a speci#c need to be protected against all forms of sexual violence – for instance, through separation from men while deprived of their liberty, except where families are accommodated as family units. Women must also be under the immediate supervision of women, not men.

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8. WHO IS BOUND BY IHL? All parties to an armed con!ict – whether States or organized non-State armed groups – are bound by treaty and customary rules of IHL. Rules of customary IHL apply at all times to all parties, irrespective of their rati#cation of IHL treaties.

States and their obligations Only States may become parties to international treaties such as the Geneva Conventions and their Additional Protocols. As of November 2013, 195 States were party to the Geneva Conventions. The fact that the Conventions are all but universally rati#ed testi#es to their importance. As of March 2014, 173 States were party to Additional Protocol I, 167 to Additional Protocol II and 66 to Additional Protocol III.

Organized non-State armed groups and their obligations Organized non-State armed groups are bound – as parties to non- international armed con!ict – by common Article 3 and Additional Protocol II (if the threshold for its application is met – see Question 5) provided that the State to which they belong is party to the treaties in question. In any case, they are also bound by customary IHL rules pertaining to non- international armed con!icts.

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National liberation movements National liberation movements #ghting against colonial domination and alien occupation and against racist régimes in the exercise of the right of self-determination of the peoples they represent may undertake to apply the Geneva Conventions and Additional Protocol I (i.e. IHL pertaining to international armed con!icts) by means of a unilateral declaration addressed to the depositary, i.e. the Swiss Federal Council. (See Article 1, paragraph 4, and Article 96, paragraph 3, of Additional Protocol I).

Does IHL apply to peace operations carried out by or under the auspices of the United Nations? The multifaceted nature of peace operations and the ever more di$cult and violent environments in which their personnel operate make it more likely that multinational forces conducting such operations will become involved in the use of force. In such situations, the question of IHL applicability becomes very pertinent.

The issue of IHL applicability to multinational forces has been disregarded for a long time. It has often been contended that United Nations forces cannot be party to an armed con!ict, and therefore cannot be bound by IHL. It has also been a$rmed that multinational forces, which bear the stamp of international legitimacy, should be considered to be impartial, objective and neutral, because their only interest in any armed con!ict is the restoration and preservation of international peace and security.

This view of the matter, however, dispenses with the longstanding distinction between jus ad bellum and jus in bello. As with anyone else, the applicability of IHL to multinational forces must be determined solely on the basis of the facts, irrespective of the international mandate assigned to multinational forces by the Security Council and of the designation given to the parties potentially opposed to them.

IHL will be applicable to multinational forces once they become party to an armed con!ict, be it international or non-international. When multinational forces are #ghting against State armed forces, the legal framework of reference will be IHL applicable to international armed con!ict. When they are opposed by one or more organized non-State armed groups, the legal framework of reference will be IHL applicable to non-international armed con!ict.