The evolution of international legal regulation of the civilians protection in armed conflict

Table of contents: The Kazakh-American Free University Academic Journal №10 - 2018

Gavrilova Yuliya, Kazakh American Free University, Kazakhstan
Novitskaya Yuliya, Kazakh American Free University, Kazakhstan

Today, no one doubts the fact that the armed conflict as a threat to the human right to life, originated in the period of the ancient world. And at that time there was a question about the protection of people who do not take a direct part in armed conflict, do not have weapons, but with each period of human history, the number of victims among the civilian population tends to grow in a sustainable manner. At the same time, history shows that it took hundreds and even thousands of years before we formed mechanisms, protecting civilians from the atrocities of war.

In ancient times, the enemy was considered powerless and it was allowed to treat the enemy accordingly (moreover, the very concept of "the enemy" had many meanings). The civil population also has not been immune from violence. If the winner spared the civilian population of an enemy state, they did so for moral and political reasons, rather than the requirements of law [1].

Prominent Swiss legal scholar of the nineteenth century, Johann Kaspar Blunt-schli emphasized that "scientists of that time considered to be the main two things: firstly, all the subjects of the warring states should be considered as enemies; secondly, the losers are subject to the arbitrariness of the winner"[2].

“Yet, - emphasizes Niccolo Machiavelli in his book "The Prince" - slaying fellow-citizens, deceiving friends, having no faith, no mercy, no religion cannot be called a virtue..." [3]. The scientist considered these acts, which may take place both in peacetime and in time of armed conflict.

Humane attitude towards the civilian population can be traced in the treatise of the founder of international law, Hugo Grotius "On the Law of War and Peace." The thinker didn’t differentiate individuals into participants in the armed conflict and the civilian population and thought that children, women, if they are not guilty of a felony and the elderly should always be spared. Grotius, referring to Seneca, emphasized: "The child is saved due to age, a woman - due to her sex." According to him, it is also appropriate to spare those who dedicated their lives to solely ministry and science [4]. In other words, the thinker identifies specific groups in need of special protection: children, women, clerics and scholars.

Carrying out the idea of the senseless nature of the very nature of an armed conflict, the English materialist philosopher Thomas Hobbes, following Machiavelli and Grotius, emphasized the negative character of any armed conflict and its impact on human life. Hobbes believed that initially people were in a "natural state of the human race" and the state did not exist. In addition, everyone had a "right to everything," including even the life of another person. And since selfishness, fear, greed, ambition, lust for power, greed, etc. are inherent in people, all this led to a "war of all against all" These ideas were proposed in a philosopher’s famous work "Leviathan, or the Matter, Form, and the power of church and state civil" [5]. We would like to attract especial attention to his famous statement "war of all against all". It means that war involves all people, which is one of the main threats to the survival of the mankind.

The scientists-enlighteners of the eighteenth century in their works devoted particular attention to the protection of human rights during the war, although at that period there were no special written rules aimed at protecting civilians in the time of war.

For example, the leading theorist of the State Charles Louis de Montesquieu noted that the international law, of course, is based on the principle that in times of peace the state should do as much good as possible, and in the times of war - as little harm as possible [6]. The thinker especially emphasized that a period of war is a special time when people need to be protected.

The main principle, which is a foundation of a modern international humanitarian law was formulated by the eminent philosopher Jean-Jacques Rousseau in his treatise "The Social Contract", published in 1762. Rousseau proposed a statement that the war is a relationship not between people but between the states and the people become enemies accidentally, not as human beings and not even as citizens, but as soldiers. And the soldiers can only be fought with as long as they are fighting. As soon as they lay down their arms, they become ordinary people again, and they should be spared [7].

Clausewitz in his treatise "On War" emphasizes that "War is an act of violence and there is no limit to its use" [8]. What is more, Clausewitz distinguishes between the "war of savage nations and war of civilized nations which are less cruel and destructive"[8]. The difference between the wars according to the author is also in fact that the "civilized nations do not kill prisoners, don't ruin villages and towns ... it comes from the fact that military operations are managed by the mind, which indicates more efficient ways to use violence than the gross manifestations of instinct"[8]. However, despite the different types of armed conflict, "the introduction of the principle of limitation and moderation in the philosophy of war itself is an utter nonsense" [8].

Considering the author's position in terms of our research, we can see that Cla-usewitz did not see the need for legal regulation of the conduct of armed conflicts, as well as the need for special protection of human rights during armed conflict.

Clausewitz's position in the issue of our study can be contrasted with the views of Immanuel Kant stated in his work "Perpetual Peace." Kant treats the state of war in a completely different way, condemning "war as a legal procedure and, on the other hand, directly obliges the peaceful state, which, however, can neither be established nor secured without a contract between peoples” [9]. According to Kant, vile and dishonest methods of warfare should be prohibited: "no state at the time of war with another state should resort to such hostile acts as sending secret assassins (percussores), poisoners (venefici), violation of the terms of surrender, incitement to treason (perduellio) in the state of the enemy, etc., which would make mutual trust in the future, in time of peace impossible." [9].

In other words, Kant was really "mo-ving" towards the eternal peace, condemning war, giving it a status of unlawful acts. Moreover, he suggested eventual abolishment of standing armies whose existence threatens other states.

These and similar examples from the history of political and legal thought naturally increase the interest in the problem of armed violence, especially towards the civilian population. A significant contribution to the development of this problem was made by philosophers of different epochs, condemning the war and considering it to be unlawful means of resolving conflict. However, the thinkers of the ancient world mainly believed that the war is undesirable, but a legal method. These thinkers were the first ones to consider the problem of armed violence and they laid the foundation for further study of various aspects of the armed conflicts. Then, it took several decades to admit that the war is an illegal way of resolving disputes between he states and to prove that there is a need to limit the methods of warfare, which are inhumane.

The legislative solution of this problem is partially reflected in the adopted on August 22, 1864 “First Geneva Convention for the Amelioration of the wounded and sick soldiers during the war on land”, which has given the status of neutrality to medical personnel on the battlefield. “Every person who has given shelter to the wounded shall be exempted from billeting and from a portion of such war contributions as may be levied. Village dwellers who bring help to the wounded shall be spared and shall remain free” (§§ 5 and 6) [10].

4 years later in 1868 in St. Petersburg a Declaration on the abolition of the use of explosive and incendiary bullets was adopted. It became famous for the obligation of participants of the Declaration to mutually reject from the using of projectiles, which weigh less than 400 grams and have property of fulminating or kitted shock or fuel composition by both land and navy forces [11]. In the context of our study we find it interesting that one of the aims of the Declaration is the need... to disable as many people as possible [11].

It is also interesting that article 5 of the “Convention for the Amelioration during the land wars of the wounded and sick soldiers” signed in Geneva on June 23 (July 6), 1906 fixed the norm that the military authorities should appeal to the philanthropy of local residents, offering them to help the wounded and sick soldiers ... take care of them, while providing special protection and privileges to individuals, who responded to the appeal [12].

We would like to note that the above-mentioned Conventions allocate a separate category of people, who didn’t take part in the armed conflict and should be free, i.e., not involved in the number of participants in the armed conflict. However, the documents do not yet provide for the specific protection for this category of people, while providing the tax exemption, which the state sets in the time of the armed conflict.

However, these documents were of historical importance for the further development and evolution of international legal regulation of the protection of civilians in armed conflict. They became the basis for the adoption of the four Geneva Conventions in 1949, one of which is specifically devoted to the protection of civilians. This IV Geneva Convention is of particular historical and practical significance, because it was the first document at the international legal level which provided a special legal regime for the protection of the civilian population by restricting and prohibiting the use of certain means and methods of warfare which are of particular concern for the civilian population. In general, the Convention establishes the following: "the civilian population under any circumstances should be entitled to humane treatment and protection against any acts of intimidation of violence, terror and abuse, no matter whet-her it is in the temporarily occupied enemy territory or in the rear of their armies. Warring parties may establish in its territory and in the occupied territory of the hospital zones and safety zones for the purpose of protection from the hostilities of the wounded and the sick, elderly and disabled, children under 15 years of age, pregnant women and mothers with children up to 7 years of age, telling enemy on the establishment of such zones" [13].

Thus, the civilian population fell under the protection of the international law in the time of armed conflict as a separate category of members of the armed conflict different from combatants and non - combatants.

This distinction is even more clearly reinforced by Additional Protocol I, adop-ted by the Geneva Convention of 1949. The Article 48 of the document is of mot importance. The main rule states that “… 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” [14]. Also for the first time the Convention set regulations, establishing that in case of doubt as to whether a person is a civilian, it is considered to be a civilian, i.e., the one that does not belong to the personnel of the armed forces and does not take part in hostilities.

Also "acts or threats of violence which have the primary purpose of terrorizing the civilian population are prohibited. Since hunger is unacceptable as a method of warfare, it is prohibited to attack, destroy, remove or render objects vital for the survival of the civilian population such as food stocks, crops, livestock, facilities for drinking water, irrigation. Works or installations containing dangerous forces - dams, dykes and nuclear power stations should not be subjected to a military attack, if this can cause the release of dangerous forces and consequent severe losses among the civilian population. Protocol II also prohibits the forced displacement of civilians, if it is not caused by the requirements to ensure their safety, as well as committing hostile acts against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of people” [15].

Summing up the question of the evolution of international legal regulation of the protection of civilians in armed conflict, we shall emphasize the following:

- First, during the period of the ancient world civilian population was unprotected from the position of law, and was treated as combatants, i.e., persons against whom the weapon could be used as a means of destroying the enemy;

- Second, the emergence of the idea of the need for special protection of civilians in during the period of armed conflict is associated with the thinkers of the Middle Ages; but these ideas were not accepted ubiquitously;

- Third, the ideas of ancient and medieval thinkers, as set out in their writings, formed the basis of modern conventional protection of the civilian population;

- Fourth, from the standpoint of the international law, its greatest achievement was the adoption of the IV Geneva Convention on the protection of civilians, 1949, which legally distinguished the civilian population as a special group that needs special international legal protection;

- Fifth, the modern international legal protection of the civilian population is carried out by the restriction or prohibition of the use of means and methods of warfare which are directly related not only to the civilian population but also to civilian objects.


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Table of contents: The Kazakh-American Free University Academic Journal №10 - 2018

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