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
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".
“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..." . The scientist considered
these acts, which may take place both in peacetime and in time of armed
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 . 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" . 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 . 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 .
Clausewitz in his treatise "On War" emphasizes that
"War is an act of violence and there is no limit to its use" .
What is more, Clausewitz distinguishes between the "war of savage nations
and war of civilized nations which are less cruel and destructive". 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". 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" .
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” . 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." .
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
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) .
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 . 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
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 .
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" .
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”
. 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” .
Summing up the question of the evolution of international legal
regulation of the protection of civilians in armed conflict, we shall emphasize
- 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
- 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
- Third, the ideas of ancient and medieval thinkers, as set out in
their writings, formed the basis of modern conventional protection of the
- 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.
1. Kalugin V, Pavlova L.V., Fisenko I.V.,
Mezhdunarodnoye gumanitarnoye pravo (International Humanitarian Law) 308
2. Sovremennoye mezhdunarodnoye pravo civilizovannyh
gosudarstv, izlozhenno-ye v vide kodeksa 634 (Modern International Law of
Civilized States as Set out in the Form of a Code. Translation from 2-nd German
edition / J. Bluntschli.; Translation: A. Lodyzhenskiy, V. Ulyanitskiy; edited
by: L. Kamarovskiy. – Moscow: “Indrih” printing house, 1876).
3. Machiavelli, Niccolo, The Prince, 480, (Jan. 6,
2017, 11:45 AM), Available at: http://www.constitution.org/mac/prince.pdf.
4. Grotius, Hugo. O prave voiny i mira (On the Law
of War and Peace) (Jan. 5, 2017, 10:45 AM), 868, Available at: http: //
5. Vrazhnova A., Tsarev D.A. Teoriya obschetvennogo
dogovora v “Leviathane” Thomasa Gobbsa (The theory of social contract in Thomas
Gobbs’ “Leviathan”), Vremya nauki-The Times of Science, 20, 19-25 (2016).
6. Charles Louis de Montesquieu. The Spirit of Laws.
Part I. Edition 2. Saint-Petersburg 1862, 9.
7. Rousseau, Jean-Jacques. Ob obschest-vennom dogovore (The Social Contract) 156 (1969)
8. von Clausewitz, Carl. O voine (On War), (Jan. 4,
2017, 09:45 AM), Available at: http:// militera. lib. ru/science/
9. Kant, Immanuel. Writings 729. Vol.6. (V.F. Asmus,
A.V. Gulyga, T.I. Oyzer-man, 1966).
10. First Geneva Convention for the Amelioration of
the wounded and sick soldiers during the war on land, 1864. (Jan. 5, 2017,
10:55 PM), Available at:https:// ihl-databases.icrc.org/applic/ihl/ihl.nsf/
11. The Saint Petersburg Declaration Renouncing the
Use, in Time of War, of Explosive Projectiles (1868), (Jan. 3, 2017, 10:55 PM),
Available at: http:// ppt. ru/ newstext
12. Convention for the Amelioration of the Condition
of the Wounded in Armies in the Field (Jan. 9, 2017, 10:55 PM), Available at: https://ihl-databases. icrc. org/ ihl/ INTRO/
13. Mezhdunarodnoye publichnoye pravo (International
Public Law) 640 (Edited by Kamil Bekyashev, 2nd edition 2003)
14. Protocol Additional to the Geneva Conventions of
12 August 1949, and relating to the Protection of Victims of International
Armed Conflicts (Protocol I), (Jan. 9, 2017, 10:55 PM) Available at: https://www.icrc.org/rus/assets/ files/ 2013/ ap_i_rus.pdf.
15. Polenina S. Prava zhenschin v sisteme prav
cheloveka (Women’s rights in the human rights’ system: international and
national aspect) (Moscow, 2000)
Table of contents: The Kazakh-American Free University Academic Journal №10 - 2018