Note on the Protection of Refugees in Armed Conflict Situations

EC/SCP/25

In connection with the subject of military attacks on refugee camps which is on the agenda of the Thirty Third session of the Sub-Committee of the Whole on International Protection, the Office is submitting for the information of Member Governments of the Executive Committee a statement of principles of international humanitarian law and legal provisions relevant to this subject. This statement has been prepared by the Office and is annexed to this Note.

Relevant principles of international humanitarian law and legal provisions

A. Introduction

The following is a brief outline of the humanitarian principles and legal provisions relevant to the protection of refugees against armed attacks. This protection relates to refugees who are civilians or who belong to civilian population. As such, these refugees are protected by the principles and provisions of International Humanitarian Law applying to the protection of civilians or civilian population in armed conflict and in peace time by the more stringent provisions of International Law applicable generally to the protection of individual human rights.

B. Prohibition of Attacks against Civilians and Civilian Population in Armed Conflict Situations

The twentieth International Conference of the Red Cross held at Vienna in 1965 laid down in a declaratory form (Resolution XXVIII), inter alia, the following principles for observance by all governmental and other authorities responsible for action in armed conflicts:

(a) That the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited;

(b) That it is prohibited to launch attacks against the civilian populations as such;

(c) That distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible.

These principles reflected the laws of humanity and the dictates of public conscience as expressed in such instruments as the 1907 Hague regulations and 1949 Geneva Conventions.

The UN General Assembly in resolution 2444 (XXIII) of 19 December 1968 endorsed these humanitarian principles.

The U.N. Conference on Human Rights, in resolution XXIII of 12 May 1968, observed that armed conflicts continued to plague humanity; considered that the widespread violence and brutality of the times, including massacres, summary executions, tortures, inhuman treatment of prisoners, killing of civilians in armed conflicts eroded human rights and engendered counter-brutality, expressed the conviction that even during periods of armed conflict, humanitarian principles must prevail; and decided to recommend certain types of action (Final Act of the International Conference on Human Rights, United Nations publications, Sales No E.68.XIV.2, p. 18).

In resolution 2675 (XXV) of 9 December 1970, the UN General Assembly affirmed, inter alia, the following basic principles for the protection of civilian populations in armed conflicts:

1. Fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflicts;

2. In the conduct of military operations during armed conflicts, a distinction must be made at all times between persons actively taking part in the hostilities and civilian populations;

3. Civilian populations as such should not be the object of military operations;

4. Dwellings and other installations that are used only by civilians should not be the object of military operations;

5. Places or areas designated for the sole protection of civilians, such as hospital zones or similar refuges, should not be the object of military operations;

6. Civilian populations, or individual members thereof, should not be the object of reprisals, forcible transfers or other assaults on their integrity.

In 1974, the United Nations General Assembly adopted a Declaration concerning the Protection of Women and Children in Emergency and Armed Conflict (UNGA Resolution 338 (XXIX)) which stated explicitly inter alia that:

i) attacks and bombings on the civilian populations, inflicting incalculable suffering, especially on women and children, who are the most vulnerable members of the population, shall be prohibited, and such acts should be condemned; and

ii) that all forms of repression and cruel and inhuman treatment of women and children, including imprisonment, torture, shooting, mass arrests, collective punishment, destruction of dwellings and forcible eviction, committed by belligerents in the course of military operations or in occupied territories shall be considered criminal.

In resolution 32/44 of 8 December 1977, the UN General Assembly, welcomed the successful conclusion of the Diplomatic Conference on the reaffirmation and development of International Humanitarian Law applicable in armed conflicts (adoption of two additional Protocols to the Geneva Conventions of 1949) and, inter alia, called upon all parties to armed conflicts to acknowledge and to comply with their obligations under the existing instruments of international humanitarian law and to observe the international humanitarian rules which are applicable. It also called upon all States to take effective steps for the dissemination of humanitarian rules applicable in armed conflicts.

In the two Protocols additional to the 1949 Geneva Conventions, provisions are found for the protection of the civilian population against armed attacks. Many of these provisions reflect generally recognized principles and rules of international humanitarian law applicable to armed conflict, in particular the provisions of the Fourth Geneva Convention relative to the protection of civilian persons.

The basic rule stated in Article 48 of Protocol I is 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 these operations only against military objectives. It is further stated in Article 51 that the civilian population and individual civilians shall enjoy general protection against danger arising from military operations; the civilian population as such, as well as individual civilians, shall not be the object of attacks; attacks or threats of violence the primary purpose of which is to spread terror among the civilian populations are prohibited; and attacks against the civilian populations or civilians by way of reprisal are also prohibited. In Article 57, it is stated that in the conduct of military operations, constant care shall be taken to spare the civilian populations, civilians and civilian objects; and certain precautionary measures governing the conduct of military operations are prescribed by that article.

The basic rules of protection of the civilian population are found also in Protocol II, where it is stated, in Article 13, that the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations; that the civilian populations as such, as well as individual civilians, shall not be the object of attacks; and that acts or threats of violence the primary purpose of which is to spread terror among the civilian populations are prohibited.

Certain rules governing the conduct of military operations have also been enunciated in regard to attacks against groups or populations who may not be wholly civilian in character.

In Protocol I additional to the 1949 Geneva Conventions, it is stated that the presence within the civilian population of individuals who do not come within the definition of civilian does not deprive the population of its civilian character. (Article 50 (3)). Indiscriminate attacks are prohibited (Article 51 (4)). According to this latter provision, indiscriminate attacks are :

(a) those which are not directed at a specific military objective;

(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or

(c) those which employ a method as means of combat the effects of which cannot be limited as required by the Protocol;

and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. Among others, the following types of attacks are to be considered as indiscriminate according to the rule of article 51:

(a) an attack by bombardment by any methods or moans which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other areas containing a similar concentration of civilians or civilian objects;

(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

Article 85 of Protocol I on repression of breaches of this Protocol states, inter alia, that making the civilian population or individual civilians the object of attack shall be regarded as grave breach of Protocol I.