In contemporary international humanitarian law or law of war, civilians are people who are not members of any armed force to the conflict. It is a war crime under the law of armed conflict to deliberately target civilians in military attacks, along with numerous other considerations to minimize civilian casualties during times of war. Civilians engaging in hostilities are considered unlawful combatants, and lose their protection from attack. Under the law of armed conflict, civilians may not be targeted by virtue of their status as persons not taking up arms against an enemy.Art. 51(1)–(2), Additional Protocol I. Civilians who are not directly participating in hostilities are a type of non-combatant protected under the law of war including in international humanitarian law (IHL) treaties and conventions, as well as customary international law.
A civilian is slightly different from a non-combatant, because some non-combatants are not civilians (for example, military chaplains, or military personnel who are serving with a neutral country). Civilians in the territories of a party to an armed conflict are entitled to certain privileges under the customary laws of war and international treaties such as Geneva Convention IV. The privileges that they enjoy under international law depend on whether the conflict is a civil war or an international one.
Etymology The word "civilian" goes back to the late 14th century and is from Old French . Civilian is believed to have been used to refer to non-combatants as early as 1829. The term "non-combatant" now refers to people in general who are not or are no longer actively engaging in hostilities in time of war, rather than just civilians.
Legal usage in war Specific mention of civilians as a protected class in international humanitarian law (IHL) did not occur until after World War II. The International Committee of the Red Cross (ICRC) Commentary on Geneva Convention IV of 1949 ("Relative to the Protection of Civilian Persons in Time of War") (1958) states that, "Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by Geneva Convention III, a civilian covered by Geneva Convention IV, or again, a member of the medical personnel of the armed forces who is covered by Geneva Convention I. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view."Jean Pictet (ed.) – Commentary on Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (1958) , p. 51. 1994 reprint edition. The ICRC has expressed the opinion that, "If civilians directly engage in hostilities, they are considered "unlawful" or "unprivileged" combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action."The relevance of IHL in the context of terrorism official statement by the ICRC 21 July 2005.
Under Article 50(1)-(3) of Protocol I to the Geneva Conventions of 1977 (Additional Protocol I):
A civilian is any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third [Geneva] Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian. The civilian population comprises all persons who are civilians. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.
Legal scholar Emily Crawford has noted that, "given the centrality of the concept of civilian status to the law of armed conflict, it is noteworthy that civilians do not have their own discrete definition; rather, civilians are defined in the negative in relation to combatants in the treaty law of armed conflict." No definition of the term "civilian" is contained in the Hague Regulations or the 1949 Geneva Conventions — including the Fourth Geneva Convention, which relates to the treatment of civilians in time of war. Protocol I to the Geneva Conventions of 1977 is the first IHL instrument to define the term.
The Commentary to Protocol I to the Geneva Conventions of 1977 has pointed out that anyone who is not a member of the armed forces and does not take part of hostilities in time of war is a civilian. Civilians cannot take part in armed conflict. Civilians are given protection under the Geneva Conventions and Protocols thereto. Article 50 defines civilians in international armed conflict as "all persons who are neither members of the armed forces of a party to the conflict nor participants in a levée en masse."Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Int'l Armed Conflict art. 50, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]. Article 51 describes the protection that must be given to the civilian population and individual civilians.
Chapter III of Protocol I to the Geneva Conventions of 1977 regulates the targeting of civilian objects. Under Article 8(2)(b)(i) of the 1988 Rome Statute of the International Criminal Court (ICC Statute), "Intentionally directing attacks against the civilian population as such or against individual civilians not taking part in hostilities" is a war crime.Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, 37 I.L.M. 999 (entered into force July 1, 2002). Not all states have ratified Protocol I or the ICC Statute, but it is an accepted principle of IHL that the direct targeting of civilians is a breach of the customary laws of war and is binding on all combatants.
Civilians in modern warfare
The actual position of the civilian in modern war remains problematic.Hugo Slim, Killing Civilians: Method, Madness and Morality in War, Hurst, London, 2008. It is complicated by a number of phenomena, including: The fact that many modern wars are essentially civil wars, in which the application of the laws of war is often difficult, and in which the distinction between combatants and civilians is particularly hard to maintain; Guerrilla warfare and terrorism, both of which tend to involve combatants assuming the appearance of civilians; The growth of doctrines of "effects-based war", under which there is less focus on attacking enemy combatants than on undermining the enemy regime's sources of power, which may include apparently civilian objects such as electrical power stations; The use of "lawfare", a term that refers to attempts to discredit the enemy by making its forces appear to be in violation of the laws of war, for example by attacking civilians who had been deliberately used as human shields; The term becomes ambiguous in societies that use widespread conscription, or otherwise "militarized societies," in which most adults have military training. This has been discussed with reference to the Israeli-Palestinian conflict.
Starting in the 1980s, it was often claimed that 90 percent of the victims of modern wars were non-combatants.Kahnert, M., D. Pitt, et al., Eds. (1983). Children and War: Proceedings of Symposium at Siuntio Baths, Finland, 1983. Geneva and Helsinki, Geneva International Peace Research Institute, IPB and Peace Union of Finland, p. 5, which states: "Of the human victims in the First World War only 5% were civilians, in the Second World War already 50%, in Vietnam War between 50 - 90% and according to some information in Lebanon 97%. It has been appraised that in a conventional war in Europe up to 99% of the victims would be civilians."Graça Machel, Impact of Armed Conflict on Children, Report of the expert of the Secretary-General, 26 Aug 1996, p. 9. .Mary Kaldor, New and Old Wars: Organized Violence in a Global Era, Polity Press, Cambridge, 1999, p. 107.Howard Zinn, Moises Samam, Gino Strada. Just war, Charta, 2005, p. 38. These claims, though widely believed, are not supported by detailed examination of the evidence, particularly that relating to wars (such as those in former Yugoslavia and in Afghanistan) that are central to the claims.Adam Roberts, "Lives and Statistics: Are 90% of War Victims Civilians?", Survival, London, vol. 52, no. 3, June–July 2010, pp. 115–35. Print edition ISSN 0039-6338. Online ISSN 1468-2699.
In the opening years of the 21st century, despite the many problems associated with it, the legal category of the civilian has been the subject of considerable attention in public discourse, in the media and at the United Nations, and in justification of certain uses of armed force to protect endangered populations. It has "lost none of its political, legal and moral salience."Adam Roberts, "The Civilian in Modern War", Yearbook of International Humanitarian Law, vol. 12, T.M.C. Asser Press, The Hague, 2010, pp. 13–51. ; ISSN 1389-1359. One part of this article, relating to casualties, also appeared in Survival, June–July 2010, as footnoted above.
Although it is often assumed that civilians are essentially passive onlookers of war, sometimes they have active roles in conflicts. These may be quasi-military, as when in November 1975 the Moroccan government organized the "green march" of civilians to cross the border into the former Spanish colony of Western Sahara to claim the territory for Morocco — all at the same time as Moroccan forces entered the territory clandestinely.Ian Brownlie, African Boundaries: A Legal and Diplomatic Encyclopaedia, C. Hurst, London, for Royal Institute of International Affairs, pp. 149-59 gives a useful account of the background and origin of the dispute over Western Sahara. In addition, and without necessarily calling into question their status as non-combatants, civilians sometimes take part in campaigns of nonviolent civil resistance as a means of opposing dictatorial rule or foreign occupation: sometimes such campaigns happen at the same time as armed conflicts or guerrilla insurrections, but they are usually distinct from them as regards both their organization and participation.See for example the chapters on the anti-Marcos movement in the Philippines (by Amado Mendoza) and on resistance against apartheid in South Africa (by Tom Lodge) in Adam Roberts and Timothy Garton Ash (eds.), Civil Resistance and Power Politics: The Experience of Non-violent Action from Gandhi to the Present, Oxford University Press, 2009 , pp. 179-96 and 213-30.
Officials directly involved in the maiming of civilians are conducting offensive combat operations and do not qualify as civilians.
Civilian protection under international humanitarian law International humanitarian law (IHL), also known as the law of war and the law of armed conflict, codifies treaties and conventions, signed and enforced by participating states, which serve to protect civilians during intrastate and interstate conflict. In the mid-19th century, governments began to "construct a body of international law that attempted to codify customary protections for civilians."Conway-Lanz 2006, p. 5.
Even for non-treaty participants, it is customary for international law to still apply. Additionally, IHL adheres to the principles of distinction, proportionality, and necessity; which apply to the protection of civilians in armed conflict. Although, despite the United Nations deploying military forces to protect civilians, it lacks formal policies or military manuals addressing exactly these efforts. The UN Security Council Report No 4: Protection of Civilians in Armed Conflict provides further evidence of the need for protection of civilians.