PROTECTION OF THE CIVILIAN POPULATION IN ARMED CONFLICTS: A REFERENCE FOR CONTEMPORARY CONFLICTS

ABSTRACT

War spares no one. Men or women, children or adults, the weak or the strong are all victims of war. In fact, from the inception of armed conflicts the civilian population have often been made objects of attacks by belligerents who often than not make no distinction between civilians and combatants. Thus the suffering of the civilian population in armed conflict is no longer a new phenomenon. Today, battles are no longer fought on battlefields. Rather battles are fought everywhere, in schools, markets, streets, and even hospitals. This has made the civilian population more vulnerable and assailable to the attacks of belligerents. Thus, this paper opines that the plight of the Civilian Population during armed conflicts have reached dimensions threatening the legitimacy of the International Legal Order. This work therefore stands out with the primary preoccupation of exploring the protection of the civilian population in armed conflicts. 

1.0 GENERAL INTRODUCTION

Armed conflicts are as old as time and in the words of the Secretary- General of the United Nations for Humanitarian Affairs, the worsening plight of  civilian casualties in the regions and theatres of war over ages remain a considerable and grave problem.[1] Armed conflicts are regulated by International Humanitarian Law (IHL) which Geoffrey Corn defines as the rules that regulate the conduct of war.[2]  It is worth noting that the main objective of  IHL is to protect the health and dignity of individuals with the protection of the civilian population being one of the key areas affording protection.

Worthy of notice is the fact that, the Responsibility to Protect (R2P) rest primarily on the state. The international Community may only disregard state sovereignty and intervene if the state is no longer willing and able to carry out its responsibility to protect. In such a situation, no call is required before the international community can intervene. The silent question remains; what is the template that indicates whether or not a state is still willing and able to carry out her responsibility so as to warrant international intervention to put an end to armed violence which affects the vulnerable civilian population both directly and indirectly.

Pursuant to Article 3 Common to the Geneva Convention and its Additional Protocol II, rules have been established for non-international armed conflicts, imposing obligations on State and non-state armed groups alike. Moreover, most of the fundamental rules pertaining to the Protection of the civilian population are considered to be customary Humanitarian Law which is binding on all states whether or not they are signatories including non-state armed groups.

 The protection of the Civilian Population is governed by the Fourth Geneva Convention of 1948 and builds upon The Hague Regulations (attached to Hague Convention III on the Law and Customs of war on Land, 1907). This Geneva Convention is limited in its Article 4 to defining the civilian Population which will be examined later. The convention comes into operation and is applicable in protecting the civilian population upon the outbreak of hostilities or the start of an occupation and ends at the general close of military operations[3].

The Fourth Geneva Convention which focuses on the Protection of the civilian population and the Additional Protocols of 1977 constitute the legal framework regulating behavior in war, including of the Protection of Civilians and other persons that do not participate in hostilities. Most of the fundamental rules pertaining to the protection of civilians are considered to be Customary International Law[4] in both international and internal armed conflicts.

In the foregoing, this paper will be analyzing in much greater details, the definition of the key term which includes; Civilian Population, the definition of the term ‘Protection’ and finally what is Protection of the Civilian Population. Most importantly, we will be examining all the necessary measures that have been put in place to ensure or guarantee the Protection of civilians in armed conflicts especially with the surge in armed conflicts in several corridors in the world and in particular the ongoing armed conflict plaguing the Northwest and Southwest regions of Cameroon. More to that, this paper examines the difficulties or challenges which stands as barricades to the protection of civilians in armed conflicts and finally, recommendations and conclusion.

1.1 Definition of Key Terms

• The Civilian Population.

The Fourth Geneva Convention defines the civilian population as persons who at a given moment and in any manner whatsoever find themselves in case of conflict or occupying power of which they are not a party to.[5]

• Protection

Protection is the act of putting into place all measures to ensure that the rights of individuals are not infringed by third parties. In our context, the State has the primary responsibility to ensure that, during armed conflict, the rights of its citizens are not infringed by third parties.[6]

• Protection of Civilian Population

This will simply refer to all activities aimed at ensuring full respect for the rights of people who do not (or no longer) take part in hostilities, in accordance with both the letter and Spirit of relevant laws

2.0 The Legal Framework for the Protection of the Civilian Population

The four Geneva Conventions of 12 August 1949 protect different categories of people in times of war. In this regard, the Fourth Geneva Convention lay down rules which in effect protect the civilian population in all situations of armed conflicts. These rules are succinctly examined seriatim.

2.1 The Geneva Convention Relative to the Protection of Civilian Persons in Times of War of 12 August 1949

The Fourth Geneva Convention also known as the Geneva Convention Relative to the Protection of Civilian Persons in Time of War is dedicated to the protection of the civilian population in armed conflicts. A civilian is defined as any person, not a combatant.   This Convention applies to the outset of any conflict or occupation and ceases to apply on the general close of military operations.   Under this Convention, civilians are afforded the same protections from inhumane and degrading treatment and attack afforded to sick and wounded soldiers in the first convention. In this light, the Convention provides that protected persons are entitled in all circumstances, to the respect of their persons, their honor, their family rights, their religious convictions and practices, and their customs. It continues by providing that, protected persons shall at all times be treated humanely and protected from all acts of violence or threats directed towards them.

In addition to the above, women should be granted special protection against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.   This Convention prohibits any form of physical or moral coercion exercised against protected persons to obtain information from them.  

 In like manner, the Convention prohibits all measures taken with the intention of causing physical suffering or extermination of protected persons. This prohibition is not limited to murder or torture, but also any other measures of brutality whether applied by civilians or military agents. In particular, reprisals against protected persons are prohibited, including taking of hostages or kidnapping for ransoms as the cases may be and pillage.

According to this Convention, the rights of workers during hostilities are protected as well as the prohibition of destruction of real or personal property belonging to individually or collectively to private persons, or the state, or other public authorities, or social or co-operative organizations, except such destruction is rendered necessary by military operations. 

More to that, this Convention makes provision relating to the welfare of children during armed conflicts. To this effect, the Convention provides that, the Parties to the conflict take all necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of war are not left on their own resources, and their maintenance, and the exercise of their religion and education should be facilitated in all circumstance. 

 More importantly, additional provisions regarding the treatment of civilians specifically, the prohibition of attacks on civilian hospitals and medical transport have been introduced by this Convention. Finally, the Convention discusses how occupiers are to treat an occupied populace.  The Fourth Geneva Convention also makes provision for the right to a fair hearing and the right to appeal specifically for protected persons.   More so, the Convention lay down rules intended to safeguard the welfare of internees in the hands of the Detaining Power.   

Apart from the elaborate rules laid down by the Fourth Geneva Convention, there are other principles protecting thee lives, dignity and integrity of the civilian population which cut across the four Conventions. These principles include inter alia; the Principle of Distinction, the Principle of Proportionality, the Principle of Necessity and the Principle of Precaution.

2.1.1 The Principle of Distinction as a Measure of Protection

The principle of distinction entails a duty to prevent erroneous targeting and to avoid or, in any event, minimize the infliction of incidental death, injury and destruction in respect of persons and objects protected against direct attack. Accordingly, IHL requires that, “in the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.”   This applies both to the attacking party to the conflict which must do everything feasible to avoid erroneous targeting or incidental harm as a result of its own operations, and to the attacked party, which must take all necessary measures to protect the civilian population under its control from the effects of attacks carried out by the enemy.

The fundamental principle that governs the means and methods of warfare, is that any belligerent, whether in an IAC or a NIAC, must distinguish between military objectives on the one hand and civilian persons and goods on the other. As provided by Protocol I, a distinction must be made at all times between the civilian population and combatants and between civilian objects and military objectives, and that operation must always be directed against military objectives.  Protocol I defines civilian objects as all objects which are not military objects. 

Underlying this rule is the principle that, even in an armed conflict, the only legitimate military action is that which is aimed at weakening the military potential of the enemy, whereas attacks on those who do not participate in the conflict are prohibited. The concretization of this principle in the rules of armed conflict means that the doctrine of ‘total war’ is repudiated: war must be conducted by limited means; belligerents cannot engage in attacks without giving consideration to whether the target actively participates in the armed conflict. 

One of the most important aspects of the principle of distinction elucidated in The Hague Regulations is the duty to distinguish between military and civilian objectives. Hence, attacks on the civilian population in order to lower the morale of the enemy and create a willingness amongst the civilian population to end the war are not allowed, even if some military advantage would be gained by taking such a course. Here, the rules of armed conflicts clearly repudiate the principle set out by Clausewitz, in his treatise on war, in which he states that war should not be limited for humanitarian reasons since such limits put the belligerent who respects them at a disadvantage when compared to an enemy who, hypothetically, does not respect such limits. On the contrary, the laws regulating armed conflicts asks that both belligerents respect some limitations on their ability to wage war and thus tries to establish a scheme by which humanitarian limitations on behavior may be obeyed reciprocally, by establishing the equilibrium between humanitarian considerations and military necessity.    

The prohibition of indiscriminate attacks is also introduced by this Protocol. Indiscriminate attacks as per this Protocol are analyzed from a three-angle perspective; these are attacks which cannot be directed to specific military objectives; they are also attacks carried out by employing means and methods which cannot be directed to any specific military objective; and finally, indiscriminate attacks are those whose effects cannot be limited under the rules laid down by IHL. When a lawful target is attacked and the infliction of incidental civilian harm cannot be avoided, the permissibility of the attack is subject to the principle of proportionality.

Contemporary armed conflicts have placed a heavy strain on the principle of distinction. These conflicts which are often of non-international character expose civilians to belligerent attacks. As industrial production has become the major driving force behind victory in armed conflicts, and such industrial production can only be sustained by work on the part of the population, the danger of such civilians being targeted has increased. Moreover, all civilians, even those not employed in producing industrial products essential for the war effort, ensure, through their support for the war, that the society remains in a state of combativeness. Therefore, the possibility that adverse belligerents may attempt to decrease civilian support for the war by direct attacks on civilians will increase. These challenges to the principle of distinction were first witnessed during World War II, and have been problematic in armed conflicts generally.

As earlier intimated above, it has always been more difficult to observe the principle of distinction in armed conflicts of non-international character. This is mainly because, armed groups recruit from the ranks of the civilian population and often adopt guerrilla tactics. Hence, their distinction from civilians is rendered more difficult. For this reason, the law requires that non-state armed groups distinguish themselves from civilians by some distinctive signs. Moreover, recent armed conflicts have shown that when the aim of the conflict is to practice ‘ethnic cleansing’, the attack on the civilians becomes unavoidable. In such cases civilians rather than combatants will be deliberately targeted. The same is true when warlords or armed bands start or continue a conflict for economic aims.  Despite these shortcomings, the principle of distinction is so fundamental that it should not be ignored for any reason whatsoever. To a very large extent, IHL stands or falls on its observance.

One of the facets of the principle of distinction is the prohibition placed of targeting or attacking of civilian persons. The origin of states’ obligation not to attack civilians could be traced to the Hague Regulations.  Moreover, the International Court of Justice in the Nuclear Weapons Advisory Opinion, expressed itself thus: 

The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack.

A civilian may be defined as any person who is not a combatant. The aim of this negative definition is to avoid the likelihood of loopholes arising in the law. If the law defined ‘civilians’ and ‘combatants’ separately and did not relate the two definitions to each other, there is a real possibility that a gap could be left, and a person could be seen as neither a civilian nor a combatant, and therefore be left without the protection of the LOAC. The attempt to avoid any such lacuna, and indeed any further uncertainties that operate to the detriment of civilians, is further reinforced by the presumption of civilian status. In cases of doubts as to the status of a person, Additional Protocol I provides thus:

In case of doubt whether a person is a civilian, that person shall be considered to be a civilian. It must be noted that the presence of isolated combatants amidst a majority civilian population does not alter the civilian character of that population as a whole and thus does not extinguish its immunity from attack. This is explicitly stated in Additional Protocol II as follows:

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.

However, there is one exception to these rules of immunity. Civilians who participate directly in the hostility lose their immunity during the period of that direct participation and also during any period in which they perform acts preparatory to the attack they intend to launch. To this effect Additional Protocol II provides thus:

Civilians shall enjoy the protection afforded by this section unless and for such time they take a direct part in hostilities.  

One will notice that the time-span during which civilians lose their protection is short and restrictively drawn. Immunity is lost only during the period in which they take a direct part in hostilities. Outside this time-span they can be arrested and tried for unlawful acts of warfare performed during the time they were combatants. However, they can no longer be targeted. The limited scope of the loss of immunity attempts to prevent abuses by an adverse belligerent. If the loss of immunity was not temporarily limited, a belligerent could always declare that such and such civilian had in the past participated in hostile acts and consequently was a legitimate target. Hence, the obligation not to attack civilians could be rendered largely illusory. Such a possibility is not merely fanciful; the arguments made by the Germans during world war II may be recalled.  Furthermore, it should be noted that intentional or reckless attacks on civilians are war crimes. 

One may recall that certain military persons also have immunities from attacks which at first glance, appears to be similar to the immunity possessed by civilians. This type of immunity from attack is, first of all granted to military persons who have been rendered hors de combat. Such personnel are those who have surrendered to the enemy or those that are wounded, sick or shipwreck. This is further elucidated by Additional Protocol I which provides:

A person who is recognized or who, in the circumstances, should be recognized to be hor de combat shall not be made the subject of attack

The above provision goes on to state that a person is hor de combat if, he is in the power of an adverse party; he clearly expresses an intention to surrender; or has been rendered unconscious or otherwise is incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape.

During times of armed conflict, states must act in such a way to ensure that the rule guaranteeing the immunity is workable. Hence, states must take all possible steps to ensure that military objectives are spatially separated from areas occupied by the civilian population and must avoid placing military objectives such as ammunition deposits, in a populated vicinity.

Moreover, each state has an obligation not to place civilians in particular positions with the aim of either protecting military objectives from attack or facilitating military operations. These prohibitions have the objective of sparing civilians from attack. It is clear that even if military objectives are placed in populated zones, or if civilians are deliberately located in the vicinity of military objectives, the opposing belligerent may still attack the military objectives.

However, during such an attack he or she may incidentally hit civilians in the surrounding area. Obviously, the attacking belligerent must take the presence of the civilians into account when weighing the proportionality of a planned attack. This does not detract from the fact that, if the attack goes ahead, the protection of civilians will be jeopardized; the aim of the rules that require ‘separation’ is to minimize the damage done to civilians during deliberate attacks.

On the other hand, one should note that the obligation to separate civilians from military objectives exist to the maximum extent feasible. The obligation may not be the same for a small, densely populated vicinity or a vast territory with many uninhabited areas in which military objectives can be installed without any threat to the local populace. The obligation requiring separation is clearly stated in Additional Protocol I as follows:

The Parties to the conflict shall, to the maximum extent feasible: without prejudice to Article 49 of the Fourth Convention, endeavor to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; avoid locating military objectives within or near densely populated areas; take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operation.

Another facet under the principle of distinction is the prohibition placed on the targeting or attacking of civilian objects. The origin of state obligation not to attack civilian objects could be traced to The Hague Regulations.  Today, the rule is set out in Additional Protocol I as follows:

                 “Civilian objects shall not be the object of attack or reprisals”   

Additional Protocol I define civilian objects as all objects which are not military objectives. The reason for this negative formulation is the same as that for negatively defining civilian persons, namely that such definition ensures that no gaps are left between the two categories. Moreover, one finds the legal presumption as to the character of an object: in cases of doubt, objects that are normally used for civilian purposes, such as churches, schools or commercial factories, must be presumed not to contribute to military action and hence not to be a military objective. Consequently, Additional Protocol I reads:

In cases of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used”

This presumption is sensible if one wishes to avoid massive civilian damage and constant errors in targeting. Obviously, it may be difficult to prove that an object normally dedicated to civilian use is in fact being used militarily, since that will normally be done in a hidden manner. However, if the presumption of civilian use did not exist, belligerents could target civilian objects on the slightest suspicion and civilians will suffer great losses.  At the same time objects that are targeted on the basis of suspicion would often be revealed to have been devoted to civilian purposes. From the view point of both civilians and belligerents, this would not be an efficient way to conduct hostilities.

It is therefore essential to ascertain what a military objective is. The modern laws on armed conflicts have abandoned any attempt to provide a list of such objectives, even a non-exhaustive one. Today, the term military objective is defined in a purely relative and relational way. It is therefore important to examine a provision of Additional Protocol I dealing with military objective. According to this provision:

Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.   

A short analysis of this provision elicits some important insights. The definition of military objectives which may be targeted and attacked, is composed of two cumulative criteria. There are two requirements which must be present at the time in order to make goods or facilities liable to attack; firstly, an object must make an effective contribution to military action; secondly, the planned attack against the object must, in this particular case, offer a definite military advantage. In short, an object must be used militarily and the planned attack must offer a concrete military advantage. By requiring these two criteria to be fulfilled before an object may be attacked, the law attempts to restrict the objects liable to be targeted.     

For the object to make an effective military contribution it means that objects which are simply hypothetical or merely possible military uses will not be seen as military objectives.  Moreover, only military use of the object is relevant. If the political, economic, social or psychological importance of the object was used to determine whether the object could be classified a legitimate military objective, the assessment would become highly speculative and the category of objects that are liable to attack almost boundless, since in modern armed conflicts, almost all objects make some contribution to the continuation of the war effort of a belligerent. The principle of distinction would in this case be rendered largely nugatory. 

Moreover, an attack that is planned to target a particular object that makes an effective military contribution must result in a military advantage. This advantage has to be definite and concrete, not hypothetical, possible or eventual. The advantage anticipated must be a military advantage, and must not be any other type of advantage, such as a political propaganda gain. A military advantage consists of gaining ground or destroying or weakening the enemy’s armed forces.

The expression ‘concrete and direct’ was intended to show that the advantage concerned should be substantial and relatively immediate, and that an advantage that is hardly perceptible or which would only appear in the long term should be disregarded. The judgment that must be made here is purely relative and contextual. This is because an object that, when considered in the abstract, serves a military purpose may not be attacked, under the given definition, if a definite military advantage will not be gained by its destruction. Hence, a military aircraft escaping from the combat area towards a third state in order to surrender, where the third state is neural and having therefore under IHL the duty to intern that aircraft up until the end of war, would not be liable to attack. The aircraft will make no further contribution to the war.  There is thus no definite military advantage to be gained from attacking it.

An obsolete military installation that contains ammunition that is no longer issued to the troops of the adverse belligerent and which therefore does not or cannot serve any further military purpose may not be attacked, because such an attack would not result in a definite military advantage. This result could also be achieved by saying that such attacks are not necessary for the achievement of the war aim and are thus prohibited by virtue of the principle of necessity. The crucial point is obviously the specific information available to the attacker: he or she may not know that an aeroplane is attempting to escape, at least at the beginning of the flight, and he or she may not know that an installation is not used for military   purposes or cannot be used for such purposes.                

2.1.2 The Principle of Proportionality as a Measure of Protection

Apart from the principle of distinction, Additional Protocol I also makes provision for the principle of proportionality of attacks.  This principle stipulates that; combatants must refrain from attacks where civilian losses will be excessive in relation to the military advantage anticipated.  The principle of proportionality prohibits attacks which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination of both, which would be excessive in relation to the concrete and direct military advantage anticipated.  Given that direct attacks against civilians and civilian objects are already prohibited, the proportionality evaluation is relevant only when attacks are directed against lawful targets. 

The key term to be examined in the proportionality equation is the term “excessiveness”. While the requirement of proportionality is absolute, the standard for “excessiveness” is relative. IHL does not establish an objective threshold above which the infliction of incidental harm would always be excessive. In principle, targets with a comparatively high military value will justify greater incidental harm than targets with a comparatively low military value. Although the proportionality assessment necessarily contains subjective elements, a certain degree of objective guidance can be derived from the terminology used in the treaty text. Thus, the infliction of incidental harm on protected persons or objects can only be justified by advantages of a “military” nature, and not by political, economic or other non-military benefits.

Moreover, the anticipated military advantage must be “concrete” and “direct” and not of a merely hypothetical, speculative or indirect nature. It must also be expected to result from a specific attack or operation, and not from a military campaign as a whole. Therefore, the overarching intention of “winning the war” cannot, as such, serve to justify the infliction of incidental harm on persons and objects protected against direct attack.

When assessing the excessiveness of incidental harm, the foreseeable second-and third-order effects of an attack must be taken into account. For example, attacks against dual-use infrastructure such as electrical grids or telecommunication networks, may not only have the immediate effect of preventing the enemy from using that infrastructure for military purposes and exposing the civilian population to short-term shortages.

They may well have a crippling effect on the medium-and long term ability of the civilian authorities and medical services concerned, and of the general civilian population, to cope with the everyday consequences of the war.    As per this principle, there are three steps that parties to a conflict must take before carrying out any attack. Firstly, they need to identify the specific military objective; secondly, they must consider the vicinity and thirdly, the weaponry used. The balance between military necessity and humanitarian considerations is thus relevant. 

2.1.3 The Principle of Precaution as a Measure of Protection

The third Principle that guarantees the protection of civilians as per Protocol I, is the Principle of Precaution. Based on this principle, both combatants and the civilian population are to take strict measures to avoid or minimize the effects of military operation on the civilian population, civilians, and civilian objects. For this principle to be effective, planners are needed to select the means and methods of attacks that will limit the rate of damage to the civilian population. In addition, the rule stipulates that parties ought to remove civilians and civilian objects from the vicinity of military objectives and also ensure that, military objectives are not installed within densely-populated areas. They are also expected to establish warning and evacuation systems including the construction of bomb shelters.   

Even after an attack has been commenced, it must be cancel or suspended should it become apparent that the target was mistakenly regarded as a military objective.  IHL requires not only the attacker, but also the party affected by enemy attacks to take precautionary measures. Thus, belligerent parties must take all feasible precautions to protect the civilian population and civilian objects under their control against the dangers resulting from military operations.  Most notably, this obligation means that belligerents have a duty, to the maximum extend feasible, to avoid locating military objectives within or near densely populated areas and to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives.

 The duty of precaution both in attack and against the effect of attack is limited to taking those precautionary measures that are feasible. Under IHL, feasible precautions are those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations. Therefore, the feasibility of precautionary measures will depend on a multitude of factors, such as the available intelligence, the level of territorial control, the precision of available weapons, the urgency of military actions and the cost and risks associated with additional precautionary measures.  Also, while arm forces can and must be expected not to position anti- air craft batteries inside population centres, it would hardly be possible to separate dual-use installation such as bridges, railway stations, and airports from the civilian surroundings they are designed to served. In practice, commanders ultimately will have to decide on the feasibility of precautions on the basis of their own assessment of the information available to them at the time.

  Also, new rules relating to the treatment of the deceased, cultural artefacts, and dangerous targets such as dams and nuclear installations are introduced by this Protocol. It is worth mentioning that, it is the responsibility of military commanders, in particular, to see that these rules are observed.  

          Also of utmost importance, is the obligation imposed on parties to an armed conflict to ensure the protection of the civilian population in occupied territories. According to Article 42 of The Hague Regulations, an occupied territory is one that has been placed under the authority of hostile army and the territory is only limited to the area over which the hostile army has authority over. While article 2(2) provides that this definition shall apply both to partial and total occupation of the territory of a High Contracting Party even if such occupation meets with no resistance. The International Court of Justice in The Democratic Republic of Congo v. Uganda case, the court noted that in order to determine whether a state is actually an occupying power, authority must be exercised by that party.

             The military occupation of the enemy territory is termed ‘belligerent occupation’ and international law establishes a legal framework concerning the legal relations of occupier and occupied. There are two key principles for the establishment of an occupation in this sense; first, that the former government is no longer capable of publicly exercising its authority over the area in question publicly and, secondly that the occupying power is in a position to substitute its own authority for that of the former government.[7]

Occupation will cease immediately the occupying power is forced or evacuated out the said area. Article 43 of The Hague Regulations lay down the essential framework of the law of occupation. This provision notes that’ the authority of the legitimate power having in fact passed into the hands of the occupants, the latter shall take all measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.[8]

              This establishes several elements; Firstly, just authority and not sovereignty passes to the occupier.[9] Secondly, the basis of authority lies in effective control. Thirdly, the occupier has both the obligation and the right to maintain public order in the occupied state to ensure that civilians can go on with their normal daily engagements. Fourthly, the existing laws of the territory must be preserved as far as possible. As per article 47 of The Hague Regulations, persons protected under the convention cannot be deprived in any case or in any manner whatsoever of the benefits contained in the convention by any change introduced as a result of the occupation or any agreement between the authority of the occupied territory and the occupying power.

              Article 49 prohibits mass forcible transfers or deportation of protected persons from the occupied territory irrespective of the motive and the occupying power shall not be allowed to deport or transfer part of its civilian population into the territory it occupies.[10] Other provisions refers to the prohibition of forced work or conscription of protected persons and also prohibits the destruction of real or personal property except where rendered absolutely necessary by military operations and of any alteration of the status of public or judicial officials.[11] The occupying power has to ensure adequate food and medical supplies and if not, to facilitate relieve schemes.[12] Article 70 is to the effect that, protected persons shall not be arrested prosecuted or convicted for acts or opinions expressed before the occupation, apart from breaches of the laws of war.[13]

          Based on the above, the power in occupation has the primary duty to ensure for the protection of the civilian population[14]. An important case in point is that arising from Resolution 1483 (2003) of the UN security council after a coalition military action against Iraq, reaffirming the position of US and UK as occupying powers in Iraq under International Law, but placing upon them the responsibility to ensure the protection of the Iraq’s people including creating conditions in which the Iraq’s people can freely determine their own political future[15].

3.0 Challenges to the Protection Agenda

Despite all that has been done to guarantee the protection of the civilian population, civilians are still being subjected to all forms of inhuman and degrading treatments in armed conflicts. This is as a result of the numerous challenges involved in the implementation of the fundamental principles of International Humanitarian Law.

Since the end of the Cold War, armed conflicts have become increasingly asymmetric, typically pitting overwhelmingly powerful States against often poorly organized and equipped armed groups. Prime examples of such conflicts are the multinational campaign against the Taliban in Afghanistan and recurrent Israeli operations against Hannas in the Gaza Strip and more recently the armed conflict in the Anglophone regions of Cameroon.

The enormous technological and military superiority of states involved has led opposition groups to avoid identification and defeat by moving underground, intermingling with the civilian population and engaging in various forms of guerrilla warfare. As a result, military confrontations often take place in the midst of densely populated areas, which not only exposes the civilian population to increased risks of incidental harm, but also facilitates the direct participation of civilians in hostilities. Thus, undermining the fundamental principle of distinction.

Moreover, unable to prevail in direct confrontations with the enemy, armed groups are increasingly tempted to resort to means and methods prohibited by IHL State armed forces, in turn, are often unable to properly identify the adversary and bear an increased risk of being attacked by persons they cannot distinguish from the civilian population. Generally, this trend has put considerable strain on the concepts non-reciprocity and the equality of belligerents and, unfortunately, on the willingness of both state and non-state armed groups to accept their obligations under IHL.     

More so, as indicated above, it has always been more difficult to observe the principle of distinction in armed conflicts of non-international character. This is mainly because, armed groups recruit from the ranks of the civilian population and often adopt guerrilla tactics. Hence, their distinction from civilians is rendered more difficult. For this reason, the law requires that non-state armed groups distinguish themselves from civilians by some distinctive signs.

Moreover, recent armed conflicts have shown that when the aim of the conflict is to practice ‘ethnic cleansing’, the attack on the civilians becomes unavoidable. In such cases civilians rather than combatants will be deliberately targeted. The same is true when warlords or armed bands start or continue a conflict for economic aims.  Despite these shortcomings, the principle of distinction is so fundamental that it should not be ignored for any reason whatsoever. To a very large extent, IHL stands or falls on its observance.

Consequently, the major setback in observing the supremacy of jus in bello in armed conflict especially of non-international character is the asymmetric nature of these conflicts. It is worthy of note that, non-international armed conflicts usually involve state armed forces against non-state armed groups whom most often than not appear in civilian attires. Consequently, it becomes very difficult if not impossible in some cases to decipher which party is responsible for a breach of IHL. 

Also in most cases, it is extremely difficult if not impossible to distinguish combatants from civilians. Thus every civilian is a potential combatant and every combatant can equally claim not to be a combatant. This scenario makes it extremely daunting in some circumstances to observe the principle of distinction and state forces may rely on this difficulty to disregard the fundamental safeguards which seek to protect victims of non-international armed conflicts.

In addition, there exist almost an uncountable number of Non-state armed groups in the two Anglophone regions of Cameroon. As a result, hoodlums have also taken advantage of the conflict to carry out their operations under the umbrella of Non-state armed groups thus, making respect of the supremacy of jus in bello over jus ad bellum in armed conflict a nightmare. More to that, some individuals are using the conflict as an avenue for revenge thus, out-rightly violating jus in bello. The disregard of the supremacy of jus in bello coupled with the asymmetric nature of the conflict in the Northwest and Southwest regions of Cameroon provokes the need for a peaceful resolution of the conflict in the two Anglophone regions of Cameroon. The next chapter of this study is dedicated to this purpose.

One of the greatest challenges in implementing the protection mandate of civilians are deliberate attacks targeted at the civilian population, thereby violating deliberately, fundamental Principles of International Humanitarian Law. In 2010 while identifying certain areas in which International Humanitarian Law should be strengthened, the President of the International Committee of the Red Cross (ICRC) reiterated that, “what is required in most cases is greater compliance with the existing legal framework, not the adoption of new rules.”

Another pertinent challenge to the protections mandate is the use of nuclear weapons especially in urban areas where civilians and civilian objects are concentrated[16].  The UN secretary General in charge of Humanitarian affairs in 2006 condemned the use of cluster bombs by Israeli military in the conflict between Israel and Hezbollah. The UN top official described the act as “Immoral” due to their indiscriminate and disproportionate effects.

          On a nutshell, the protection of all civilians remains a humdrum task. Most at times, it is only possible to save or ensure the protection of a limited number of civilians at a time thereby, making the protection of civilians in general seemingly impracticable.

Conclusion and Recommendations

The Protection of the civilian population remains pivotal in all situations of conflicts. Regrettably, most belligerents involved in armed conflicts possess little or no knowledge of the fundamental principles regulating the conduct of hostilities as provided by International Humanitarian Law. Consequently, much work still needs to be done at all levels to ensure that parties to armed conflicts are sufficiently equipped with the minimum safeguards established under IHL to limit the gruesome and grisly consequences of war on the civilian population.

In addition, there should be a thorough examination of the current International norms protecting civilians and in particular, the way in which such norms are implemented.

The use of nuclear weapons and other weapons whose consequences cannot be limited under IHL especially in urban areas where civilians and civilian objects are concentrated should be limited and minimized to the greatest extent possible if not completely prohibited.

A system should be put in place to ensure that parties to armed conflicts observe the unchallenged rules of International Humanitarian Law and also track down those who carry out deliberate violations and hold same accountable.

The volume of international transfer of major weapons has been rising steadily since the early 2005. According to the Stockholm Internal Peace Research Institute, states should adopt legislation and other measures conditioning the export of arms in accordance to the fundamental rules of International Humanitarian law including pre-export assessment of the risk of unlawful use in line with the arm trade treaty and several regional treaties.

States should ensure better protection and assistance of the civilian population while prohibiting forcible displacements both within and without the state and uphold their rights. States should therefore take all measures to ensure that displaced persons are provided alternative accommodation while working on how to help them return to their homes at the close of hostilities.

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[1] The Secretary-General for Humanitarian Affairs briefing the Security Council said the past years have witnessed some of the most horrendous acts of violence carried out against the civilian population.

[2] Corn,Geoffrey “The Law of Armed Conflict: an operational approach” (New York: Wolters Kluwer Law and Business), 2012.

[3] Article 6 of the Fourth Geneva Convention

[4] Customary International Law is binding on all states without exception and without the need for ratification by states.

[5] Article 4 of the Fourth Geneva Convention

[6] Article 1 Common to the Geneva Conventions

[7] UK Manual, p.275.

[8] ICJ Reports 2004, pp. 136.

[9]Prefecture of Voiotia v. Germany (Distomo Massacre) Court of Cassation, Greece, 4 May 2000, 129ILR, pp. 514.

[10] Kretzmer, Occupation of Justice, Chapter 5.

[11] Security Council Resolution 1472 (2003), concerning the March-April 2003 Military operation by coalition forces in Iraq.

[12]Articles 55, 56, 59 and 60 of the Hague Regulations

[13] Section IV consists of regulations concerning the treatment of internees.

[14] Hague Regulations section III

[15] Iraq, Law of occupation, House of commons Research Paper 03/51, 2 June 2003

[16] Article 35(2) of Protocols and the preamble to the 1980 convention on conventional weapons