Treatment of Civilians in the Context of War and Neutrality: A Public International Law Analysis

1. Introduction

In the context of war and neutrality, the treatment of civilians has become a cornerstone of modern international law, especially within the frameworks of International Humanitarian Law (IHL) and Customary International Law. The key objective is to protect civilians from the dangers of armed conflict and ensure their humane treatment. These protections are enshrined in various international conventions, customary principles, and jurisprudence from judicial and arbitral settlements.

2. Legal Framework Governing the Treatment of Civilians

The primary legal instruments governing the treatment of civilians during armed conflicts are:

Geneva Conventions of 1949 (particularly the Fourth Geneva Convention).
Additional Protocols to the Geneva Conventions of 1977 (especially Additional Protocol I).
Customary International Humanitarian Law as codified by the International Committee of the Red Cross (ICRC).
Hague Regulations of 1907.
International Criminal Court (ICC) Statute under the Rome Statute of 1998.
UN Security Council Resolutions (binding, under Chapter VII of the UN Charter).
Jurisprudence from International Courts and Arbitral Tribunals (ICJ, ICTY, ICTR, etc.).

The legal obligations concerning civilians apply during international armed conflicts (IAC) and, in some cases, during non-international armed conflicts (NIAC), although the specifics may vary.

3. Core Principles Protecting Civilians

a. Distinction

One of the most important principles in IHL is the rule of distinction — the obligation of parties to an armed conflict to distinguish at all times between civilians and combatants, and between civilian objects and military objectives (Article 48, Additional Protocol I). Civilians should not be the object of direct attack.

b. Prohibition of Attacks on Civilians

Under customary international law and treaty law, deliberate attacks on civilians are strictly prohibited (Geneva Conventions, Article 51 of Additional Protocol I). Civilians are defined as individuals who do not take a direct part in hostilities. Targeting civilians constitutes a grave breach and a war crime under the Rome Statute of the ICC.

c. Proportionality

The principle of proportionality prohibits attacks where the incidental loss of civilian life or injury to civilians, or damage to civilian objects, would be excessive in relation to the concrete and direct military advantage anticipated (Article 51(5)(b), Additional Protocol I). Violations of this principle may also lead to individual criminal liability.

d. Precautionary Measures

Before launching an attack, parties must take all feasible precautions to avoid, or at least minimize, civilian harm (Article 57, Additional Protocol I). This includes:

Verifying that the target is a lawful military objective.
Providing effective advance warning of attacks likely to affect the civilian population unless circumstances do not permit.
Avoiding attacks if the expected harm to civilians is disproportionate to the anticipated military advantage.

e. Prohibition of Indiscriminate Attacks

Indiscriminate attacks are those that strike military targets and civilians without distinction, or are not directed at a specific military objective. Indiscriminate use of weapons or methods of warfare is prohibited under Articles 51 and 52 of Additional Protocol I.

4. Special Protections for Vulnerable Civilian Groups

a. Women and Children

Women and children enjoy special protections under both the Geneva Conventions and customary international law. Article 76 of Additional Protocol I provides that women must be the object of special respect and protection, particularly against any form of indecent assault. Children are entitled to care and aid, and the recruitment of children under 15 into armed forces is prohibited under the Additional Protocols and the Rome Statute.

b. Medical Personnel and Humanitarian Workers

Medical personnel, humanitarian workers, and other civilians engaged in relief operations enjoy protection under the Geneva Conventions and Additional Protocol I. Deliberate attacks on such persons constitute war crimes.

c. Prisoners of War (POWs) and Civilians under Occupation

The Fourth Geneva Convention also protects civilians under occupation and civilians in the hands of an adversary (non-nationals of the detaining power). Such civilians are entitled to humane treatment, and the detaining power must respect their rights to family life, religious practices, and personal dignity.

5. Prohibitions Related to Civilians under Occupation

The Fourth Geneva Convention sets detailed rules regarding the treatment of civilians in occupied territories. It prohibits:

Deportation of civilians to another territory (Article 49).
Collective punishment (Article 33).
Taking of hostages (Article 34).
Pillaging (Article 33).
Reprisals against protected persons and their property (Article 53).

The Occupying Power has duties to ensure the basic needs of the civilian population, including food, medical supplies, and public health. Arbitrary displacement and transfer of civilians within or outside the occupied territory is also prohibited.

6. War Crimes Related to the Treatment of Civilians

Under the Rome Statute of the ICC, specific war crimes relating to civilians include:

Direct attacks on civilians (Article 8(2)(b)(i)).
Killing or causing serious injury to civilians (Article 8(2)(a)(i)–(ii)).
Torture, inhumane treatment, and outrages upon personal dignity (Article 8(2)(a)(ii)).
Use of starvation as a method of warfare (Article 8(2)(b)(xxv)).
Forcible transfer of populations (Article 8(2)(a)(vii)).
Rape and sexual violence against civilians (Article 8(2)(b)(xxii)).

7. Judicial and Arbitral Settlements on Civilian Treatment

International courts and tribunals have developed substantial jurisprudence related to the protection of civilians. These include:

International Court of Justice (ICJ) rulings on the legality of the use of force and obligations under IHL (e.g., the Nicaragua v. United States case).
International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) have prosecuted individuals for war crimes involving attacks on civilians, sexual violence, and displacement.
International Criminal Court (ICC) rulings on cases such as the Lubanga and Katanga cases, which have set important precedents on the recruitment of child soldiers and attacks on civilian populations.

8. Treatment of Civilians in Non-International Armed Conflicts

While much of IHL is developed around international conflicts, civilians are also protected during non-international armed conflicts (NIACs). The primary sources of law for NIACs are:

Common Article 3 of the Geneva Conventions.
Additional Protocol II (applicable in non-international conflicts).
Customary International Law.

In NIACs, civilians are similarly protected from direct attacks, indiscriminate violence, and other abuses. However, the legal regime is less detailed compared to IACs, though still robust under customary law.

9. Role of Neutral States

Under the law of neutrality, states not involved in a conflict have obligations to ensure their territory is not used to support belligerent operations. They are also required to offer asylum or refuge to civilians fleeing the conflict. Neutral states have humanitarian obligations, but they must refrain from actions that would jeopardize their neutral status.

10. Conclusion

The treatment of civilians during armed conflict is a critical aspect of both public international law and international humanitarian law. Through treaties, customary norms, and jurisprudence, the international community has established stringent protections for civilians to mitigate the horrors of war. Violations of these protections not only undermine the human rights of civilians but also constitute serious international crimes, which are subject to prosecution under international criminal law.