Civilian


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Civilians under international humanitarian law are "persons who are not members of the armed forces" and are not "combatants if they [do not] carry arms openly and respect the laws and customs of war".[1] It is slightly different from a non-combatant, as some non-combatants are not civilians (for example, military chaplains attached to the belligerent party or military personnel 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 the Fourth Geneva Convention. The privileges that they enjoy under international law depends on whether the conflict is an internal one (a civil war) or an international one.

In some nations, uniformed members of civilian police or fire departments colloquially refer to members of the public as civilians.[2]

Etymology[edit]

The word "civilian" goes back to the late 14th century and is from Old French civilien. 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 taking part of hostilities in time of war, rather than just civilians.[3]

Legal usage in war[edit]

The International Committee of the Red Cross 1958 Commentary on 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War states: "Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. 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."[4] 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."[5][6][7][8][9]

Article 50 of the 1977 Protocol I Additional to the Geneva Conventions provides:[9]

  • 1. 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 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.
  • 2. The civilian population comprises all persons who are civilians.
  • 3. 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.

The definition is negative and defines civilians as persons who do not belong to definite categories. The categories of persons mentioned in Article 4A(1), (2), (3) and (6) of the Third Convention and in Article 43 of the Protocol I are combatants. Therefore, the Commentary to the Protocol pointed 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 51 describes the protection that must be given to the civilian population and individual civilians.

Chapter III of Protocol I regulates the targeting of civilian objects. Article 8(2)(b)(i) of the 1998 Rome Statute of the International Criminal Court also includes this in its list of war crimes: "Intentionally directing attacks against the civilian population as such or against individual civilians not taking part in hostilities". Not all states have ratified 1977 Protocol I or the 1998 Rome Statute, but it is an accepted principle of international humanitarian law that the direct targeting of civilians is a breach of the customary laws of war and is binding on all belligerents.

Civilians in modern conflicts[edit]

The actual position of the civilian in modern war remains problematic.[10] 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.[11]

Starting in the 1980s, it was often claimed that 90 percent of the victims of modern wars were civilians.[12][13][14][15] 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.[16]

Wounded civilians arrive at a hospital in Aleppo during the Syrian civil war, October 2012

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."[17]

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.[18] 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.[19]

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 (IHL)[edit]

International humanitarian law (IHL) codifies treaties and conventions, signed and enforced by participating states, which serve to protect civilians during intra and interstate conflict. Even for non-treaty participants, it is customary for international law to still apply.[20] Additionally, IHL adheres to the principles of distinction, proportionality, and necessity; which apply to the protection of civilians in armed conflict.[20] Although, despite the UN deploying military forces to protect civilians, it lacks formal policies or military manuals addressing exactly these efforts.[21] The UN Security Council Report No 4: Protection of Civilians in Armed Conflict provides further evidence of the need for protection of civilians. Recognizing that large-scale civilian insecurity threatens international peace and stability, the UN aims to establish the means of protecting civilians and thereby work to ensure regional stability.[22] Through the UN Security Council Report No 4, first published in 2008, the UN offers ways to support civilian protections in both intra and interstate conflict with a goal of encouraging regional states to police their own conflicts (such as the African Union policing African conflicts).[22] Similarly, the UN Secretary-General Kofi Annan reminded UN Member states that they have common interests in protecting African civilians through a shared “commitments to human security, and its rationale of indivisibility of peace and security.”[23]

Through a series of resolutions (1265, 1296, 1502, 1674, & 1738) and presidential statements the UN Security Council “addresses:

  • compliance with international humanitarian law and relevant human rights law, accountability for violations and humanitarian access;
  • the role of UN peacekeeping operations or other UN-mandated missions;
  • protection of specific groups;
  • the impact of small arms; and
  • regional cooperation.

The Security Council is now involved in the protection of civilians in five main areas of action.

  • It reinforces general norms—in particular the rules of international humanitarian law.
  • It uses its Chapter VII powers to mandate either UN peacekeeping missions or regional organizations or groups of member states to take measures including the use of force to protect civilians.
  • It can develop middle ground using its Chapter V, VI and VIII powers to influence parties to conflict in country-specific situations to observe protection norms.
  • It uses its Chapter VI powers to try to prevent or limit the outbreak of armed conflict through mediation and other initiatives.
  • Finally, the Council can hold parties accountable for violations of international humanitarian law by imposing targeted measures, establishing commissions of inquiry, authorizing ad hoc tribunals or referring situations to the International Criminal Court (ICC).”[24]

In response to presidential statements and previous subcommittee work, the UN Security Council held a meeting in January 2009, specifically to address the protection of civilians within the context of the IHL.[24] While no specific outcome followed this meeting, it did lead to the production of a 10-year assessment of Council actions since the passing of resolution 1265 in 1999.[24]

In addition to the UN treaties, regional treaties have also been established, such as the African Union Constitutive Act Article 4(h) which also outlines the protection of civilians and “affords the Union a right to forcibly intervene in one of its member states in ‘grave circumstances’, namely war crimes, genocide and crimes against humanity.”[25] This is proposed to indicate the African Union will no longer stand by to watch atrocities happen within the Union. As described by Said Djinnit (AU’s Commissioner for Peace and Security) in 2004, “Africans cannot [...] watch the tragedies developing in the continent and say it is the UN’s responsibility or somebody else’s responsibility. We have moved from the concept of non-interference to non-indifference. We cannot, as Africans, remain indifferent to the tragedy of our people”[26] (IRIN News 2004). Although Article 4(h), while drafted, has not been activated, which raises the question of the AU's willingness to intervene in situations of “grave circumstance.”[27]

Regardless of the lead organization (UN, AU, other) “there is clearly a risk involved for international organizations that in assuming a complicated security role such as civilian protection, they may raise expectations among local populations that cannot be met, usually not even by large-scale peace operations with a comprehensive political component, supported by high force levels, overall professionalism, and the political stamina to stay present long-term. The disappointing outcomes, in Africa and elsewhere, have led some to criticize the way in which the decentralization policies have been implemented (MacFarlane and Weiss 1992; Berman 1998; Boulden 2003).”[28]

Civilians in domestic law[edit]

Most nations clearly distinguish military authorities from the civil administration via the national constitution; or else in statute law where no codified constitution exists. This usually serves to place control of military forces under the presiding civilian government. "Civilian" is frequently provided as a negative definition where anyone who is not a member of the military is (by default) a civilian. In keeping with IHL, this offers no intermediary status.[29]

Involvement and jurisdiction of the armed forces in civil affairs varies from nation to nation.

In France and Italy, the National Gendarmerie and Carabinieri are military agencies permanently tasked to supporting domestic civilian law-enforcement, usually focussed on serious organised crime and counter-terrorism. Until 2008, the South African Commando System (a volunteer militia within the South African Army) assisted the Police Service in rural areas until they were replaced by specialised Police units. Section 201 of the South African constitution allows military forces to assist Police only with Presidential approval.[30]

The British military does not intervene in law enforcement matters other than by exceptional ministerial approval. During the 1980 Iranian Embassy Siege, the Metropolitan Police were able to request military support. The Prime Minister approved the deployment of the SAS. Unarmed military personnel deploy in support for natural disasters, bomb disposal, etc. under MACA.[31][32]

By contrast, German law prohibits entirely the peacetime intervention of military forces within Germany in armed roles. Military personnel may only be deployed in unarmed roles such as disaster relief efforts. This was found to be deeply restrictive during the 1972 Munich massacre when army snipers could not be deployed to assist Munich Police. GSG 9 was later formed within the Bundesgrenzschutz to provide an armed tactical capability within the civilian law enforcement structure.[33]

In the US, the 1878 Posse Comitatus Act forbids the use of the US Army for law enforcement purposes without the approval of Congress. A 2013 directive clarified that this included the Navy, Air Force and Marine Corp. In practice there are many nuances to this. The most notable being that the US Coast Guard operates under the U.S. Department of Homeland Security during peacetime but can be transferred to the U.S. Department of the Navy and rendered "military" during times of war. The US National Guard are organised at a State level and under mixed control. Under Title 32, State Governors may deploy National Guard personnel in support of civilian law enforcement - Posse Comitatus would only apply to personnel activated under Title 10 and operating under federal control.[34][35][36]

Colloquial usage[edit]

In colloquial usage, the term is sometimes used to distinguish non-military law enforcement officers and (in the US) firefighters from support staff or the general public. Regardless, such members are civilians - not military personnel - and are bound by municipal; civil and criminal law to the same extent as other members of the public.

In the United Kingdom, Australia and New Zealand the term "civilian staff" can refer to police employees who are not warranted constables.[37][38][better source needed] In keeping with Peelian Principles, the term "member of the public" is preferred for general usage to avoid suggesting that Police are something other than civilian.

In the U.S., "Civilian oversight" or "Citizen oversight" is used to distinguish external committees (typically monitoring police conduct on behalf of civil administrations and taxpayers) from the internal management structure.[39][40]

See also[edit]

References[edit]

  1. ^ "civilian". Oxford English Dictionary. Oxford University Press. 2021. Retrieved 2021-10-04. A person who is not professionally employed in the armed forces; a non-military person.
  2. ^ "CIVILIAN". Cambridge Dictionary.
  3. ^ "the definition of civilian". Dictionary.com. Archived from the original on 3 December 2013. Retrieved 2 May 2018.
  4. ^ Jean Pictet (ed.) – Commentary on Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (1958) Archived 2007-07-12 at the Wayback Machine, p. 51. 1994 reprint edition.
  5. ^ The relevance of IHL in the context of terrorism Archived 2006-11-29 at the Wayback Machine official statement by the ICRC 21 July 2005
  6. ^ "Armed Forces Act 2006, Section 357". legislation.gov.uk. HM Government. 1 October 2010. Retrieved 4 October 2021.
  7. ^ "UCMJ, 64 Stat. 109, 10 U.S.C. § 802". Legal Information Institute. Cornell Law School. Retrieved 4 October 2021.
  8. ^ "Customary IHL - Rule 5. Definition of Civilians". ihl-databases.icrc.org. Retrieved 2020-07-04.
  9. ^ a b "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. DEFINITION OF CIVILIANS AND CIVILIAN POPULATION". International Committee of the Red Cross.
  10. ^ Hugo Slim, Killing Civilians: Method, Madness and Morality in War, Hurst, London, 2008.
  11. ^ Slim, Hugo (2003). "Why Protect Civilians? Innocence, Immunity, and Enmity in War". International Affairs. 79 (3): 481–501. doi:10.1111/1468-2346.00318.
  12. ^ 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."
  13. ^ Graça Machel, "The Impact of Armed Conflict on Children, Report of the expert of the Secretary-General, 26 Aug 1996, p. 9. Archived 2009-07-23 at the Wayback Machine
  14. ^ Mary Kaldor, New and Old Wars: Organized Violence in a Global Era, Polity Press, Cambridge, 1999, p. 107.
  15. ^ Howard Zinn, Moises Samam, Gino Strada. Just war, Charta, 2005, p. 38.
  16. ^ Adam Roberts, "Lives and Statistics: Are 90% of War Victims Civilians?", Survival, London, vol. 52, no. 3, June–July 2010, pp. 115–35. Archived 2017-02-05 at the Wayback Machine Print edition ISSN 0039-6338. Online ISSN 1468-2699.
  17. ^ 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. ISBN 978-90-6704-335-9; ISSN 1389-1359. One part of this article, relating to casualties, also appeared in Survival, June–July 2010, as footnoted above.
  18. ^ 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.
  19. ^ 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 [1], pp. 179-96 and 213-30.
  20. ^ a b "IHL Primer #1 - What is IHL?" (PDF). International Humanitarian Law Research Initiative. July 2009. Archived (PDF) from the original on 2017-12-11. Retrieved November 11, 2017.
  21. ^ Holt, Victoria K.; Berkman, Tobias C. (2006). The Impossible Mandate? Military Preparedness, the Responsibility to Protect and Modern Peace Operations. The Henry L. Stimson Center. p. 9. ISBN 9780977002306.
  22. ^ a b Bergholm, Linnea (May 2010). "The African Union, the United Nations and Civilian Protection Challenges in Darfur" (PDF). Refugee Studies Centre Working Paper Series. Paper No. 63: 14. Archived (PDF) from the original on 2018-05-02.
  23. ^ Bergholm, Linnea (May 2010). "The African Union, the United Nations and Civilian Protection Challenges in Darfur" (PDF). Refugee Studies Centre Working Paper Series. Paper No. 63: 17. Archived (PDF) from the original on 2018-05-02.
  24. ^ a b c "UN Security Council Report No 4: Protection of Civilians in Armed Conflict". Retrieved November 12, 2017.
  25. ^ Bergholm, Linnea (May 2010). "The African Union, the United Nations and Civilian Protection Challenges in Darfur" (PDF). Refugee Studies Centre Working Paper Series. Paper No. 63: 8. Archived (PDF) from the original on 2018-05-02.
  26. ^ "African Union stresses importance of conflict resolution and peacekeeping". IRNI News. 28 June 2004. Archived from the original on 2017-12-10. Retrieved November 12, 2017.
  27. ^ Bergholm, Linnea (May 2010). "The African Union, the United Nations and Civilian Protection Challenges in Darfur" (PDF). Refugee Studies Centre Working Paper Series. Paper No. 63: 9. Archived (PDF) from the original on 2018-05-02.
  28. ^ Bergholm, Linnea (May 2010). "The African Union, the United Nations and Civilian Protection Challenges in Darfur" (PDF). Refugee Studies Centre Working Paper Series. Paper No. 63: 11. Archived (PDF) from the original on 2018-05-02.
  29. ^ "Preach What You Practice: The Separation of Military and Police Roles in the Americas" (PDF). wola.org. Washington Office on Latin America. November 2010. Retrieved 15 November 2021.
  30. ^ "South African Constitution, Chapter 11". South African Justice Department. Retrieved 15 November 2021.
  31. ^ "Military Aid to the Civil Authorities for activities in the UK". gov.uk. Ministry of Defence. 4 August 2016. Archived from the original on 12 August 2021. Retrieved 15 November 2021.
  32. ^ "Requests for Military Aid to the Civil Authorities (MACA) from the NHS in England". NHS England. NHS England. 27 July 2017. Archived from the original on 17 January 2021. Retrieved 15 November 2021.
  33. ^ "GSG 9 – To protect the Fatherland". Spec Ops Magazine. Spec Ops Magazine. 22 September 2013. Retrieved 15 November 2021.
  34. ^ "32 U.S. Code Title 32— NATIONAL GUARD". www.law.cornell.edu. Cornell Law School. Archived from the original on 20 October 2021. Retrieved 15 November 2021.
  35. ^ "Department of Defense Directive 5525.5" (PDF). 15 January 1986. Retrieved 15 November 2021.
  36. ^ "Department of Defense Instruction 3025.21" (PDF). Washington Headquarters Services. Washington Headquarters Services. 27 February 2013. Retrieved 15 November 2021.
  37. ^ "The Police (Complaints and Misconduct) Regulations 2012". legislation.gov.uk. 2012. (2) In these Regulations—.....“police officer” means a member of a police force or special constable; “police staff member” means—(a) a member of the civilian staff of a police force, including the metropolitan police force, within the meaning of section 102(4) and (6) of the 2011 Act
  38. ^ "Civilian Law Enforcement". discoverpolicing.org.
  39. ^ "Civilian Oversight Basics". National Association for Civilian Oversight of Law Enforcement. 15 November 2021. Archived from the original on 11 March 2021. Retrieved 15 November 2021.
  40. ^ "Policing in the UK: Governance, Oversight and Complaints" (PDF). House of Lords Library Research Briefings. House of Lords. 14 January 2020. Retrieved 15 November 2021.

Further reading[edit]

  • Helen M. Kinsella. The Image Before the Weapon: A Critical History of the Distinction Between Combatant and Civilian (Cornell University Press; 2011) 264 pages; explores ambiguities and inconsistencies in the principle since its earliest formulation; discusses how the world wars and the Algerian war of independence shaped the issue.

External links[edit]


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