Protected persons is a legal term under international humanitarian law and refers to persons who are under specific protection of the 1949 Geneva Conventions, their 1977 Additional Protocols, and customary international humanitarian law during an armed conflict.
The legal definition of different categories of protected persons in armed conflicts is found in each of the 1949 Geneva Conventions and in the 1977 Additional Protocols.First Geneva Convention, Article 13Second Geneva Convention, Article 13Third Geneva Convention, Article 4Fourth Geneva Convention, Article 4 The extent of protection and obligations of belligerent states and parties depends on the type of the armed conflict (international or not international) as well as on the category of protected persons in terms of their age (adult/child), sex (man/woman), participation in the armed conflict (combatant/prisoner of war/civil person) and personal situation (e.g. shipwrecked, sick, wounded, etc.).
Minimum rights and fundamental guarantees are granted by the 1977 Additional Protocols I and II to the persons not covered by the 1949 Geneva Conventions, independently of the character of the conflict (international or national).Additional Protocol I, Article 75. Moreover, the Additional Protocol II extended the protection of existing protected persons in non-international armed conflicts (persons deprived of liberty, wounded and sick, medical and religious personnel, and civilian population).
History In 1862 Henri Dunant published a book, A Memory of Solferino, describing his experience of the horrors of war during the Battle of Solferino. It increased the desire to improve the conditions of the wounded in armies in the field. Following the diplomatic conference inspired by his ideas and attended by the governments of Europe and several American states, the 1st Geneva Convention was held in 1864 by twelve European countries.
The article 6 of this Convention already stipulated: "Wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for."
This Convention have been replaced by the Geneva Conventions of 1906, 1929 and 1949, based on new elements occurred during the subsequent wars.
Applicable texts In the area of international humanitarian law (IHL), the four 1949 Geneva Conventions, the 1977 Additional Protocols to them, and customary international humanitarian law are the source of the rights and protections for various categories of persons in the context of international armed conflicts, and also non-international armed conflicts. These texts are focused on protection of victims of armed conflicts and they are based on one general principle: obligation of human treatment of protected persons, without discrimination on the grounds of race, sex, nationality, language, or religion.
The Hague Conventions of 1899 and 1907 are also in force, fully applicable and constitute a part of customary international law. Even before the Geneva Conventions, they already contained a number of important provisions regarding the protection of prisoners of war (forbidden actions) and civil persons (e.g. during the occupation).Hague Convention 1907, Articles 22-28, 42-56.
In addition, international human rights law also applies to armed conflicts and protects all individuals within the jurisdiction of the state.
Protected persons associated with the armed forces Definition of military victim is given by the Article 13 of the First Geneva Convention of 1949 and by the Article 4 of the Second Geneva Convention of 1949 for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea.Second Geneva Convention II, Article 13 There are several sub-categories of military victims:
wounded and sick in armed forces in the field; wounded, sick and shipwrecked members of armed forces at sea; the status of shipwrecked has a determined duration and can change due to the events in the sea to combatant, interned, prisoner of war (for militaries); to protected person under the Article 4 of the Fourth Geneva Convention (for civilians); medical and religious personnel attached to armed forces war correspondents.First Geneva Convention, Article 13 (4).Third Geneva Convention, Article 4.
Legal effects There are two types of obligations incumbent to the signatory nations under Article 12 of the 1st Geneva Convention:
respect, protect and rescue wounded and sick militaries;First Geneva Convention 1949, Article 12 provide treatment and care without any discrimination between them.
In addition to that, the Additional Protocol I to the Geneva Conventions establishes a unitary protection for all sick, wounded and shipwrecked independently of their military or civil status. In return, sick and wounded persons shall refrain from any hostile behaviour to benefit from this protection.
In case of necessity, belligerent powers can appeal to the charity of the civilian population. That being said, the civilian population shall only "respect these wounded and sick, and in particular abstain from offering them violence", but at the same time can not be prosecuted and convicted "for having nursed wounded or sick".First Geneva Convention, Article 18
Prisoners of war Legal definition of prisoners of war is given in the Article 4 of the Third Geneva Convention and apply to the following persons, who "have fallen into the power of the enemy":
the regular combatants of the adversary (members of the armed forces, levée en masse, militias, members of volunteer corps, resistance movements); certain civilians, like civilian members of military aircraft crews; war correspondents; suppliers; members of labour units or services in charge of the welfare of the armed forces; medical personnel and chaplains who assist the prisoners of war, shall not be considered as prisoners of war. However, they have right to the protection no less favourable than the protection accorded to the prisoners of war.
Several type of persons has right to the treatment equal to the prisoners of war, without holding this status (parliamentarians, children-combatants).Third Geneva Convention, Article 5. In case of doubt, the concerned person has a right to the presumption of status of prisoner of war, until the exact status is established by the competent court.
Persons with special status Four categories of persons need an additional attention:
a deserter in the hands of the adversary party shall at least be considered as a prisoner of war, but can also obtain another not less favourable status; a betrayer in the hands of his Origin State does not have a right to the status of the prisoner of war according to the international dominant practice; a spy could be considered as a prisoner of war (combatant in uniform or resident of occupied territory) or not (civil persons or combatant without uniform);Additional Protocol I, Article 46. a mercenary has no right to the status of prisoner of war or combatant, under condition to respect a number of cumulative criteria.Additional Protocol I, Article 47.
Legal effects The Third Geneva Convention describes in a detailed manner the protection granted to prisoners of war and obligations incumbent upon the belligerents:
Humane treatment – prisoners of war shall be protected against acts of violence, intimidation, insults and public curiosity. They should be housed and receive a sufficient nourishment. Mutilations, medical and scientific experiments, removal of organs for transportation are forbidden.Third Geneva Convention, Article 12 They have rights to quarters, food, clothing, hygiene, medical attention,Third Geneva Convention, Article 25–31 property,Third Geneva Convention, Articles 58–68 representation,Third Geneva Convention, Articles 79–81 and their badges of rank and nationality.Third Geneva Convention, Article 40 Equal treatment – prisoners of war shall be treated without any discrimination on the basis of race, nationality, religion, opinions and similar criteria.Third Geneva Convention, Article 16 Security – the prisoners of war shall be evacuated from combat and danger zone.Third Geneva Convention, Articles 19 & 20 When military considerations permit, their quarters shall be indicated by the letters PW or PG, or another system of marking, clearly visible from the air.Third Geneva Convention, Article 23 Labour – prisoners of war could be utilized by the Detaining power for work respecting their age, sex, rank, physical aptitude.Third Geneva Convention, Articles 49–57 Proceedings – the Detaining power can prosecute the prisoner of war according to its own laws, regulations and orders in force. During the criminal trial, the prisoner could refuse to cooperate with the Court. Judicial proceedings against the prisoners of war shall be carried in accordance with the fair trial canons. Disciplinary measures shall be adopted rather than judicial wherever it is possible. Even after the conviction, the prisoner keeps his status of the prisoner of war. The death penalty is acceptable by the customary law and the Conventions.Third Geneva Convention, Articles 82–108 Repatriation – seriously wounded or sick prisoners of war shall be sent back to their country regardless of number or rank. The rest of prisoners of war shall be released and repatriated after the cessation of active hostilities.Third Geneva Convention, Articles 109–119
Civilian persons The term of protected civilian persons is described in the Article 4 of the Fourth Geneva Convention. It does not protect all civilian persons in general, but only those who are "in the hands of" the adverse party during an international armed conflict. In case of doubts, the person is presumed to be a civilian. In other words, civilians under their own national authority and nationals of the countries not party to the Fourth Geneva Convention are not protected by these texts (the latter's limitation is no longer of practical reference, given that the ratification is now universal and the role of the customary international humanitarian law). Neutral persons who are in the belligerent territory and nationals of an ally of a belligerent (co-belligerent) are not protected as long as "their State of nationality maintains normal diplomatic representation with the State in which they find themselves".
Another definition is given by the Article 50 of the Additional Protocol I, but in a negative way – everybody who does not belong to the armed forces or prisoners of war belongs to the civilian population.Additional Protocol I, 1977, Article 50 Thus, persons that were not covered by the Geneva Conventions have minimum protection. In fact, the protection of civilians was extended to the cases of war of national liberation.Additional Protocol I, Article 1.
The legal effect of the status depends on the category of civilian persons and their location (on the territory of adversary Party or on the occupied territory).Fourth Geneva Convention 1949
The civilians can lose the protection against the attacks if they participate in hostilities against the enemy.Additional Protocol II, Article 13.Fourth Geenva Convention, Article 5.
General protection of civilian persons According to the Fourth Geneva Convention, the rights of protected civilian persons are absolute and inalienable. As a consequence,
parties of armed conflicts cannot conclude special agreements that will "adversely affect the situation of protected persons";Fourth Geneva Convention, Article 7 protected persons cannot renounce to their rights;Fourth Geneva Convention, Article 8 protected persons of occupied or annexed territories cannot be deprived of the rights established in the Geneva Conventions.Fourth Geneva Convention, Article 47
Additional Protocol I prohibits indiscriminate attacks or reprisals against civilian persons, their objects, and objects necessary for their survival.