GC IV of 1949: The civilian disaggregated

Before the civilian was defined in IHL, and before the principle of distinction was codified in AP I, GC IV of 1949 splintered the civilian category. It did this by allocating some civilians who were deemed especially vulnerable additional entitlements to protection and assistance that other civilians could not claim. This study proposes that this splintering rendered civilianness relative. That is, civilians who were singled out for special treatment acquired ‘civilian plus’ status, while those who were left behind were relegated to ‘mere civilian’ (and perhaps ‘civilian minus’) status. Recognizing that the civilian category was already fragmented before AP I is absolutely crucial for making sense of the everyday distinction practices that humanitarian actors engage in.

As mentioned above, GC IV does not define the civilian entity that is supposed to be the object of legal protection. The overarching impression given by proponents of the dominant vision of distinction, however, is that GC IV contains a unified civilian category made up of those lacking combatant status. In fact, this legal instrument does something that significantly undermines the notion of a unified

162 _{Judith Gardam, ‘Women and the Law of Armed Conflict: Why the Silence?’, International and}

Comparative Law Quarterly, Vol. 46, 1997 (‘Women’); Orly Maya Stern, Gender, Conflict and International Humanitarian Law: A Critique of the ‘Principle of Distinction’ (Routledge, 2018); Garbett, supra, pp. 92–93.

163 _{Drumbl, supra; Rene Provost, ‘Targeting Child Soldiers’, European Journal of International Law Blog EJIL:}

Talk!, 12 January 2016, available at: http://www.ejiltalk.org/targeting-child-soldiers/. Alex Sinha, ‘Child Soldiers as Super-Privileged Combatants’, International Journal of Human Rights, Vol. 17, No. 4, 2013, pp. 584–603.

civilian category: it disaggregates the civilian population for the purposes of receiving protection and accessing humanitarian assistance. 164 _{In some instances it}

does so on the basis of social characteristics such as age and gender. In the context of occupation, for example, Article 50 states that the Occupying Power shall not impede any preferential measures in regard to food, medical care and protection for children younger than 15 years, expectant mothers and mothers of children under 7 years.165 _{There are further provisions in GC IV that single out certain civilians for}

special treatment. Some of these relate to setting up hospitals and safety zones to protect designated groups,166 _{granting the passage of essential supplies to pregnant}

women and children167 _{and providing members of listed groups with special access}

to evacuation.168 _{Article 16(2) further stipulates that the wounded and sick, the}

infirm and expectant mothers ‘shall be the object of particular protection and respect’.169 _{This last provision addresses not only those who would otherwise be}

categorized as civilians, but also fighters who have become vulnerable by virtue of being hors de combat. It is important to recall, here, that IHL’s protections were first designed for wounded soldiers on the battlefield, and that the concept of ‘wounded and sick’ was subsequently expanded to all those who are particularly vulnerable and in need of care.170

From a relational perspective,171 _{the question that arises here is how IHL situates}

individuals who are accorded special treatment in relation to other members of the general civilian population. The ICRC Commentary to GC IV stipulates that granting something extra to certain segments of the civilian population is not

164 _{Thanks to Dino Kritsiotis for this point, in response to the author’s presentation on the ‘Emotional}

Warfare’panel at the conference ‘The Historicization of International Law’, 2016, Uppsala, Sweden.

165 _{Article 50 of GC IV.}

166 _{Article 14 of GC IV (providing for hospitals and safety zones that aim at protecting certain groups}

from the effects of war).

167 _{Article 23 of GC IV (granting passage to essential supplies for pregnant women and children).} 168 _{Article 17 of GC IV (granting special access to evacuation for members of listed groups).} 169 _{Article 16(2) of GC IV.}

170 _{Discussed in Sandoz, supra, p. 101 (‘Land Warfare’), citing the definition of ‘wounded and sick’ in}

Article 8(a) of AP I.

supposed to take anything away from others.172 _{According special respect or}

protection to some individuals, it states, does not free belligerents from their obligation to respect and protect the wider civilian population. 173 _{The Commentary}

further asserts that special protections are ‘not instead of, but in addition to the protection given generally’.174 _{This study challenges such claims. It counters that,}

even if what is given is ‘in addition to’ general civilian protection, something is taken away from civilians who are not accorded special treatment. That is, allocating extra entitlements to some segments of the civilian category functions to render civilianness relative.175

Weil contemplates the drawbacks of establishing different degrees of normative intensity in international law.176 _{He suggests that dropping the norm/non-norm}

distinction could interfere with the quality of a given international norm.177 _{Even if}

there are morally sound reasons to accord a higher position to certain norms, the prospect of unlimited gradation pushes international law in the direction of relativity and randomness.178 _{Applying these insights to the present investigation, the risk of}

singling out some civilians for special protection is that it fundamentally alters the concept of (general) civilian protection. It is proposed that those who are accorded special treatment acquire a ‘civilian plus’ status, while civilians who are not singled out take on ‘mere civilian’ status.179 _{There are also hints that a ‘civilian minus’ status}

is in circulation. This figure’s existence becomes more explicit in the discussion of DPH and other doctrinal engagements (see below).

172 _{1958 Commentary to GC IV re: Art 16(2) of GC IV.} 173 _Ibid.

174 _Ibid.

175 _{This is not to say that humanitarian assistance that accords preferential treatment to especially}

vulnerable populations cannot be impartial. See Dapo Akande and Emanuela-Chiara Gillard, Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict (UN Office for the Coordination of Humanitarian Affairs, 2016), p. 9 (‘Oxford Guidance’). See also Chapter 3.

176 _{Prosper Weil, ‘Towards Relative Normativity in International Law?’ American Journal of International}

Law, Vol. 77, 1983, pp. 413–442. Weil speaks generally about international legal norms such as the designation of certain offences as international crimes.

177 _{Weil, supra.}

178 _{Ibid., pp. 421, 430, 440–441.}

179 _{Engeland argues that these IHL rules establish a ‘sub-category’ of civilians and introduce individuals}

who potentially ‘fall in between the categories’ of civilians and combatants. See Anicee van Engeland,

Combined with the other disruptions of the dominant vision that are discussed here, this fracturing of the civilian category illuminates why contests might occur along civilian–civilian lines. If civilianness is a matter of degree, then individuals seeking protected status will naturally wish to claim the most robust iteration with the highest level of entitlements. As Parts II and III of this study highlight, international (non-humanitarian) civilian actors express serious anxiety regarding the prospect of a spectrum – or hierarchy – of civilian actors.

A few further remarks are merited here on how AP I delineates the populations that are entitled to receive assistance and protection in armed conflict. The relevant AP I rules deviate somewhat from the GC IV approach that has just been outlined.180

Significantly, AP I expressly states that humanitarian assistance is for the entire civilian population, rather than only specified vulnerable groups.181 _{Nonetheless, AP}

I stipulates that certain members of the civilian population, including children, expectant mothers and nursing mothers, have priority access to assistance and protection.182 _{Both women and children are again referred to in these AP I}

provisions as ‘the object of special respect’.183 _{So, while AP I provides that}

humanitarian assistance should be given to the entire civilian population, it still engages in disaggregation of the sort envisioned in GC IV.