Despite the heightened protection accorded civilians in the Geneva Conventions and their protocols, such protections have historically applied only in the context of interstate war. War-crime trials in the wake of World War II all required a preliminary finding of an international armed conflict before invoking laws protecting civilians. Given that the physical separation of the civilian population from the enemy army was seen as protection itself, the Geneva Conventions applied largely to prisoners of war and civilians who were in territory occupied by another state. Common Article 3 of each Geneva Convention and Additional Protocol II expanded the scope of protection for civilians, applying it to civilians in armed conflict, whether or not they were in the hands of the enemy or in occupied territory. Nevertheless, the existence of an armed conflict, preferably of an international character, remained an absolute prerequisite for legal protection.

The jurisprudence of the ad hoc international tribunals of the 1990s has greatly expanded civilian protection law, relaxing the requirement that there be armed conflict and applying these rules in non-international as well as international armed conflicts. As the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) held in 1996, “The rule that the civilian population as such as well as individual citizens, shall not be the object of attack is a fundamental rule of international law applicable to all armed conflicts… irrespective of their characterization as international or non-international.” In recent ICTY jurisprudence no distinction is made between international and non-international armed conflict; the same high level of protection is accorded civilians in both types of war. As the Senior Legal Advisor in the ICTY Office of the Prosecutor clarified: “attacks on [civilians and] civilian objects are prohibited as a matter of customary law in all conflicts.”

The developments in the law of war over the past century have greatly expanded both the protections accorded to civilians and the scope of applicability of these regulations. The issue today is the extent to which “armed conflict” as defined in the Geneva Conventions can also apply to terrorist attacks. Recent ICTY jurisprudence suggests it should. In the Tadic case, which involved crimes against humanity committed in 1992, the Appeals Chamber found that “armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” This definition covers all contemporary uses of force, including traditional interstate war, civil wars, insurgencies of all kinds, and both domestic and international terrorism.

By expanding well beyond traditional organized armed violence to a definition of “armed conflict” broad enough to include violence traditionally the province of police rather than soldiers, the law of war lays the foundation for an international legal principle protecting individuals from violence of almost any kind. The Geneva Conventions, however, have traditionally applied primarily to states, imposing duties on governments that they were then bound to transmit to their generals and officers. International criminal law, to which we now turn, has translated these obligations into a code of specific crimes, for which individuals can be held specifically accountable.

International Criminal Law

Developments in international criminal law have strengthened the rules of the law of war, expanding their scope and creating a viable set of enforcement mechanisms. Just as the law of war has moved from a focus on states to a focus on individuals, so too has international criminal law. International law has long dictated that when one state wrongs another, the state that committed the wrong must pay reparations. International criminal law has moved this liability to the personal level, holding individuals responsible for their own acts and those that they commanded or supervised.

This process of the individualization of international law is crucial for the operation of the principle of civilian inviolability. The process began at Nuremberg, when individuals, rather than states, were indicted for and convicted of crimes against civilians. It then drew on the corpus of human-rights law, which rendered state-society relations transparent, imposing direct obligations on governments to safeguard the basic rights of their citizens. The next step was to render governments themselves transparent, transforming the previously unified government into an aggregation of individual officials performing specific functions, each personally responsible for his or her actions.

The ICTY is the foremost example of this process of the individualization of international law. The ICTY has applied the rules of civilian protection and held individuals accountable. In its 2000 decision in the Kupreskic case, which tried Kupreskic for acts of ethnic cleansing against Yugoslavian Muslims, the Trial Chamber described “the protection of civilians” in time of armed conflict as “the bedrock of modern humanitarian law,” holding Kupreskic personally accountable for violations thereof. Nearly every judgment of the ICTY to date has found that the victims are part of a protected civilian population and held the perpetrators criminally responsible for crimes against humanity or war crimes. Most of the ICTY’s indictments seek to establish individual criminal responsibility for crimes against civilians. Even former heads of state are not immune. Slobodan Milosevic, for example, stands charged with “murder and willful killings of Croat and other non-Serb civilians.”

National courts have joined the international tribunals in prosecuting individuals for violations of civilian protection law under the principle of universal jurisdiction. Historically invoked in cases of piracy, national courts are now using universal jurisdiction to prosecute crimes against civilians when the crimes can be described as genocide or crimes against humanity. A famous example is the Spanish request for the extradition of Augusto Pinochet to stand trial for acts of torture committed when he was president of Chile. Likewise, Belgium has convicted individuals of war crimes against civilian populations in Rwanda, and Germany has prosecuted war crimes against civilians in Bosnia.

To make a general principle of civilian inviolability effective, international criminal law is undergoing a further transformation. Just as state-society relations and governments themselves have been rendered transparent, society is itself undergoing this same transformation. Individual actors in society, whether alone or part of a group or network, are now being held accountable for their acts toward fellow citizens and the citizens of other countries. Regardless of the perceived justice or injustice of their cause, they may not pursue their claims through attacks on civilians or they will be held personally accountable. Their acts are now subject to regulation under both domestic and international law. Courts everywhere are now ready and willing to enforce these rules.