They belong to the category of victims of war. Protecting victims of war. Foreign citizens in the Republic of Kazakhstan

Speaking about the protection of victims of war, they mean the provision by the parties to the conflict of international legal protection for such categories of persons: the wounded, sick, persons from the armed forces at sea, shipwrecked, prisoners of war, the civilian population, that is, granting them such a status would guarantee humane treatment of them and excluded violence, mockery, mockery of persons.

The main international legal acts that define legal status of these persons are the four Geneva Conventions of 1949 and Additional Protocols I and II of 1977. The wounded and sick include both military personnel and civilians who, due to injury, illness, other physical or mental disorder, disability, need medical care or concern and who refrain from any hostile action. These are the passengers of the wrecked ship, "persons who are in danger at sea and other waters, pregnant women, women in childbirth, newborn children. The regime of the wounded and sick also applies to the personnel of the militias and volunteer detachments, partisans, persons who follow the armed forces, but are not part of them, war correspondents, service personnel, crew members of the merchant fleet, the population of the unoccupied territory, which is taken for weapons with the approach of the enemy.

States at war must treat the victims of war humanely in all circumstances and provide them with the maximum possible medical assistance and care. If such persons are in the hands of another party to the conflict, they are considered prisoners of war. In relation to these persons, the following actions are prohibited: encroachment on life and physical integrity; hostage taking; collective punishment; threats to commit the above actions, conduct medical or scientific experiments; deprivation of the right to a fair trial, the practice of apartheid and other inhumane acts based on racial discrimination. The military must allow the civilian population and charitable organizations to pick up and care for the wounded and sick on their own initiative, and no one should be prosecuted or condemned for such actions. The parties to the conflict, if possible, should register the prisoners, the wounded and the sick for further transfer to the state of which they are citizens.

International legal protection of the civilian population. Civilians are persons who do not belong to any category of participants in an armed conflict and do not directly participate in hostilities. Legal protection of the civilian population is carried out in conflicts of both international and non-international character. The parties to the conflict are obliged to take all measures so that children under 15 years of age, those who are orphaned or divorced from their families due to the war, are not abandoned by fate (Article 24 of the Geneva Convention for the Protection of Civilian Persons in Time of War). No measures of physical or moral pressure can be applied to the civilian population in order to obtain any information.

It is forbidden to inflict physical suffering or take any action that will lead to the death of a civilian

of the population (murder, torture, corporal punishment, mutilation, medical, scientific experiments, starvation among civilians as a method of warfare, terror, robbery, hostage-taking, other violence by civilian or military representatives of the parties to the conflict). The civilian population and individual civilians must not be the object of attack. It is prohibited to use the civilian population to protect certain objects, points or areas of attack.

military occupation regime. Military occupation is a temporary seizure of the territory (Part of the territory) of one state by the armed forces of another state and the establishment of a military administration in the occupied territory. The military occupation of any territory does not mean its transition under the sovereignty of the state that has captured it.

According to the provisions of the IV Hague Convention of 1907 p., IV of the Geneva Convention of 1949, Additional Protocol I, the occupying power is obliged to take all measures to ensure order in the occupied territory. The population of the occupied territory must obey the orders of the authorities, but it cannot be forced to take an oath of allegiance to the occupying power, to participate in hostilities directed against its state, to testify about the army of the latter. The honor, dignity, life of civilians, their property, religious beliefs, families. The occupying state must provide the civilian population with the necessary clothing, food and sanitary materials.

In relation to the civilian population it is prohibited: to commit any acts of violence; use coercion of a physical or moral nature, in particular to obtain information; use torture, corporal punishment, medical experiments, collective punishment, etc., take him hostage; deported from the occupied territory. Foreigners who find themselves in the occupied territory are guaranteed the right to leave it as soon as possible.

The regime of military captivity. The regime of military captivity is regulated by the III Geneva Conventions of 1949. According to the Convention, persons who have fallen under the power of the enemy are considered prisoners of war: personnel of the armed forces, militia and volunteer detachments that are part of the armed forces; personnel of partisan detachments; personnel of the armed forces who are subordinate to the government, that is recognized by the state, which is held captive, war correspondents, suppliers, other persons who follow the armed forces, members of the crew of the merchant marine and civil aviation, the population of the unoccupied territory took up arms if they are open bears arms and obeys the laws and customs of war.

The detaining state is responsible for the treatment of prisoners of war. Each prisoner of war, during his interrogation, is obliged to report only his last name, first name, rank, date of birth and personal number. Prisoners of war may not be subjected to physical mutilation, scientific or medical experiments. They may be subject to reprisals. Prisoners of war must be protected from violence and intimidation, they must be ensured respect for the person and dignity. The state that captured may subject prisoners of war to internment. they may also be prohibited from going outside the camp's designated limit. Prisoners of war are provided with accommodation, food, clothing and medical care. They must be provided with access to medical and religious personnel. In captivity, the wearing of awards is preserved. Prisoners of war are provided with the opportunity to work, forced labor is prohibited. It is forbidden to use prisoners of war in dangerous work (for example, to clear mines) or in such that degrade one's dignity. In the process of work, safety requirements must be met. Prisoners of war must have contact with outside world. they are also provided with the right to complain to the authorities of the state that keeps them in captivity.

Prisoners of war are obliged to comply with the laws of the state, they are kept in captivity and which has the right to apply judicial and disciplinary sanctions for misconduct. However, a penalty can only be imposed once per misdemeanor. Collective punishment is prohibited. A prisoner of war may only be subjected to disciplinary action for escaping.

After the end of hostilities, prisoners of war are released and repatriated.

war casualties- persons who do not take part in hostilities or ceased such participation from a certain moment: the wounded; sick in the army; shipwrecked persons; members of the armed forces, prisoners of war; civilian population, including in the occupied territory.

The main acts in the field of protection of war victims are the four Geneva Conventions (1949), drafts of which were prepared with the participation of the International Committee of the Red Cross, as well as two additional protocols to them (1977).

Protection of the wounded and sick. The rules for the protection of the wounded and sick in war on land are contained in the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949) and in the First Additional Protocol (1977). The latter extended the general regime to all the wounded and sick, military or civilian, who are in need of immediate medical attention. Such persons must be respected and protected.

The belligerents are obliged to take immediate measures to search for and collect the wounded and sick. The wounded soldiers of the enemy should be treated with respect and provided with the necessary medical care. Medical experiments on them are prohibited. The dead are picked up and buried with dignity.

medical staff. Combatants must treat him with respect and provide protection. Medical personnel can be detained by the enemy. In such a case, he must continue to exercise his functions, preferably in relation to his own citizens. Permanent medical facilities and mobile medical units are subject to protection. They must be distinctive. Protection stops only if they are used to harm the enemy. When the enemy captures the wounded and sick, they enjoy the rights of prisoners of war.

Protection of the wounded, sick and shipwrecked. The regime of such persons is determined by the II Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (1949) and the First Additional Protocol (1977). In general, the same rules apply as in the case of war on land, but there are specifics. Search and rescue are of particular importance. They must be undertaken immediately after the engagement by the warships themselves. In carrying out such operations, the ships do not gain protection.

Hospital ships are painted white and carry the red cross flag along with the national flag. The name and description of the ship is communicated to the enemy. After that, it cannot be attacked or captured.

Prisoners of war. The basic rules on the regime of military captivity are contained in the third Geneva Convention (1949), as well as in the first Additional Protocol of 1977 (Articles 43-47).

The status of prisoners of war is granted to legal participants in military battles, referred to as combatants. These include persons from the regular armed forces, members of military or volunteer detachments that are part of such forces, as well as police forces, resistance movements, civilian auxiliary forces attached to the troops, including prosecutors, judges, journalists, priests.

The conditions for the legality of the participation of all these persons in hostilities are: submission to the command responsible for their actions, submission to an internal disciplinary system, which, among other things, ensures compliance with humanitarian law.

Mercenaries do not have the status of a combatant and cannot count on the regime of prisoners of war. A mercenary is a person recruited for use in an armed conflict, who actually takes part in hostilities in order to receive material rewards. In 1989, the UN General Assembly adopted the Convention on the Prohibition of the Recruitment, Use, Financing and Training of Mercenaries. The convention recognized mercenarism as a serious crime affecting the interests of all states, and obliged the participants to either bring the perpetrators to justice or extradite. Mercenary is dedicated to Art. 359 of the Criminal Code of the Russian Federation.

From the moment of captivity, the responsibility for prisoners of war lies with the state that captured them, and not individual commanders, which, of course, does not exclude the criminal responsibility of the latter for crimes against prisoners of war. A prisoner of war is not a criminal, but a soldier doing his duty. Its isolation is due solely to military necessity. Prisoners of war must be treated humanely. Any illegal act or omission that results in death or serious injury to the health of a prisoner is a crime.

Medical experiments on prisoners are prohibited. Protection must be provided. Reprisals are prohibited. Prisoners are provided with the necessary clothing, food, medical care. Ordinary prisoners can be involved in work, taking into account their physical condition. Officers participate only in the management of such work. The work performed is paid accordingly. Military work is excluded.

The possibility of appointing a protecting power from among neutral states is envisaged to monitor respect for the rights of prisoners. Relevant functions may be carried out by the International Committee of the Red Cross.

Prisoners are subject to the laws and regulations in force in the army of the state that captured them. They are responsible for the crimes committed under these laws. After the cessation of hostilities, prisoners are subject to prompt repatriation. Even before that, the wounded and sick should be repatriated. Prisoners suspected of crimes, including military prisoners, may be detained pending trial.

Internment. Foreign nationals may be interned by belligerents only if security interests make it absolutely necessary. An internee has the right to appeal against a decision on his internment to a court and (or) to an administrative body specially designated for this purpose. The conditions of detention for internees are similar to those for prisoners, but in a number of respects more favorable. In particular, families should not be separated.

Security zones. The creation of security zones and hospital zones by agreement of the warring parties is encouraged in order to ensure the safety of the civilian population. A model agreement of this kind is attached to the first Geneva Convention. These zones should not have military installations. They are not subject to attack.

In order to save people's lives or save cultural property, it is possible to declare an "unprotected area" (usually a city or a nature reserve located close to the front line). They can become an object of occupation by the enemy without a fight. By agreement of the belligerents, demilitarized zones may also be established.

The world community has come to the need to limit the methods and means of warfare through the development of treaties that define the rights and obligations of the belligerents. To reduce the suffering caused by armed violence, to protect the individual - this is the goal of international humanitarian law (IHL).

International law, Montesquieu noted, is naturally based on the principle that states should do as much good as possible in times of peace, and as little evil as possible in times of war. This has been the driving force behind the development of IHL since its inception.

There are various names for this branch of international law: "the law of armed conflicts", "laws and customs of war", "international humanitarian law". Some authors divide the law applicable in times of war into two parts: "the law of the Hague" as a system of rules aimed at limiting the methods and means of warfare, and "the law of Geneva", which includes provisions for the protection of victims of armed conflicts. However, to put it simply, we are talking on the rules of warfare contained in a number of international legal acts.

Thoughts that "for war, as well as for peacetime, there are laws" are found in the writings of G. Grotius.

In ancient times, the rules of warfare existed in the form of customs and were sometimes enshrined in internal law.

For example, the Laws of Manu established strict restrictions on violence, and during the period of hostilities it was forbidden to use poisoned weapons, kill the unarmed, prisoners, begging for mercy, sleeping and wounded.

In the relations between the states of ancient Greece, there was a common rule, according to which the war should not have started without its declaration; death on the battlefield gave the right to burial; during the capture of cities, it was impossible to kill those hiding in temples; prisoners of war were subject to exchange or ransom, and only in extreme cases were enslaved.

Over the millennia there have been profound changes in the nature of warfare. Armed conflicts have taken on a different character, as well as their scale, with the advent of firearms. Attitudes changed towards prisoners of war, who were increasingly released for ransom, as well as towards the wounded, who were carried out of the battlefield and who were treated.

The humanization of armed conflicts accelerated significantly in the 19th century. with the advent of public organizations that have launched their activities in many countries. In Russia, during the Crimean War (1853-1856), the Exaltation of the Cross Community of Sisters of Mercy was created to provide assistance to the wounded and sick on the battlefield. It was led by the Russian surgeon N.I. Pirogov.

During the Austro-Italian-French War (1859), the Swiss citizen Henri Dunant organized help for the wounded after the Battle of Solferino. His book "Memories of Solferino" awakened the public consciousness. In 1863 a permanent

The International Committee for Relief of the Wounded, today the International Committee of the Red Cross (ICRC), which included, in addition to A. Dunant, four Genevans - Moynier, General Dufour, doctors Appiat and Monoir.

The ICRC is a non-governmental (private) Swiss organization. He became the founder of the Red Cross movement, and one of the tasks of his activity is to promote in every possible way the observance of the Geneva Conventions aimed at protecting the victims of war. During armed conflicts, international and intrastate (civil wars), it provides protection and assistance to victims both among the military and among the civilian population, whether they are prisoners of war, civilian internees, wounded, civilians in occupied or enemy territory.

The ICRC's mandate to act in times of armed conflict is based on the four Geneva Conventions of 1949 and their Additional Protocols, as well as on its own Statute (the right of initiative in non-international conflicts). The ICRC is working to improve the above-mentioned international treaties, promoting them in every possible way and facilitating their precise implementation, as well as disseminating knowledge about them throughout the world.

The principle of protecting civilian objects means that the belligerents concentrate their efforts on preserving civilian objects, including cultural property, inadmissibility of attacks on them in order to ensure the safety and normal living conditions of the civilian population.

The principle of protecting the natural environment during armed conflicts includes a system of measures aimed at preventing, limiting and eliminating damage to the natural environment during the period of hostilities, the inadmissibility of military or any other hostile impact on the natural environment that can cause extensive, long-term and serious damage to it.

The principle of protecting the interests of neutral states means the observance by belligerent states of the norms aimed at ensuring, during an international armed conflict, the rights and legitimate interests (legal status) of states whose foreign policy is aimed at non-participation in war, as well as the refusal of neutral states to provide assistance to belligerents.

The principle of limiting the belligerents in the choice of methods and means of waging war means that the belligerents use only such methods and means of inflicting harm on the enemy that do not contradict international law.

The principle of State responsibility and individuals for violation of the norms of international humanitarian law means the inevitability of responsibility of states and individuals for causing harm during armed conflicts and committing serious violations of Conventions I-IV and Additional Protocols I, II of 1977, as well as for committing acts falling under the jurisdiction of the International Criminal Court.

The principles of IHL provide the law applicable during armed conflicts with a certain unity and consistency of its norms. These principles determine the purpose, directions of regulatory regulation, its content and nature. Without taking into account the principles, the meaning and purpose of specific rules of warfare cannot be fully understood. The sectoral principles of IHL are not enshrined in any single or several international legal acts, such as, for example, the basic principles of international law. They follow from the analysis of all treaty sources applied in the period of international and internal armed conflicts.

In view of the foregoing, we will give the following definition of IHL: it is a system of international legal principles and norms governing relations between states (parties) during armed conflicts with the aim of limiting the use of brutal methods and means of warfare by belligerents, protecting its victims and establishing responsibility for their violation.

In international humanitarian law (judging by the content of Articles 2 and 3 common to the Geneva Conventions of 1949, as well as Article 1 of Additional Protocols I and II to these Conventions), armed conflicts are divided into two types: a) international armed conflicts and b ) armed conflicts of a non-international character.

International armed conflicts include:

• armed clash between states (Israeli-Arab armed conflict, ongoing from 1967 to the present, the Anglo-Argentine war of 1982, the attack by the United States, Britain and other states on Iraq in March 2003);
• the struggle of peoples against colonial domination and foreign occupation and against racist regimes in the exercise of their right to self-determination in accordance with the UN Charter (Article 1, paragraph 4 of Protocol I).

Based on the practice of international relations, intervention in an internal armed conflict of a third state in the interests of one of the belligerents, the participation of the UN armed forces, as well as UN peacekeeping forces in an internal armed conflict (if in this case there is a decision of the Security Council United Nations on the use of armed force).

Non-international armed conflicts include armed conflicts taking place in the territory of a State between its armed forces and anti-government armed forces or other armed groups which, under responsible command, exercise such control over a part of the territory of that State as to enable them to maintain continuous and concerted hostilities and apply Protocol II. For example, the armed conflict between the regular troops of El Salvador and the Farabundo Marti National Liberation Front (FMLN), which ended with the signing in 1992 of a peace agreement between the warring parties; armed conflicts in post-Soviet space: Transnistrian - in Moldova, Georgian-Ossetian and Georgian-Abkhazian armed conflicts, etc. Civil wars also belong to this kind of armed conflicts ( Civil War between North and South in the USA (1861-1865), the Civil War in Russia (1918-1920), Spain (1936)).

In armed conflicts of a non-international character, the following international legal acts apply: Art. 3, common to all four Geneva Conventions of 1949, art. 19 of the Hague Convention for the Protection of Cultural Property of 1954 and its Second Protocol of 1999,

Additional Protocol II 1977, Protocol II as amended 1996 to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious and to Have Indiscriminate Effects, 1980, Rome Statute of the International Criminal Court 1998

Situations of tension and unrest within the country are excluded from the scope of application of Additional Protocol II: riots, separate and sporadic acts of violence and other acts of a similar nature (paragraph 2 of article 1).

Detailed regulation of the behavior of the belligerents from today's position, when aggression is an international crime, may at first glance seem unjustified. But at the time of the birth of IHL, war was seen as one of the legitimate means of settling disputes between states. The ideas of humanism prevailed and did their job: without interfering in the politics of states waging wars, without delving into the causes of conflicts, they were embodied in norms aimed at mitigating the consequences of a brutal struggle, alleviating the suffering of war victims - the wounded, sick, prisoners of war, civilian population. And at present, armed conflicts continue to be one of the ills of mankind.

Legal regulation of the outbreak of hostilities

From the point of view of international humanitarian law, legitimate participants in armed conflicts are divided into combatants (fighting) and non-combatants (non-combatants). This division of the armed forces is also confirmed by the aforementioned Additional Protocol I, which reflects the main feature that makes it possible to distinguish between combatants and non-combatants, namely the right to take a direct part in hostilities.

Combatants (fighting) are persons who are part of the armed forces of the belligerent and have the right to take a direct part in hostilities.

It is clear that the organizational structure, strength, and the procedure for manning the armed forces are determined by the legislation of the states. Each belligerent state has the right to include in its armed forces a paramilitary or armed organization that ensures the protection of order (militia, police), informing the enemy about it (clause 3, article 43 of Protocol I).

The structure of the armed forces also includes persons who, due to their purpose and role in the military organization, are not endowed with the functions of taking a direct part in hostilities: military quartermasters, war correspondents, military lawyers.

In principle, they have the right to take up arms; fight, because by definition they are combatants.

As for military lawyers, here it is necessary to make some clarifications. In this case, we are not talking about all military lawyers, but only about those who are part of the structure of the armed forces of the state. At the same time, military lawyers who are not part of the Russian Armed Forces serve in the regular structure of military courts and military prosecutors as part of the judicial system and prosecution bodies of the Russian Federation, respectively. Prior to the adoption of Additional Protocol I in relation to this category of military lawyers, there was no problem with determining their legal status as lawful participants in an armed conflict due to the practiced principle of involvement in hostilities: fighting - combatant, not fighting - non-combatant. Now, if one strictly proceeds from the definition of the armed forces, then military lawyers of military courts and military prosecutor's offices cannot formally be considered as combatants. From a legal point of view, this part of military lawyers does not fall under the category of non-combatants, although according to their purpose (prevention of offenses and the fight against crime, including criminal prosecution persons for committing international crimes), they, fighting the vices of army society, gravitate more towards non-combatants. As you can see, their legal status today is not regulated by the norms of international humanitarian law. In any case, military judges or prosecutors and investigators may use weapons in self-defence. At the same time, if, for example, a military investigator, while in the army during an armed conflict, for various reasons (a patriotic sense of duty to the Motherland, a certain military situation that has created, or both) takes up arms to fight the enemy, then he actually becomes a participant in hostilities, i.e. combatant.

Speaking about other categories of persons designated as “persons following the armed forces, but not directly included in their composition” (clause 4, article 13-13-4, respectively, of the Geneva Conventions I, II, III), for example, civilians included into the crews of military aircraft, it is hard to imagine that such a category of legitimate participants in armed conflicts could now exist in the armed forces of civilized states. Purely theoretically, in accordance with Additional Protocol I, they can be classified as civilians. With regard to suppliers, personnel of work teams or services entrusted with the welfare of the armed forces, i.e. military quartermasters1, they are now part of the modern armed forces of states and are combatants, as discussed above.

With the adoption of Additional Protocol I, members of the crews of commercial and civil fleet aircraft (see paragraph 5 of Article 4 of Convention III) cannot be considered combatants, since they do not meet the requirements for the armed forces and are not part of them (Section 1, 2 Article 43). In order for the crews of these vessels to be classified as combatants, it seems that such vessels should be converted into military vessels, and the crews themselves placed under the direct authority, direct control and responsibility of the power whose flag they fly, as required by the Convention on Treatment merchant ships to military ships 1907

Based on the definition of armed forces formulated in Additional Protocol I, analysis of other existing international legal instruments, it can be concluded that combatants are:

• personnel of the armed forces of the state, as well as personnel of militias and volunteer detachments, partisans, other paramilitary or armed organizations included in their organizational structure;
• personnel of the militia, volunteer detachments, organized resistance movements, partisans (not included in the regular structure of the armed forces of the belligerent state), fighting in the occupied territory and beyond, subject to the conditions of paragraph 1 of Art. 43 of Additional Protocol I;
• members of the crews of ships of the merchant fleet, including captains, pilots and cabin boys, and crews of civil aviation aircraft, if these ships are converted into military ones, and their crews are placed under the authority of the belligerent;
• members of regular armed forces who consider themselves to be under the control of a government or authority not recognized by the Detaining Power;
• the population of the unoccupied territory, which, at the approach of the enemy, spontaneously, on its own initiative, takes up arms to fight the invading troops, without having had time to form into regular troops, if they openly bear arms and observe the laws and customs of war.

Non-combatants include medical and religious personnel (paragraph 2 of article 43 of Additional Protocol I).

The legal status of combatants and non-combatants is different. It is associated, as already noted, with the right to directly participate in hostilities.

The rights of combatants: in the course of an armed conflict, they have the right to apply the highest measure of violence to the enemy, i.e. destroy its personnel, military installations, installations and military equipment without the risk of being held criminally liable.

Combatants are subject to the regime of military captivity, on the indispensable condition that they distinguish themselves from the civilian population (Articles I, III of the Hague Regulations, Article 4 (A) III of the Geneva Convention, paragraph 1 of Article 44 of Protocol I). Moreover, in order to enhance the protection of the civilian population, Protocol I obliges combatants to distinguish themselves when conducting military attacks (attacks) or in preparation for such attacks. However, in those exceptional cases where, during the conduct of hostilities, a combatant cannot distinguish himself from the civilian population, he retains his status as a combatant, provided that in such situations he openly carries his weapons: a) during each military engagement; b) at the time when he is in full view of the enemy during the deployment into battle formations preceding the start of the attack in which he is to take part (clause 3, article 44 of Additional Protocol I). If a combatant, at the time of being captured by enemy forces, fails to fulfill the requirements of distinction set out above, he shall forfeit the right to be considered a prisoner of war, but he shall nonetheless be accorded protection equivalent to that which a prisoner of war is entitled to claim under Convention III and Protocol I (para. 4 article 44). From Art. 44 of Protocol I, it follows that in order to obtain the status of a prisoner of war, it is sufficient for a combatant of both regular and irregular armed forces to openly carry weapons in battle and during deployment (preparation) for battle. With regard to the wearing of uniforms, judging by the article formulated in Protocol I (Article 44, paragraph 7), it is not intended to change the generally accepted practice of States regarding the wearing of uniforms by combatants from the regular armed forces.

Obligations of combatants: to comply with the principles and norms of international humanitarian law (at the same time, violation of these norms by combatants does not deprive them of the status of a combatant); distinguish themselves from the civilian population; prevent attacks on the civilian population and civilian objects; apply lawful methods and means of warfare; bear responsibility (disciplinary, civil, material, criminal) for violation of the norms of international humanitarian law.

Non-combatants, unlike combatants, being part of the armed forces of belligerent states, do not have the right to participate directly in the conduct of hostilities and destroy the enemy.

Their activities are aimed at ensuring the physical and spiritual condition of the personnel of the armed forces. Even personal weapons they have the right to use only for self-defense. In the event that they nevertheless participate in hostilities, they can be held accountable for violating the norms of international humanitarian law.

In view of the fact that often in an armed conflict military operations are carried out on maritime spaces, it becomes necessary to highlight the issue of combatants in a naval war. Combatants in such a war are: crews of warships of all types (battleships, cruisers, destroyers, aircraft carriers, submarines, boats, etc.), crews of Navy aircraft (airplanes, helicopters), auxiliary vessels of all types, as well as merchant, converted into military ships. The latter are combatants under the following conditions:

• the ship's crew is placed under the direct authority, direct control and responsibility of the state whose flag the ship flies;
• the ship wears the external distinctive signs of national military courts (flag, pennant);
• the ship's commander is in the public service, duly appointed to the position, and the crew is subject to the rules of military discipline;
• the ship's crew observes the rules of war;
• the converted ship is included in the list of ships of the navy (Articles I-VI of the Convention on the Conversion of Merchant Ships to Military Vessels of 1907).

Non-combatants in maritime warfare are the crews of military hospital ships, if such ships are built or equipped by States for the express and sole purpose of assisting the wounded, sick and shipwrecked, as well as the crews of ICRC hospital ships. They enjoy the protection of international law and cannot be attacked or captured.

Combatants in an air war are the crews of all aircraft that are part of the military aviation of the belligerent states and have their identification mark. These include the crews of civil aviation ships converted into military ones within the jurisdiction of a belligerent state.

Non-combatants in an air war are the crews of air ambulances, as well as hospital aircraft used by belligerent states and national Red Cross societies for the evacuation and treatment of the wounded and sick. Medical and hospital ships must bear a clearly visible distinguishing sign and, where appropriate, also the distinctive emblem of the Red Cross. States in conflict are prohibited from using air ambulances to secure military installations, collect intelligence, and transport personnel and military supplies to assist belligerents.

In modern international law, there is no international legal act that would regulate the rules for conducting an air war. At the Hague Conference in 1899, a special Declaration was adopted prohibiting the throwing of projectiles and explosives from balloons. At the Hague Conference of 1907, this Declaration was recognized as obligatory for all states. However, it was not possible to develop a special convention.

Developed in The Hague (1923), the draft rules for conducting air warfare never entered into force. However, the provisions contained in it have a solid basis for the formation of rules for conducting air warfare. In the light of the unlawful bombing by NATO military aviation of undefended cities in various regions of the world, the urgency of adopting such rules is increasing.

In general, the conduct of air warfare is fully covered by the existing norms of international humanitarian law.

The main international legal acts that determine the legal status of these protected persons are the Geneva Conventions of 1949 (all four) and Additional Protocols I and II of 1977. Based on these documents, we first consider the legal status of the wounded and sick.

Criminal orders issued by the occupying State shall only enter into force after they have been published and communicated in the national language of the population.

The occupying State is obliged to ensure the supply of food and medicine to the civilian population. It can requisition food stocks, medicines located in the occupied territory, only taking into account the needs of the civilian population. Moreover, subsequently, the occupying state must take measures to ensure that the requisition is fairly reimbursed. Activities must be ensured in the occupied territory medical institutions and services.

Hijacking, as well as the deportation (expulsion) of the civilian population from the occupied territory to the territory of the occupying state or to the territory of any other state, is prohibited under any pretext. At the same time, a specific occupied area may be completely or partially evacuated to ensure the safety of the population, as well as for compelling reasons of a military nature. In such cases, the civilian population can only be moved deep into the occupied territory, unless it is practically impossible to do so. The population evacuated in this manner must be returned to their original places immediately after the combat operations in the area are completed.

The occupying power may not compel protected persons to serve in its armed forces. It is not allowed to exert pressure on the civilian population in order to achieve their voluntary entry into the army of an enemy state.

In accordance with the norms of IHL, the following actions are prohibited in the occupied territory: destruction of movable and immovable property that is state, collective or private property of an enemy power and its individuals; taking hostages from among civilians; changing the status of officials or judges, applying sanctions or any measures of coercion to them, discriminating on the grounds that they refrain from performing their duties for reasons of conscience; carrying out all kinds of measures aimed at causing unemployment or restricting the possibility of work for citizens of the occupied territory in order to force them to work for the occupying power.

The occupier may involve the civilian population in labor activities, with the exception of performing work that would force him to take part in military operations. The work must be carried out within the occupied territory where these persons are located. It must be paid fairly and in accordance with the physical and intellectual abilities of the workers.

The belligerent states may intern the civilian population both inside and outside the occupied territory. Internees fully retain their civil capacity and exercise the rights arising therefrom to the extent that this is compatible with internment. At the same time, internees will be provided free of charge with the means necessary for their maintenance, as well as medical care. Places of internment should not be located in areas particularly exposed to military danger. At the same time, internees must be placed separately from prisoners of war and persons deprived of their liberty, and have their own administration.

International law applicable in times of armed conflict contains rules according to which a belligerent party is responsible for the treatment of its representatives with the civilian population, and this does not remove personal responsibility from these representatives.

Speaking about the protection of the civilian population during armed conflicts, one cannot fail to mention the protection of the environment by the norms of international law, i.e. habitat for the civilian population.

In Art. 55 of Additional Protocol I of 1977, for the first time in IHL, a rule is enshrined that prescribes, in the conduct of hostilities, to take care to protect the natural environment from extensive, long-term and serious damage. Such protection includes the prohibition of the use of methods or means of warfare that are intended to cause, or may be expected to cause, such damage to the natural environment and thereby harm the health or survival of the population.

The cessation of a state of war must be distinguished from the cessation of hostilities. In the practice of international relations, the most common forms of cessation of hostilities are truce and surrender.

A truce may be general or local (Article XXXVII of the Hague Regulations on the Laws and Customs of Land Warfare). A general truce stops hostilities, and it extends to the entire theater of war and, therefore, is an act not only military, but also political, and therefore is concluded by the belligerents on behalf of state bodies. Under certain circumstances, it can not only suspend hostilities, but also lead to their cessation.

Examples include the Korean Armistice Agreement of July 27, 1953, the Algiers Ceasefire Agreement of March 18, 1962.

Of great importance for ensuring a truce is the establishment of the time of entry into force of an armistice agreement and the duration of this agreement. The parties themselves decide when the agreement on the cessation of hostilities will enter into force: either immediately after its signing, or after a certain period of time. If the terms of the armistice do not determine the period of its validity, then each side has the right to resume hostilities at any time, having warned the other side in advance. This provision does not apply to a general truce, as it is a decisive step towards establishing peace; its violation is regarded as an act of aggression.

Thus, the general truce cannot be violated and must be regarded as indefinite. Any significant violation of the truce by one of the parties gives the other the right to refuse it and even in extreme cases immediately resume hostilities. However, violation of the terms of the armistice by individuals acting on their own initiative only gives the right to demand punishment for those responsible and compensation for losses incurred, if any (Articles XL, XLI of the Hague Regulations on the Laws and Customs of Land War of 1907).

Modern international law provides for the conclusion of a truce by decision (and under the control) of the UN Security Council, adopted in accordance with Art. 40 of the UN Charter on provisional measures, which may include, in particular, a ceasefire, the withdrawal of troops to previously occupied positions, etc.

The purpose of a local truce is to suspend hostilities between individual military units and units in a limited area of ​​​​the theater of operations in order to pick up the wounded and sick, bury the dead, and evacuate women and children from besieged areas. The Geneva Convention for the Protection of Civilian Persons in Time of War provides for the possibility of concluding local agreements for this purpose (Article 17). A similar provision is contained in Art. 15 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, which states that “whenever circumstances permit, truce or cease-fire agreements or local agreements will be concluded to allow the selection of the wounded remaining on battlefield, transport them, and exchange them. In the same way, local agreements may be concluded between the parties to the conflict on the evacuation of the wounded and sick from the besieged or surrounded zone, on their exchange and on the admission to this zone of medical and religious personnel and property going there. After the accomplishment of the tasks for which the temporary truce was carried out, the resumption of hostilities may follow. The limited nature of the tasks of a local truce, its short-term nature predetermine the possibility of resolving the issue of it by the commanders of the troops (forces), unless laws and military regulations provide for a different procedure.

The second form of cessation of hostilities is surrender. A variation of it is unconditional surrender. It differs from capitulation in that the defeated side loses even formal equality with the winner. So, in World War II, after the total defeat of Nazi Germany and militaristic Japan, each of them signed the Act of Unconditional Surrender.

It must be emphasized that neither a truce nor a capitulation ends the state of war. It is true that the practice of international relations in the post-war period has made changes to this generally recognized position.

For example, the aforementioned Korean Armistice Agreement (1953) and the Vietnam Cessation of Hostilities Agreement (1973) ended not only hostilities but also the state of war, restoring peace in these countries. However, ending the state of war in armistice agreements is not the rule, but the exception.

The main international legal form of ending the state of war is the conclusion of a peace treaty. In terms of content, it covers a wide range of issues: the termination of the state of war, the restoration of peaceful relations, as well as the responsibility of war criminals, the resolution of territorial issues, the exchange of prisoners of war, compensation for losses, the return of property, etc.

The state of war between the belligerent states is also terminated by:

a) adoption of a unilateral declaration, i.e. there are no negotiations between the states, and the restoration of peaceful relations is the result of the initiative of one side. Thus, the USSR ended the state of war with Germany by publishing the Decree of the Presidium of the Supreme Soviet of the USSR of January 25, 1955. In accordance with this document, the state of war with Germany was terminated and peaceful relations were established with it;

b) the conclusion of a bilateral declaration, when the state of war ends as a result of negotiations. Thus, on October 19, 1956, the USSR and Japan signed a joint declaration to end the state of war.

Legal consequences of the end of the war. They come for both belligerents and neutral states and are as follows:

• terminate the rule of international humanitarian law;
• establishing diplomatic relations between states;
• the operation of previously concluded international treaties is renewed;
• the repatriation of prisoners of war, as well as the civilian population who ended up on the territory of the former enemy, is carried out;
• issues of political and material responsibility of states, as well as criminal liability of individuals, etc., are resolved.

Thus, the end of the war is an important and decisive factor for the development of post-war relations. Often, states again seek to establish diplomatic relations interrupted by the war, activate interstate cooperation in various fields, already on a different international legal basis, designed for peaceful relations.

Norms of International Humanitarian Law and Russian Legislation Russia is a party to international legal documents that establish the rules for waging war. These rules were transformed into legislative acts and army orders. For example, Order No. 697 of October 31, 1914, signed by the Minister of War and approved by the Emperor, introduced the "regulation on prisoners of war" taking into account the international agreements in force at that time.

On June 4, 1918, a Decree was published recognizing all international conventions on the Red Cross. The Council of People's Commissars of the RSFSR brought to the attention of the International Committee of the Red Cross in Geneva and the governments of all states that recognized the Geneva Convention that this Convention, both in its original and in all its later editions, as well as all other international conventions and agreements recognized by Russia before October 1915 are recognized and will be observed by the Russian Soviet government.

The Second World War became a serious test for the system of principles and norms of IHL. The Soviet Union, unlike Germany and most other countries, refused to sign the 1929 Geneva Convention on the Treatment of Prisoners of War. Subsequently, this was used by the enemy as a formal pretext for refusing to apply its provisions to Soviet prisoners of war.

In the post-war period, four Geneva Conventions for the Protection of War Victims of 1949 were signed with reservations by the Soviet Union and ratified in 1954. Two of them were transformed into instructions for the application in the Armed Forces of the USSR of the Geneva Conventions of August 12, 1949 on improving the lot of the wounded, sick in active armies and shipwrecked at sea.

Additional Protocols I and II to these Conventions were signed by the USSR on December 12, 1977 and ratified on August 4, 1989.

As a first step in fulfilling international obligations arising from participation Soviet Union in Additional Protocols I and II to the Geneva Conventions of 1949 for the Protection of Victims of War, was the publication of the statutes of the Armed Forces, as well as the Order of the Ministry of Defense of 1990 No. 75, which are still in force today. This order announces the named documents and contains requirements for their execution in the troops and forces of the fleet. Commanders (chiefs) of all levels are required to disseminate knowledge about IHL, study it in the system of combat training, provide subordinates with the texts of international legal documents, legislative acts that determine the behavior of army and navy personnel during an armed conflict. Instructions were given to take into account the norms of IHL when conducting classes, exercises in the troops and navy, as well as in the development of draft legislative acts, general military regulations, government decisions, orders and directives. When resolving issues related to the application of the norms of IHL, commanders (chiefs) rely on legal advisers (Article 82 of Additional Protocol I), whose functions, by the specified order of the Minister of Defense, are assigned to officers of the legal service. The provisions concerning the observance by military personnel of the norms of international humanitarian law are legally enshrined in the Federal Law "On Defense" of 1996, federal law"On the status of military personnel" 1998

A significant contribution of the Ministry of Defense of the Russian Federation to the implementation of the norms of international humanitarian law in military legal acts is the Manual on International Humanitarian Law for the Armed Forces of the Russian Federation (hereinafter referred to as the Manual), approved by the Minister of Defense in 2001.

For the first time in the post-October period, a normative legal act was issued obliging commanders (chiefs) to ensure compliance with the rules of war in the process of conducting hostilities. The manual is addressed to commanders, tactical level headquarters and is a fairly voluminous document that reflects the requirements of the fundamental sources of international humanitarian law. It consists of six sections (182 paragraphs) and six appendices. The Instruction reveals in sufficient detail the provisions relating to: the duties of commanders (chiefs) in the process of organizing and conducting hostilities, their assistants in legal work, as well as military medical personnel; restrictions on the belligerents in the use of methods and means of warfare; responsibility of military personnel for illegal actions; attitudes of military personnel towards the victims of armed conflicts, medical and religious personnel of the enemy; actions of troops in the occupied territory; features of the application of the norms of international humanitarian law in internal armed conflicts. Separate sections are devoted to the peculiarities of the application of the norms of international humanitarian law in the conduct of hostilities by air and naval forces; observance of the norms of international humanitarian law in the provision of hostilities; studying the norms of international humanitarian law (during combat training and in military educational institutions). A significant role in the work on educating the personnel of the troops (forces) is called upon to play the Code of Conduct for a serviceman of the Armed Forces of the Russian Federation - a participant in hostilities (Appendix 4), which contains the fundamental requirements, the "zest" of international humanitarian law. The advantage of the Instruction is that it intertwines international humanitarian law with the “technology” of warfare, shows their specificity depending on the spatial environment of the troops (forces): on land, at sea and in the air.

In recent years, new general military regulations have been adopted (entered into force on January 1, 2008), as well as combat regulations for the tactical level of all types of troops and branches of the Armed Forces of the Russian Federation, which take into account the requirements of international humanitarian law for commanders (chiefs), to all military personnel.

In the Criminal Code of the Russian Federation, taking into account the requirements of IHL, the following are recognized as crimes: the use of prohibited methods and means of warfare; ecocide; mercenary; an attack on persons or institutions that enjoy international protection.

In-depth study of these documents by military personnel in the course of combat training, the practical application of their norms in the process of conducting command-staff exercises, business games, etc. will be an important measure aimed at preventing serious violations by military personnel during internal and international armed conflicts, will contribute to the education of their in the spirit of philanthropy and respect for the law, the humanization of relations in the military environment.

Within the framework of the Commonwealth of Independent States (CIS), on September 24, 1993, the Agreement on Priority Measures for the Protection of Victims of Armed Conflicts was signed. In it, its participants expressed their concern about the alarming situation that has developed in a significant part of the former Soviet Union in connection with armed conflicts on national, religious and political grounds.

Condemning gross violations of the norms of IHL (use of prohibited means and methods of warfare, attacks on the civilian population and civilian objects, taking of hostages, torture and other types of attacks on human dignity), the parties to the Agreement undertook to cooperate on a bilateral and multilateral basis in taking the necessary measures aimed at prevention of human rights violations in areas of armed conflict, including measures to prosecute and punish persons who organized, committed or ordered to commit acts that qualify as war crimes or crimes against humanity under international and/or domestic law.

Before proceeding to a detailed examination of issues related to the protection of victims of war, it is necessary to clarify the two concepts underlying it: “combatant” and “protected persons”. All provisions of the Geneva Conventions and their Additional Protocols are built around these two key definitions. Although the law of war has existed for many centuries, the term “combatant” was only defined in 1977. Paragraph 2 of Art. 43 of Protocol 1 reads:

“Persons who are part of the armed forces of a Party to the conflict (other than medical and religious personnel) are combatants, i.e. they have the right to take a direct part in hostilities.” This right, as well as the status of combatants, is directly related to their right to be considered prisoners of war if they fall into the power of the opposing side (paragraph 1 of article 44). The status of a combatant does not mean that he is given carte blanche. Of course, he is “obligated to comply with the rules of international law applicable in armed conflicts” and bears individual responsibility for any violations of these rules committed by him. But even such violations “do not deprive the combatant of his right to be considered a combatant or, if he falls into the power of the opposing side, his right to be considered a prisoner of war.” However, the rule fixed in paragraph 2 of Art. 44, is not without exception, the essence of which is the duty of the combatant “to distinguish himself from the civilian population by uniforms or other distinguishing marks at the time when they are engaged in an attack or military operation in preparation for an attack”. Further, paragraph 3 of Art. 44 of Protocol 1 provides that “during armed conflicts, there are situations where, as a result of hostilities, an armed combatant cannot distinguish himself from the civilian population”. In such a case, he retains his status as a combatant if he carries his weapons openly during every military engagement and while in full view of the enemy in the course of deployment into battle formations preceding the commencement of the attack in which he is to take part. On the contrary, if a combatant is taken prisoner at a time when he does not comply with these requirements, then he loses the right to be considered a prisoner of war. In fairness, this harsh rule is softened by the one contained in paragraph 4 of Art. 44 of Protocol 1 by the statement: “Nevertheless, he shall be accorded protection equivalent in all respects to that accorded to prisoners of war in accordance with the III Convention and this Protocol”. And here it is clarified that this equivalent protection is provided even “in the event that such a person is brought to trial and punished for any offenses that he has committed”. As noted above, the status of combatants is closely linked to the status of prisoners of war.

Based on Art. 4 III of the Convention, the following categories of combatants can be distinguished:

Members of the armed forces of a party to the conflict, even if they consider themselves subordinate to a government or authority not recognized by the enemy;

Members of other militias or volunteer units, including members of organized resistance movements belonging to a party to the conflict and operating in or outside their own territory, even if that territory is occupied, if all such groups meet four conditions:

a) have at their head a person responsible for their subordinates;

b) have a specific and clearly visible from a distance distinctive sign;

c) openly carry weapons;

d) observe in their actions the laws and customs of war.

The status of prisoners of war is entitled to various categories of persons who do not fall under the definition of combatants given above, or who are not combatants. Savinsky L.I. Armed conflicts and international law. M., 1976, p. 237-241; International Law Course. T.6. (under the editorship of N.A. Ushakov). M., 1992, p. 296; Rene Kozirnik. International humanitarian law. ICRC, Geneva, 1988 and others. These include:

Persons taking part in spontaneous mass armed uprisings, when the population of an unoccupied territory, at the approach of the enemy, voluntarily takes up arms to fight the invading troops, without having had time to form into regular troops, if they openly bear arms and observe the laws and customs of war;

Persons who follow the armed forces, but are not directly part of them (for example, accredited war correspondents);

Crew members of the merchant fleet and civil aviation crews of the parties to the conflict;

Persons who are members of the armed forces and employees of civil defense organizations (art. 67 of Protocol I).

Partisans. When considering the question of combatants, one should specifically single out those who act as part of the so-called irregular armed forces, and above all participants in guerrilla warfare. Partisans are understood as persons organized into detachments that are not part of regular armies, fighting mainly behind enemy lines in the process of a just war against foreign invaders and relying on the sympathy and support of the people. International law links the recognition of the status of a lawful combatant for each guerrilla individually with the fulfillment by him of a number of specific conditions, which I mentioned above when considering the issue of categories of combatants. Before proceeding to a detailed presentation of the conditions that must be met for a partisan to be recognized as a lawful combatant, it is necessary to touch on the historical aspect of this problem. The fact is that in the 19th century, the Western doctrine of international law either kept silent about the partisan struggle, or, following the example of the American professor F. Lieber (the author of the famous “Instructions of 1863 for the US Army in the field” and the only special work in the 19th century, “Partisans and partisan groups”) put forward a demand for every possible restriction of this form of struggle and expressed the hope that with the improvement of modern customs of war, partisans would be regarded as robbers” 11 Cit. Quoted from: Course of International Law. V.5 (under the editorship of F.I. Kozhevnikov). M., 1969, p. 295. .

However, at the turn of the 19th and 20th centuries, on the initiative of Russia and personally thanks to the efforts of Professor F. Martens, the legitimacy of the partisan struggle was fully and unconditionally confirmed. The rules for conducting guerrilla warfare, first formulated in the Hague Convention of 1899, are reflected in the preamble of the Convention on the Laws and Customs of War on Land (IV Hague Convention) and Art. 1 and 2 of the Regulations on the laws and customs of war on land, which is an annex to the said convention. With the adoption of the Hague Conventions, each individual partisan was declared a lawful combatant, placed under the protection of international law, but subject to the 4 mentioned conditions.

1. In order to have combatant status, a guerrilla must belong to a militarily organized unit acting on behalf of the state, headed by a responsible person. This requirement is indisputable, since the presence of a responsible commander is evidence of the organization of the partisan movement and serves as a guarantee that its participants comply with the rules of warfare. However, the condition of a responsible commander should not be absolutized, let alone interpreted broadly 22 See, for more details, Poltorak A.I. Savinsky L.I. Decree. op., p. 255. It is indifferent to international law who the commander leading the partisans will be: an officer, a government official, or a person chosen for this post by the partisans themselves. It is only important that he be responsible for the observance by his subordinates of the rules of warfare.

2. The guerrilla must have a distinctive insignia that makes it possible to distinguish externally between a combatant and a civilian. The need to wear a distinctive sign, on the one hand, indicates the intention of this person to take an active part in hostilities, and on the other hand, it allows the belligerents to observe the laws and customs of war (in this case, not to conduct hostilities against the civilian population). Provided for by the Hague Conventions, and then literally reproduced by the Geneva Conventions of 1949, the requirement “to have a certain and clearly visible from a distance distinctive sign” caused a lot of controversy and discrepancies among scientists involved in this issue. 11 See Poltorak A.I. Savinsky L.I. Decree. op., p. 257.. Their essence, however, boils down to the fact that, firstly, partisans cannot be put in a worse position than regular army soldiers, therefore, there can be no question of a broad interpretation of a “clearly visible” distinctive sign; secondly, a certain distinguishing sign should not interfere with the camouflage of partisans, since under modern conditions, careful camouflage of troops is one of the most important principles of warfare.

3. The guerrilla must openly carry weapons. This condition is closely related to the previous one, since when it is fulfilled, the tasks of masking partisans cannot be neglected either. It should be noted that the requirement to “carry weapons openly” has always been criticized in the international legal literature. This criticism boiled down to the fact that if the partisans already have a distinctive sign, then this is enough to be considered as combatants. At the same time, a person who openly carries weapons, but does not have a distinctive sign of a partisan movement, does not necessarily belong to a partisan detachment. It should be borne in mind that the partisans use the same methods of warfare that regular troops use.

4. In his actions, the partisan is obliged to observe the laws and customs of war. This condition is indisputable and the most important of all listed. Aimed at the humanization of armed conflicts, the requirement that partisans observe the laws and customs of war is aimed at curbing attempts to turn war into an orgy. At the same time, this requirement has nothing to do with the specifics of guerrilla warfare. It is also binding on other combatants, including members of the regular armed forces. It follows from this that violations of the laws and customs of war committed by individual partisans entail appropriate legal consequences only in relation to the violator. But these violations do not in the least affect the legal status of the partisan detachment as a whole.

Summarizing the above, it is easy to see that, in contrast to the requirements to observe the laws and customs of war in their actions, as well as to have a responsible commander - which are unshakable - the other two conditions under which guerrillas are recognized as lawful combatants are debatable. Despite the weakness of the norms on the open carrying of weapons and the distinctive sign, they cannot be completely denied. The fact is that the rejection of these conditions may destroy the basis on which the basic principle is based - to distinguish between combatants and the civilian population. Moreover, it can disadvantage the civilian population, which can be attacked at any time. Finally, such a refusal would upset the balance of rights and obligations between combatants and the civilian population, which would make it difficult to regulate their legal status and undermine the protection of the civilian population. In contrast to this statement, supporters of the rejection of the conditions on the distinctive sign and the open carrying of weapons give the following arguments. First, given the nature of the means of warfare used by guerrillas in modern armed conflicts (from machine guns to tanks, artillery and missiles), these conditions are, in their opinion, meaningless. Secondly, they believe that attempts to prove that the partisans' lack of a distinctive sign or visible weapon leads to a weakening of the immunity of civilians nullify the individual nature of responsibility, and therefore, in a roundabout way, restore reprisals prohibited by international law 11 See. Poltorak A.I. Savinsky L.I. Decree. op., p. 260. The result of such a heated discussion was the inclusion in Additional Protocol I of 1977 of paragraph 3 of Art. 44 as follows:

“In order to help enhance the protection of the civilian population from the effects of hostilities, combatants have an obligation to distinguish themselves from the civilian population at the time when they are engaged in an attack or in a military operation in preparation for an attack. However, since there are situations in armed conflicts where, due to the nature of hostilities, an armed combatant cannot distinguish himself from the civilian population, he retains his status as a combatant, provided that in such situations he carries his weapons openly:

a) during each military engagement;

b) at a time when he is in sight of the enemy during deployment in combat formations 22 By this, in my opinion, one should understand the movement of a military unit immediately preceding the start of the attack (deployment), occurring within the enemy’s line of sight, including by means of optical instruments prior to the commencement of the attack in which he is to take part.”

This provision is a great contribution to international humanitarian law, since it contains practical guidance on the application of the condition on the open carrying of weapons in a combat situation. From the meaning of paragraph 3 of Art. 44 it follows that such situations can take place both in the occupied territory, when the population opposes the occupier, and in any armed conflict 11 Artsibasov I.N. Egorov S.A. Armed conflict: law, politics, diplomacy. M., 1989, p. 115..

Spies and mercenaries. In accordance with Art. 46 and Art. 47 of Protocol I, spies and mercenaries are not entitled to the status of a prisoner of war. But it would be wrong to confine ourselves only to the declaration of this principle, since this aspect of the problem is of practical importance. Thus, during armed conflicts, the question often arises of distinguishing between the concepts of a spy and a military intelligence officer. For the first time it was considered in detail in the Regulations on the Laws and Customs of Land Warfare (annex to the IV Hague Convention of 1907), which devoted an entire chapter to it under the title “On Scouts”. Art. 29 defines the concept of a military spy or scout as follows: “A scout can only be recognized as such a person who, acting secretly or under false pretenses, collects or tries to collect information in the area of ​​operations of one of the belligerents with the intention of communicating such to the opposing side.” 22 International law. Conducting combat operations. Collection of the Hague conventions and other agreements. ICRC, M., 1995, p. 24. . Therefore, what characterizes a military spy is that he acts "in secret" or "under false pretenses." Military scouts who penetrate the enemy's location for reconnaissance purposes, but act in their military uniform, are not considered scouts (spies). Equally important to international humanitarian law is the rule that an infiltrator (military spy) caught on the spot cannot be punished without prior trial; and returning to his army and subsequently taken prisoner by the enemy, he is recognized as a prisoner of war and is not liable for his previous actions as a scout (spy) - Art. 30, 31 Regulations on the laws and customs of land war. To this it may be added that Art. Article 5 IV of the 1949 Geneva Convention provides that if a civilian in occupied territory is apprehended as a spy or saboteur, he will “be treated with humanity and, in the event of prosecution, will not be deprived of his right to a fair and normal trial as provided for by this Convention.”

As for the legal status of a mercenary, its concept was first disclosed in Art. 47 of Additional Protocol I. Paragraph 2 defines a mercenary as a person who:

a) is specially recruited to fight in an armed conflict;

b) actually takes part in hostilities;

c) is driven primarily by the desire for personal gain;

d) is neither a national of a Party to the conflict nor a permanent resident in territory controlled by a Party to the conflict;

(e) is not a member of the armed forces of a Party to the conflict;

f) not sent by a State which is not a belligerent to perform official duties as a member of its armed forces.

This rule allows you to clearly establish the following criteria for a mercenary. Firstly, the main criterion for determining a mercenary is an incentive motive - material reward. Although Art. 47 does not speak about the form of such remuneration (regular payments or one-time payments - for each killed, captured, for the destruction of enemy military equipment, etc.), the main thing in it is that it is much higher than for combatants of the same rank and functions belonging to the armed forces of that party. Secondly, a mercenary is specifically recruited to participate in a specific armed conflict. It does not matter where the mercenary is recruited (abroad or on the territory of the state in which the armed conflict takes place), and also who recruited him: a special organization, an individual or a representative of one of the warring parties. Thirdly, the mercenary is neither a citizen nor a resident of territory controlled by a party to the conflict and is not sent by third States to perform official duties as a member of their armed forces. This criterion makes a clear distinction between mercenaries and military advisers who do not take a direct part in hostilities and are assigned to serve in a foreign army by agreement between states. Fourth, an important criterion characterizing a mercenary is his belonging to the armed forces of one of the belligerents. According to Art. 3 IV of the Hague Convention of 1907, the belligerent party "is responsible for all acts committed by persons forming part of its military forces." Consequently, when distinguishing between the status of a mercenary and a volunteer, it is precisely the fact that a given person is included in the personnel of the armed forces that makes this person a lawful combatant, and the belligerent party, which included him in the personnel of its armed forces, thereby assumes international legal responsibility for his actions.

The foregoing allows us to conclude that the study of the problem of combatants in modern armed conflicts remains relevant, since a clear definition and international legal consolidation of this concept have importance both to ensure the rights of the combatants themselves and to protect the civilian population.

patronage principle. In international law, there has long been a special category of persons under special protection and patronage. These include those who either did not take a direct part in the armed struggle at all, or ceased such participation from a certain moment. International humanitarian law recognizes them as victims of war and, establishing a special regime for this category of persons, formulates a whole system of humanitarian norms and principles. The above persons include:

Wounded and sick in active armies;

Wounded, sick and shipwrecked members of the armed forces at sea;

Prisoners of war;

Civilian population.

Each of these categories of protected persons is protected by one of the four relevant Geneva Conventions and their Additional Protocols of 1977. According to these international legal acts, protected persons must, under all circumstances, be respected and protected; they must be treated humanely, without any discrimination on grounds such as sex, race, nationality, religion, political opinion or other similar criteria (art. 12 of Conventions I and II, art. 16 III of the Convention and art. 27 IV of the Convention ). “Respect” and “protection” are complementary elements of the patronage principle. “Respect” as a passive element implies an obligation not to harm protected persons, not to subject them to suffering, much less to kill; “protection” as an active element means the obligation to avert danger from them and prevent harm from being done to them. The third element of this principle - "humane" treatment - concerns the moral aspect of the attitude towards protected persons, designed to determine all aspects of their treatment. This attitude should be aimed at ensuring, despite the harsh circumstances in which they find themselves, that protected persons have an existence worthy of a person. Finally, the prohibition of any kind of discrimination is the last essential element of the principle of patronage, which must be taken into account when considering the three basic principles listed above 11 Fritz Kalshoven. Limitation of methods and means of warfare. ICRC, M., 1994, p. 54. The authors of the Conventions, which contain about four hundred sometimes very detailed articles, have created a carefully developed system of rules for the protection of various categories of protected persons. In my work, I will focus on the most important points of this vast material, and the term "protection of victims of war" should be considered in a broad sense, including in it three other elements of the principle of patronage.

International legal protection of war victims is considered within the framework of international humanitarian law (IHL). It provides for the protection of war victims in the form of the duty of belligerent countries, including the Russian Federation, to provide international legal protection to certain subjects in the course of armed conflicts. They include:

• the wounded and sick;
• persons who have been shipwrecked and are included in the armed forces (AF) at sea;
• prisoners of war.

Such persons should be given a status that guarantees humane treatment. This prevents bullying, violence, mockery of people, etc.

Remark 1

The main international acts capable of determining the legal status of the listed persons are provided by the Geneva Conventions of 1949 and Additional Protocols I and II to them, adopted in 1977.

The composition of the victims of the war

Military personnel and civilians may act as wounded and sick persons. They require medical assistance or care due to injury, illness or other physical or mental disorder (disability). This is also provided for subjects refraining from any hostile action.

This category also includes those who are shipwrecked or endangered at sea (in other waters), women in labor, newborns and infirm people, pregnant women and other subjects who need medical attention.

The regime under consideration is extended to the personnel of the militias, volunteer detachments, partisans, persons who follow the Armed Forces, but are not part of them, to war correspondents, personnel of services serving the Armed Forces. It can also be members of the crew of the merchant fleet, the population located in the unoccupied territory, which, in the event of an enemy approaching, is able to spontaneously take up arms to fight the invading troops. This is provided if such persons carry weapons and follow the principles and norms of IHL.

Any wounded (sick) person, as well as shipwrecked persons, regardless of nationality, must be respected and protected. Russia, like any other country, must treat such persons humanely, which is manifested in providing them with the maximum possible extent and in the shortest possible time of the medical assistance and care that their condition requires. No distinction should be made between these persons other than medical considerations. This protection must be provided not only at the onset of war, but also at the outbreak of any armed conflict that arises between two or more parties. This is provided for cases where one of the parties does not recognize the state of the conflict. The rules relating to the protection of the victims of war must apply to all cases of occupation, even if it has not met with any armed resistance.

Remark 2

As for the neutral countries, they must also provide international legal protection for the wounded and sick. In this case, the latter cannot partially or completely waive the rights defined for them in international conventions.

If a wounded (sick) person from the Armed Forces of one belligerent is at the mercy of another belligerent, then he is considered a prisoner of war. In the address of such a person, it is necessary to apply the rules of international law that apply to prisoners of war.

It is forbidden to perform several actions in relation to the wounded, sick and shipwrecked persons (including persons equated to them by legal status):

• encroachments on physical integrity and life, including all types of murders, mutilations, cruel treatment, torture, torment;
• hostage taking;
• infringement on the dignity of a person, in the first place, insulting and degrading treatment;
• carrying out medical or scientific experiments with the help of a person;
• removal of organs (individual tissues) for the purpose of transplantation;
• conviction and use of punishment without a prior decision of the court, which must be issued by a duly constituted court (in the presence of judicial guarantees, which are recognized as necessary by civilized nations).

The belligerents must take all possible measures to search for and transport the wounded and sick, protecting them from robbery and ill-treatment. They may approach local residents to pick up and care for the wounded and sick under their supervision. To do this, persons who have expressed a desire to perform such work should be provided needed help and provided benefits.

The military authorities are obliged to give citizens of the country and charitable societies the opportunity, even in areas of invasion or occupied areas, to pick up the wounded and sick, to take care of them on their own initiative. Contributors cannot be prosecuted or convicted of any of the above actions. Conflicting countries are obliged, if possible, to register information about persons who were captured and were wounded or sick. This is carried out for subsequent transfer in the prescribed manner to their country of which they are citizens.

Remark 3

IHL requires warring countries to form medical associations (may be military or civilian). They are used to search, transport, treat the wounded and sick. They are placed so that there is no danger when the enemy attacks one of the military facilities.

Medical personnel assigned to search for, transport or treat such persons belong exclusively to the administration of sanitary associations and must be protected by the rules of IHL. Sanitary formations and their personnel are equal in their rights to the personnel of volunteer aid societies. The latter are authorized by their government. It may also include Red Cross organizations and other National Societies that correspond to them.

Features of the protection of prisoners of war

The protection of war victims consists in the obligation of belligerents to provide legal treatment for prisoners of war. IHL contains the provision that any combatant who falls into the hands of an enemy opposing party may be a prisoner of war. In other words, the rights of prisoners of war can be enjoyed by persons who belong to the personnel of the Armed Forces of a belligerent country, militia, volunteer detachments, resistance movements, partisans, as well as persons accompanying the Armed Forces, but not included in their composition, crew members of ships of the merchant fleet, etc. If combatants violate the norms of IHL in the course of an armed conflict, falling into the power of the opposing side, this does not deprive them of the right to be prisoners of war.

Remark 4

Prisoners of war may not, in part or in full, renounce the rights that international humanitarian law or special agreements of the belligerents recognize for them.

In accordance with the meaning of IHL, prisoners of war are capable of falling into the power of an enemy country, and not by individuals (military units) who took them prisoner. For this reason, regardless of the responsibility vested in individuals, it is up to the detaining countries to ensure that the required legal regime prisoners of war. They are also responsible for violations of this regime. The transfer of prisoners of war is carried out by the host country only to another country that is a party to humanitarian conventions. This occurs only after it has been ascertained that the country to which the prisoners of war are to be transferred is willing and able to apply the rules of IHL. After the transfer of prisoners to another country under the conditions considered, the responsibility for the application of the rules of IHL lies with the host country until such time as the prisoners are in its care.

The basis of the legal status of this category of war victims is the norm according to which humane treatment is provided for the treatment of prisoners of war. This manifests itself as a prohibition on the use of any illegal act or omission on the part of the state that holds a prisoner, which led to the death or puts the health of a prisoner of war in serious danger. Thus, no prisoner of war shall be physically mutilated and shall not be subjected to scientific or medical experimentation which is not justified by considerations of medical treatment and the interests of the prisoner. Similarly, all prisoners of war use protection against various acts of violence, intimidation, crowd curiosity. It is forbidden to use any reprisals against them.

In the event of any circumstances, prisoners of war must be respected for their honor and personality. Women should be treated with due respect for their gender. In any case, communication with them is not worse than with men. Captives fully retain their own civil legal capacity, which was used during the capture. However, the captive country is recognized as competent to limit the rights granted by this legal capacity (only to the extent that the conditions of captivity require it).

The detaining State shall provide for the free maintenance of prisoners of war and medical assistance as their state of health may require.

Remark 5

IHL contains a prohibition on any discrimination against prisoners of war (for example, on racial, national, religious, political grounds). This is also provided for other reasons, which are based on similar criteria (excluding the privileged treatment established by the country for prisoners of war by age, qualification or health condition).

When captured during interrogation, each prisoner of war must announce information about his name and surname, rank, date of birth and personal number (other equivalent information, in the absence of this).

To obtain information about a prisoner, no physical or moral torture or other coercive measures can be used. If the prisoner refuses to answer questions, then he should not be threatened, insulted or subjected to restrictions and persecution. Interrogations are carried out in a language that is understandable to prisoners of war.

As soon as possible after being taken prisoner, prisoners of war must be evacuated to camps that are located far from places where hostilities take place. In the danger zone, only prisoners of war can be temporarily detained, who, due to illness (wounds), are at greater risk during evacuation than when they are on the spot.

No prisoner of war may ever be sent to an area where he would be exposed to fire from a combat zone. They cannot be detained there or used to protect points or areas from military operations by their own presence.

The conditions of accommodation in camps provided for prisoners of war must be no less favorable than those used by enemy troops stationed in the same locality. Conditions are formed taking into account the habits and customs of prisoners of war, should not harm their health. In camps where women prisoners of war are kept together with men, separate rooms for sleeping are provided for different sexes. Prisoners of war have the right to keep insignia and nationality, items that have a subjective value, and insignia.

The country that holds them in captivity has the right to use able-bodied prisoners of war as labor. Here it is important to take into account their age, gender, rank, physical abilities. This is required to maintain them in a normal moral and physical condition. The Geneva Convention for the Protection of Victims of War, adopted in 1949, deals with the conditions for employment, and IHL, in its provisions, regulates in detail the issues of providing military personnel with food and clothing. Thus, prisoners of war have the right to correspond, receive money transfers, personal or group parcels with food, clothing, medicines and items that they need to meet their needs.

At the head of the prisoner of war camp is an officer from the structure of the regular armed forces of the state holding the prisoner. He is responsible, under the control of his government, for the knowledge and correct application by camp personnel of the rules of IHL which are intended to govern the situation of prisoners of war.

IHL includes provisions relating to the liability of prisoners of war for offenses committed by them. Prisoners of war must comply with the laws, regulations and orders that are in force in the armed forces of the country holding them captive. It has the power to take both disciplinary and judicial action against any person in captivity who violates these laws, statutes and orders. In every situation of violation of discipline, an investigation must be carried out. For one offense (misdemeanor on the same charge), prisoners of war can be punished only once. All rules, orders, announcements and notices, which include provisions on the conduct of prisoners of war, must be communicated to them in a language they understand.

Prisoners of war may be released and repatriated after the cessation of hostilities. Those prisoners against whom criminal prosecution was initiated, the state may detain until the end of the trial (serving the sentence).

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