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Commentary - Demilitarized zones
    [p.707] Article 60 -- Demilitarized zones


    [p.708] 2298 The Rapporteur of Committee III noted that it was difficult to find an adequate term to describe the protected zones which it was felt should be created. The terms discussed included "neutralized zones", "non-militarized zones" and in French even the term "zones civilisées", but finally the term "demilitarized zones" was adopted. (1)

    2299 In fact, this expression is not in itself very accurate; to be precise, it ought to be "delimitarized zones in the sense of Article 60 of the Protocol". Demilitarized zones could actually mean very different institutions. Thus, for example, some peace treaties have imposed on the defeated Party the demilitarization of certain areas. Articles 42-44 of the Treaty of Versailles of 1919 laid down that Germany could have no fortification or military establishment of any sort on the left bank of the Rhine and in an area fifty kilometres east from that river. The Peace Treaty signed in 1947 by the Allied Powers and Italy provides that certain territories, [p.709] in particular islands such as Pantelleria, should be demilitarized and remain so; the same Treaty provides that the Dodecanese Islands, ceded by Italy to Greece, should be demilitarized and remain so under the new sovereignty. Annex VIII, Article D, of that Treaty gives a definition of the terms "demilitarization" and "demilitarized". (2)

    2300 In other cases two or more States have agreed to provide in an international treaty that a particular territory should be demilitarized. This occurred, for example, with regard to the Aaland Islands, situated between Sweden and Finland, in the Gulf of Bothnia. It also applies to Antarctica pursuant to the Treaty concluded in Washington on 1 December 1959.

    2301 Finally there is a third category of demilitarized zones: those established following an armistice, which are generally known as "buffer zones". The main objective of such zones is to prevent the adverse armed forces from being in contact, and they are often placed under the authority of an armistice commission, or in some cases, of a peacekeeping force of the United Nations. The best known recent cases are the demilitarized zones in Korea and in the Middle East between Israel and its neighbours.

    2302 It is quite clear that the drafters of Article 60 did not have such zones in mind, even though they provided that demilitarized zones could be created already in time of peace. In fact, such different types of demilitarized zones, created by treaty, as mentioned above, are not created for wartime but for peacetime, or at least for an armistice.

    2303 In fact, this is the essential character of the zones created in Article 60 : they have a humanitarian and not a political aim; they are specially intended to protect the population living there against attacks. Admittedly, there is nothing to prevent a demilitarized zone created by a peace treaty, armistice or any other international agreement, from becoming a demilitarized zone in accordance with Article 60 in the case of armed conflict, provided this is done by means of a new agreement.

    Paragraph 1

    2304 This paragraph contains the basic rules relating to demilitarized zones. In the first place, such zones can only be created by agreement: in other words, a simple unilateral declaration is not sufficient, even if the zone fulfils the other conditions laid down in the article. The prohibition concerns the extension of military operations to such zones. It does not, as in the preceding article ' (Non-defended [p.710] localities), ' refer to attacks. Should this different formulation be seen as an intention to lay down different rules in this field? To answer this question it is necessary to analyze the meaning of the words used. The expression "military operations" should be understood as all movements and activities related to hostilities, carried out by armed forces. The zone of military operations was defined by a mixed Working Group of the Diplomatic Conference in the following way: "in an armed conflict, the territory where the armed forces of the adverse Parties taking a direct or an indirect part in current military operations, are located". (3)

    2305 From the preceding it follows that the Party to the conflict in whose territory the demilitarized zone is located cannot set up military installations there or quarter troops participating in military operations in that zone, nor are such troops allowed to go through the zone. Such activity would be contrary to the very conditions underlying the creation of the zone. IIowever, when the agreement by which the zone is created provides that it will continue to apply even if the adversary reaches the periphery, the latter must restrict itself to establishing a civil administration there without introducing troops or establishments which would be contrary to the nature of the zone. Failing such a provision, the adversary, upon arriving at the periphery of the zone, may at its discretion accept and respect the status of the zone or, on the contrary, make use of it in planning its military operations by quartering troops and setting up installations there.

    2306 In conclusion, it is clear that a prohibition on extending military operations to demilitarized zones includes the prohibition on attacking them and also covers bringing in troops or military installations into such a zone by the belligerent controlling the territory. What happens to the zone in case it changes hands depends on the terms of the agreement by which it was established.

    Paragraph 2

    2307 This paragraph clearly says that the agreement cannot be a tacit one: it requires that a consensus ad idem of the Parties be clearly expressed. The mere notification, when it remains unanswered, is insufficient. However, it must be admitted that in certain urgent cases good faith requires a rapid response. The form of the agreement, the manner in which it is concluded and its contents, are left to the judgment of the Parties to the conflict. The paragraph specifically requires that the geographical limits should be described, and that the methods of supervision should be laid down. Undoubtedly efforts will be made to ensure that the limits of the zone coincide with natural boundaries whenever possible.

    2308 Finally, it is provided that the agreement may be concluded in peacetime. However, it is unlikely that two or more States will agree in advance to keep one or more zones clear of military operations in the event of a conflict breaking out between them: this seems, at least, a rather theoretical point.

    [p.711] 2309 According to the Rapporteur, the article, and in particular, this paragraph, covers not only zones from which military forces have been withdrawn in order to fulfil the conditions laid down by this article and by the agreement establishing the zones, (4) but also those zones where there were no military forces to start with, and which in other respects, too, satisfy the conditions laid down in the article and in the agreement creating the zones. This view seems to be correct.

    Paragraph 3

    2310 The conditions laid down here are almost the same as those for non-defended localities (Article 59 -- ' Non-defended localities, ' paragraph 2), and reference may be made to what was said above in this respect. According to the Rapporteur, the word "normally" in the introductory sentence was introduced to permit the Parties to agree about zones which do not fulfil all the conditions of this paragraph. (5)

    2311 Finally, there is a slight difference from Article 59 ' (Non-defended localities). ' In fact, that article lays down the condition that no activity in support of military operations may be undertaken while the paragraph under consideration here provides that any activity linked to the military effort must have ceased. The language used in Article 60 has a slightly wider scope, and undoubtedly covers those factories which are mainly operating for the armed forces. However, this condition is not absolutely clear and that is why the Parties to the conflict are invited to include in the agreement an interpretation of this condition; such an interpretation may cover different categories of activities; it may also designate by name the businesses or establishments which must cease or modify their production.

    Paragraph 4

    2312 Again reference may be made to what was said with regard to paragraph 3 of Article 59 ' (Non-defended localities), ' which is worded in the same terms. However, the Parties to the conflict are invited to indicate in the agreement they conclude what other categories of persons will be admitted into the demilitarized zone. This will almost always be persons who are particularly weak or deserving of protection, such as children, the elderly, mothers of young children, pregnant women etc. Such a clarification is necesssary, for in principle the zones provided for in this article are primarily concerned with protecting the population residing there and do not constitute places of refuge, as do the safety zones provided for in the Fourth Convention.

    [p.712] Paragraph 5

    2313 This paragraph is identical to paragraph 6 of Article 59 ' (Non-defended localities), ' and we refer to the commentary thereon. (6)

    Paragraph 6

    2314 This paragraph only applies if the Parties to the conflict have provided, in the agreement establishing the zone, that it will remain in existence, even if the adversary takes possession of the territory in which the zone is located. Without such a provision the belligerent occupying the territory surrounding the zone could maintain or abolish it as it wished. If it decides to maintain it, it must notify the adverse Party, which may object.

    Paragraph 7

    2315 It is not often that the Geneva Conventions envisage the consequences which would be incurred by violation of their provisions or of agreements entered into pursuant to the Conventions. Examples in Protocol I are Articles 51 ' (Protection of the civilian population), ' paragraph 8, and Article 77 ' (Protection of children). '

    2316 This is also the case here, where it is provided that a material breach may lead to the end of the demilitarized zone. However, the peaceful population should not suffer because of this. Therefore, although the provision does not say so explicitly, the spirit of the Geneva Conventions requires that prior warning is given whenever possible, in order to allow the Party alleged to have committed the breach, the time to remedy the situation and put an end to the breach.

    2317 It is clear, for it is a humanitarian imperative, that even if the zone loses its status, the adversary will not be exempt from observing the other provisions for protection enjoyed by the civilian population under the Protocol, particularly under Part IV ' (Civilian population) ' and the other rules of international law applicable in armed conflict. The expression "rules of international law applicable in armed conflict" is defined in Article 2 ' (Definitions), ' sub-paragraph (b), and we refer the reader to the commentary thereon.

    2318 However, the fact that a zone is deprived of its privileged status does increase the risks to which the population is exposed in practice. Therefore the adverse Party must take the requisite precautionary measures and remember that "in the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects". (7)

    ' C.P./J.P. '


    NOTES

    (1) [(1) p.708] O.R. XV, p. 287, CDDH/215/Rev.1, para. 110;

    (2) [(2) p.709] This is the definition given in Annex XII, Definitions: D) definition of the terms "demilitarisation" and "demilitarized" "For the purpose of the present Treaty the terms 'demilitarisation' an 'demilitarized' shall be deemed to prohibit, in the territory and territorial waters concerned, all naval, military and military air installations, fortifications and their armaments; artificial military, naval and air obstacles; the basing or the permanent or temporary stationing of military, naval and military air units; military training in any form; and the production of war material. This does not prohibit internal security personnel restricted in number to meeting - tasks of an internal character and equi pped with weapons which can be carried and operated by one person, and the necessary military training of such personnel.";

    (3) [(3) p.710] O.R. XV, p. 338, CDDH/II/266-CDDH/III/255, Annex A;

    (4) [(4) p.711] O.R. XV, p. 287, CDDH/215/Rev.1, para. 110;

    (5) [(5) p.711] Ibid., p. 287, para. 111;

    (6) [(6) p.712] Cf. supra, p. 705;

    (7) [(7) p.712] Art. 57, para. 1;