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Commentary - General protection
    [p.737] Article 62 -- General protection


    [p.738] General remarks

    2433 This article has undergone quite a few changes through various drafts put forward prior to the Diplomatic Conference and then during that Conference. In fact, the article as finally adopted is in some respects closer to the draft put before the second session of the Conference of Government Experts in 1972, than to the 1973 draft. Its modification during the Conference resulted to a large extent from an important amendment presented at the beginning of the discussions on civil defence, and later from a second amendment submitted to replace the first. (1)

    ' Title and scope of the article '

    2434 One important point on which the Conference went back to the 1972 draft is the title of this article, and consequently its scope. The 1973 draft was entitled "zones of military operations", with a view to distinguishing, on the one hand, situations where military operations are taking place, including "combat zones" and, on the other hand, occupied territories. (2)

    2435 The discussion in Committee II was concerned first of all with the definition of zones of military operations. Some wished to indicate more precisely that these were zones "where fighting is taking place", and even more specifically, "land" fighting because it was held that "civil defence was essentially land-based". (3) This point was contested by a delegation which pointed out that land areas may be "affected by aerial or naval action". (4)

    2436 However, this proposal was also contested more fundamentally by a delegate who pointed out that occupied territories are also subject to military operations. (5) This observation in particular led Committee II to revert to a general concept of protection, the provisions of this article covering all forms of civil defence, while Article 63 ' (Civil defence in occupied territories), ' which is about occupied territories, does not replace it, but supplements it as far as occupied territories are concerned. (6) However, Article 62 is not concerned with military civil defence units.

    [p.739] ' Military civil defence units '

    2437 In the commentary on the 1973 draft the ICRC included a paragraph on this question, by way of information, which set out the views of some of the experts who had been consulted. (7) The problem was discussed at length during the Conference. As it forms a separate article in the text which was finally adopted (Article 67 -- ' Members of the armed forces and military units assigned to civil defence organizations '), it will be dealt with under the commentary on that article. (8)

    Paragraph 1

    ' First sentence -- Respect and protection '

    2438 Article 61 ' (Definitions and scope) ' defines civil defence organizations, (9) while this paragraph is only concerned with ' civilian ' civil defence organizations. The use of this adjective was closely linked to the introduction of a special article on members of the armed forces and military units.

    2439 The personnel of civil defence organizations is defined above. (10)

    2440 The concepts of respect and protection have also been examined above. (11) Respect and protection are due to civilian civil defence organizations and their personnel "subject to the provisions of this Protocol, particularly the provisions of this Section". As the report of Committee II clearly shows, it was wished to indicate that members of civil defence personnel are firstly "protected as civilians under this Protocol", and as such they are protected in particular by the provisions included in Part IV, Section I; they are then more particularly covered by Articles 61 -66, which therefore supplement, though do not replace, the general provisions (12)

    2441 This reminder of the general protection which members of civilian civil defence organizations enjoy ' as civilians ' means that it was unnecessary to mention that they should not be made the object of attack, or as the 1973 draft in particular recommended, they should not be ' deliberately attacked. ' (13) As mentioned above, the provisions of Part IV, Section I, particularly those of Article 51 ' (Protection of the civilian population), ' are the ones which actually apply in this respect. (14)

    [p.740] ' Second sentence -- Circumscription of activities '

    2442 This sentence grants civil defence organizations and their personnel the right to perform their civil defence tasks. The report of Working Group A stated that this was a "formula, designed to ensure the freedom of civil defence organizations". (15) The expression of this principle is important, particularly in occupied territories. Its implementation in these areas is elaborated in Article 63 ' (Civil defence in occupied territories). ' As regards the relationship between civilian civil defence organizations and the authorities under which they operate, this should not in principle cause any problem, as it is entirely in the authorities' interests for the civil defence tasks to be performed.

    2443 Nevertheless, if there were any disputes, the fact is that these organizations must be "organized or authorized" by such authorities. (16) Thus their "freedom" does not seem to be very great.

    2444 However, this sentence can be seen as an exhortation of such authorities not to arbitrarily refuse the right to perform such tasks to organizations fulfilling the required conditions, nor to arbitrarily withdraw that right from such organizations, particularly when there is an urgent need for them. (17)

    2445 Subject to these remarks, the right can only be withdrawn -- or, more often, curtailed -- in case of "imperative military necessity". (18) This expression is not explained here, but what it amounts to is that such tasks may only be forbidden or curtailed when the authorities are placed before the alternative of either changing major operational plans or doing without civil defence personnel. An example might be works that must be carried out in an area where security cannot be guaranteed because of availability of resources and in the light of imperative operational choices. In such cases the choice must be based on the principles laid down particularly in Articles 51 ' (Protection of the civilian population) ' and 57 ' (Precautions in attack). ' (19)

    2446 Finally, it should be noted that the right of civil defence personnel to perform their civil defence tasks also clearly implies that they will not be interned unless the security of the Occupying Power renders internment absolutely necessary. (20)

    Paragraph 2

    2447 This paragraph is taken from the 1973 draft, (21) with some drafting modifications. For that matter, the idea of protecting those persons performing [p.741] civil defence tasks, outside civil defence organizations, had already been proposed during the second session of the Conference of Government Experts. (22)

    2448 As was stated when the draft article was submitted in Committee II, this paragraph is the "logical corollary" of paragraph 1, as, although it seemed justified "to grant [...] in the first place protection to specialized bodies", the occasional use of persons who do not belong to such organizations should not be prohibited. (23)

    2449 The possibility of appealing to the civilian population in case of need is also laid down in Article 18 of the First Convention and in Article 17 ' (Role of the civilian population and of aid societies) ' of the Protocol. However, it is limited there to collecting the wounded and sick and to caring for them. The present paragraph therefore allows for an extension, where necessary, of the scope of activities performed by the population when an appeal is made to it.

    2450 However, no reference is made, as in Article 18 of the First Convention, to the possibility of the population acting spontaneously. In order to be protected the civil defence action must always be made ' in response to ' an appeal from the "competent authorities" i.e., the authorities which form part of the government established in the territory concerned, and ' under the control ' of those authorities. Thus the special protection does not extend beyond such action. This restriction is understandable, for although spontaneous activity towards the wounded left without care should indisputably be encouraged, civil defence tasks sometimes have a more technical or more ambiguous character, as was shown above in the examination of those tasks. (24) To encourage the civilian population to act spontaneously in the performance of such tasks as, for example, assistance in maintaining public order could lead to delicate or even dangerous situations.

    2451 Nevertheless, in practice it is to be hoped that there will be some flexibility in the implementation of this provision; for example, it would be regrettable to condemn the initiative of a civilian who had succeeded in preventing a fire on a farm.

    2452 However, the requirement that control must be in the hands of the authorities is also a way of reminding the latter of their responsibility in this field, which is, on the one hand, to ensure the proper functioning of civil defence, if necessary with the assistance of the civilian population, and on the other hand, to prevent any abuse: respect for the distinctive sign depends on this.

    Paragraph 3

    2453 Paragraph 3 deals with the protection of buildings and ' matériel ' used for civil defence purposes, and with civil defence shelters.

    [p.742] 2454 The buildings concerned are those accommodating civil defence organizations, i.e., primarily their administrative services, but also the locations for personnel on guard duty, stores for ' matériel, ' garages housing vehicles intended for civil defence etc.

    2455 The ' matériel, ' is that defined in Article 61 ' (Definitions and scope), ' subparagraph (d). (25) What is important is not the type of ' matériel ' but its use for civil defence purposes. As stated by one delegate, (26) this reminder was actually quite unnecessary, since "matériel" materials is defined as such in Article 61 ' (Definitions and scope), ' sub-paragraph (d).

    2456 Finally, the shelters referred to are those serving to protect the civilian population during attacks, particularly air raids. These are covered here, whether or not they are organized and made available by civil defence organizations. (27)

    2457 As regards the respect to which such objects are entitled, the 1973 draft provided that they "shall not be intentionally attacked or destroyed". (28)

    2458 During the second session of the Conference of Government Experts the view was expressed that the prohibition should be limited to "deliberate attacks". (29) In this way it would be prohibited to attack such objects as such, but this would not include incidental damages which they might suffer.

    2459 During the Diplomatic Conference the position of the Chapter on civil defence in Part IV, Section II, of the Protocol was, in particular, put forward as an argument in favour of the idea that reference could simply be made, as regards the protection of such objects, to the article on the general protection of civilian objects, as that article provides a more specific and complete definition of protection. (30) This point of view finally prevailed. Thus civil defence objects are subject to the same rules as other civilian objects, (31) and the efficacy of their protection depends to a large extent on their distance from any military objective. The only "advantage" that these objects have, compared with other civilian objects, is that they can be marked with the distinctive sign of civil defence (provided of course that they are ' exclusively ' assigned to civil defence tasks) (32) and thus be identified as civilian objects with a special right to protection. Moreover, in this respect these objects are comparable to other objects authorized to display a distinctive protective emblem, such as medical objects and cultural objects. In common with medical objects, they also have similar provisions specifying when the right to protection ceases, and how this should be carried out. (33)

    [p.743] 2460 The second sentence of the paragraph addresses a different problem, namely, the right of the authority under whose control the civil defence objects are, to use them for other purposes or to destroy them, and the scope of that right.

    2461 Objects should be understood to mean all that is connected with civil defence, except for personnel, i.e., buildings on the one hand, and ' matériel ' as defined in this Chapter, (34) on the other.

    2462 The right to destroy objects used for civil defence purposes or to divert them from their proper use is only granted to "the Party to which they belong". This clearly shows that the possibility for an Occupying Power to destroy or divert such objects from their proper use is not dealt with, this problem being dealt with in Article 63 ' (Civil defence in occupied territories). ' (35)

    2463 Here the question is in particular to allow the armed forces of a State not to leave to the enemy objects designed for civil defence purposes, but to apply a "scorched earth" policy in this respect, as accepted implicitly in Article 54 ' (Protection of objects indispensable to the survival of the civilian population), ' paragraph 5. (36)

    2464 The delicate question which then arises is if there are any limitations upon this right to destroy objects used for civil defence purposes or to divert them from their proper use. The text adopted by consensus by Committee II (37) restricted this right to cases of "imperative military necessity". Several delegates had stressed the importance of these words, for that matter. (38)

    2465 An amendment submitted at one of the final plenary meetings (39) called for the deletion of the reference "in the case of imperative military necessity". The reason for this amendment was probably a desire not to encroach on national sovereignty in this field. (40)

    2466 Although it cannot be precisely defined, it may nevertheless be assumed that there is a limit on the right of the authorities concerned to destroy objects used for civil defence purposes or to divert them from their proper use.

    2467 The principles of international humanitarian law and the rules on the wounded and sick, which may be referred to by way of analogy, suggest that this limit is exceeded on the one hand, when the destruction or diversion does not fulfil [p.744] imperative military necessity, and on the other hand when, over and above such necessity, it manifestly causes harm to those persons to whose protection the objects should have contributed.

    2468 Thus to use ' matériel ' intended for civil defence purposes for other purposes is not unacceptable -- provided of course that the distinctive sign has been removed -- if the remaining ' matériel ' assigned to civil defence organizations is sufficient for the latter to continue to perform their tasks equally effectively. On the other hand, such use is not acceptable if it prejudices the activities of such organizations. In that case it would also constitute a breach of Article 58 ' (Precautions against the effects of attacks), ' sub-paragraph (c). (41)

    ' Y. S. '


    NOTES

    (1) [(1) p.738] Cf. O.R. III, pp. 251-252, CDDH/II/322, and p. 253, CDDH/II/403 and Add.1;

    (2) [(2) p.738] Cf. ' Commentary Drafts, ' pp. 72-73 (Art. 55). Cf. also ' CE 1972, Report ', Vol. I, p. 167, para. 3.317;

    (3) [(3) p.738] Cf. O.R. III, p. 251, CDDH/II/322, and O.R. XII, pp. 100-101, CDDH/II/SR.63, para. 39; cf. also p. 74, CDDH/II/SR.61, para. 31; p. 112, CDDH/II/SR.64, para. 42; p. 113, para. 47; O.R. XIII, p. 315, CDDH/235/Rev.1, Appendix (Art. 55);

    (4) [(4) p.738] Cf. O.R. XII, p. 106, CDDH/II/SR.64, para. 5; cf. also p. 107, para. 11;

    (5) [(5) p.738] Ibid., p. 70, CDDH/II/SR.61, para. 4;

    (6) [(6) p.738] Cf. O.R. XIII, p. 369, CDDH/406/Rev.1, para. 49;

    (7) [(7) p.739] Cf. ' Commentary Drafts, ' pp. 72-73 (Art. 55);

    (8) [(8) p.739] Cf. infra, p. 791;

    (9) [(9) p.739] Cf. commentary Art. 61, sub-para. (b), supra, pp. 732-735;

    (10) [(10) p.739] Cf. commentary Art. 61, sub-para. (c), supra, pp. 735-736;

    (11) [(11) p.739] Cf. commentary Art. 10, para. 1, supra, p. 146;

    (12) [(12) p.739] Cf. O.R. XIII, p. 367, CDDH/406/Rev.1, para. 46;

    (13) [(13) p.739] Cf. ' CE 1972, Report ', Vol. I, p. 167, para. 3.318; draft, Art. 55, para. 1;

    (14) [(14) p.739] On this subject, cf. in addition O.R. XII, p. 100, CDDH/II/SR.63, para. 36; p. 107, CDDH/II/SR.64, para. 9; p. 113, para. 43;

    (15) [(15) p.740] Ibid., p. 375 CDDH/II/SR.91, para. 19;

    (16) [(16) p.740] Cf. commentary Art. 61, sub-para. (c), supra, pp. 735-736;

    (17) [(17) p.740] However, it is worth noting the remark of one delegate, who considered that this sentence "did not restrict the right of Governments to use personnel belonging to civilian civil defence organizations as they saw fit": O.R. VI, p. 216, CDDH/SR.42, para. 67;

    (18) [(18) p.740] On this subject, cf. commentary Art. 54, para. 5, supra, pp. 658-659;

    (19) [(19) p.740] Cf. supra, pp. 613 and 677;

    (20) [(20) p.740] Cf. Fourth Convention, Art. 42, para. 1;

    (21) [(21) p.740] Cf. draft Art. 55, para. 2;

    (22) [(22) p.741] Cf. particularly CE 1972, Report, Vol. II, p. 94, CE/COM III/OPC 15 (draft Art. 68) and p. 95, CE/COM III/OPC 17 (draft Art. 68);

    (23) [(23) p.741] Cf. O.R. XII, p. 59, CDDH/II/SR.60, para. 32. One delegate even insisted that "it should be possible for any civilian to participate in civil defence activities". Cf. O.R. XII, p. 81, CDDH/II/SR.61 para. 63;

    (24) [(24) p.741] Cf. commentary Art. 61, sub-para. (a), supra, pp. 719-732;

    (25) [(25) p.742] Cf. commentary Art. 61, sub-para. (d), supra, p. 736;

    (26) [(26) p.742] Cf. O.R. XII, p. 375, CDDH/II/SR.91, para. 20;

    (27) [(27) p.742] Cf. commentary Art. 61, sub-para. (a)(iii), supra, pp. 723-724;

    (28) [(28) p.742] Draft Art. 55, para. 3;

    (29) [(29) p.742] Cf. ' CE 1972, Report ', Vol. II, p. 167, para. 3.318;

    (30) [(30) p.742] Cf. O.R. XII, p. 104, CDDH/II/SR.63, paras. 52-53; p. 113, CDDH/II/SR.64, para. 43; p. 375, CDDH/II/SR.91, para. 21;

    (31) [(31) p.742] In this respect cf. particularly commentary Arts. 52, 57-58, supra, pp. 629 and 677;

    (32) [(32) p.742] Cf. commentary Art. 66, para. 1, infra, pp. 780-782;

    (33) [(33) p.742] Cf. particularly Arts. 13 and 65;

    (34) [(34) p.743] Cf. Art. 61, sub-para. (d);

    (35) [(35) p.743] Cf. commentary Art. 63, paras. 4-6, infra, pp. 754-758;

    (36) [(36) p.743] In this sense, cf. O.R. XII, p. 376, CDDH/II/SR.91, para. 25.; pp. 377-378, paras. 35-37;

    (37) [(37) p.743] Cf. O.R. XIII, p. 402, CDDH/406/Rev.1, Annex: Articles adopted by Committee II (Art. 55);

    (38) [(38) p.743] Cf. particularly O.R. XII, p. 378, CDDH/II/SR.91, para. 39;

    (39) [(39) p.743] Cf. O.R. III, p. 253, CDDH/417;

    (40) [(40) p.743] However, this amendment provoked a criticism from one delegation, which pointed out that the result "is that the obligations on behalf of the civilian population with regard to the availability of shelters and the civil defence equipment and matériel have been weakened": O.R. VI, p. 233, CDDH/SR.42, Annex (Netherlands). Another delegation interpreted the deletion differently and considered that "the postulation of military necessity as the sole ground on which an exception could be made would encourage the spirit of militarism"; moreover, it regretted that this possibility of diverting or destroying objects assigned to civil defence should not be limited by other conditions, and stated that "presumably, however , humanitarian aims would be taken into consideration" (ibid., p. 215, CDDH/SR.42, para. 66);

    (41) [(41) p.744] On this subject, cf. supra, pp. 694-695;