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Commentary - Non-defended localities
    [p.699] Article 59 -- Non-defended localities


    [p.700] Paragraph 1

    2263 This paragraph reiterates almost entirely the rule contained in Article 25 of the Hague Regulations of 1907. (1) Under this paragraph, which confirms and codifies customary law, a locality becomes a non-defended locality whenever the [p.701] conditions laid down in the following paragraphs are met. Unilateral declarations and agreements merely serve to confirm this situation. This is an important difference with the provisions laid down regarding demilitarized zones in Article 60 ' (Demilitarized zones) ' in which the status of such a zone depends on an express agreement.

    2264 Moreover, it should be noted that even if a locality contains military objectives and hostile acts are perpetrated from such objectives, that does not in any way justify the total destruction of the buildings in that locality. In fact, it may be recalled that Article 51 ' (Protection of the civilian population), ' paragraph 5(a), prohibits treating as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects.

    2265 This refers to acts of violence committed by means of projectiles fired from a distance. If the combat is taking place within a city or a town, and there is fighting from house to house, which is frequently the case, it is clear that the situation becomes very different and that any building sheltering combatants becomes a military objective.

    2266 Defended localities include not only fortified towns or those equipped with a fixed defence system, but also localities in or around which troops have taken up position.

    Paragraph 2

    2267 Paragraph 1 lays down the rule, which must be obeyed even in the absence of a declaration or an agreement and the article continues by defining the conditions with which a non-defended locality must comply.

    2268 The introductory sentence lays down two conditions which could just as easily have been included in the list that follows:

    -- the inhabited place must be near or in a zone where armed forces are in contact. The words used are based on a definition given by a special Working Group of the Diplomatic Conference. (2)
    -- the inhabited place must be open for occupation. (3) This condition is essential and all practical steps must be taken in advance to ensure its implementation, such as, for example, opening up road blocks or removing mines. Once the [p.702] declaration of a non-defended locality has been transmitted, it is clearly no longer possible to go back on it without giving sufficient prior warning to the adversary -- otherwise the declaration could be considered as an act of perfidy (see Article 37 -- ' Prohibition of perfidy ').

    2269 It may happen that the circumstances of combat change and that in the end the locality is not occupied by the adversary. However, it will retain its status as long as the declaration is not withdrawn or the adversary does not object.

    2270 The four conditions laid down sub-paragraphs (a)-(d) do not require much comment. The fact that all combatants and military equipment must be evacuated is self-evident. Fixed military installations must not be used for any hostile purpose. Thus refugees may be sheltered in barracks, but military air traffic control stations may not continue to operate.

    2271 It is clear that factories situated in the locality should abstain from manufacturing weapons, ammunition or other objects of military use.

    2272 It is also clear that roads and railways passing through the non-defended locality must not be used for the movement of combatants or military equipment, not even for transit purposes.

    2273 Works containing dangerous forces must not be used in regular, significant and direct support of military operations as this could expose them to attack under the terms of Article 56 ' (Protection of works and installations containing dangerous forces '), paragraph 2.

    2274 Finally, the intention was to prevent the area declared as a non-defended locality from being used as a logistic base by groups of combatants, whether or not in uniform, who would carry out raids and then hide in the locality dressed as civilians.

    2275 Article 59 is silent on the question of overflight of non-defended localities by friendly or enemy aircraft. In the absence of a specific provision it must be accepted that such overflight is possible and does not compromise the status of the non-defended locality.

    Paragraph 3

    2276 This provision refers to certain categories of persons whose presence in the locality will not deprive it of its status. In the first place, this applies to wounded or sick members of the national armed forces and prisoners of war who are being treated in military or civilian medical institutions. Military medical personnel looking after them are also included, as well as chaplains. Medical establishments, whether fixed or mobile, may continue to function wherever they are, even if they belong to the military.

    2277 Special mention should be made of civil defence personnel as defined in Articles 61 -68 amongst the categories of persons enjoying special protection under the Conventions and this Protocol, as well as of civilian medical and religious personnel. Although Article 59 does not mention this explicitly, it is clear that personnel assigned to the protection of cultural objects defined by the Hague Convention of 1954 are also covered by this paragraph.

    2278 As regards police forces left behind in the locality, this can only refer to members of uniformed police units which form part of the armed forces of the [p.703] State as laid down in paragraph 3 of Article 43 ' (Armed-forces). ' In fact the civilian police force falls under the civilian population and therefore does not need to be evacuated when the locality is declared a non-defended locality.

    2279 In many countries the municipal, provincial or national police is purely civilian. In other countries the national police forms part of the armed forces. (4)

    2280 The presence in a non-defended locality of police forces which are part of the armed forces could pose some problems if the locality is occupied; in any case, members of such police forces should refrain from any hostile act. However, the question remains what their status will be when they fall under the control of the adversary. If they are captured, they are entitled to prisoner-of-war status, but in many cases they will be required to continue their function under the Occupying Power. In this respect reference could be made to Article 67 ' (Members of the armed forces and military units assigned to civil defence organizations), ' paragraph 2, which has dealt with the question of military personnel serving in civil defence organizations: they will be considered to be prisoners of war, but in occupied territory they may be employed on civil defence tasks.

    2281 To avoid all problems it would seem preferable to entrust police tasks in a non-defended locality to the municipal police or another purely civilian police corps. In any event the presence of and effective action by a police force are essential in such difficult circumstances to maintain law and order, protect lives and property and, if need be, prevent the locality from being overrun by unauthorized elements.

    Paragraph 4

    2282 The adverse Party must be notified. The use of the word "addressed" was intended to show that a public declaration is not sufficient. Various channels are conceivable: direct transmission by a parlementaire bearing the flag of truce in the actual field of operations, contact through telecommunication, transmission through a Protecting Power, another State not Party to the conflict, intergovernmental organizations such as the United Nations or regional organizations, or alternatively through a humanitarian organization, such as the ICRC.

    ' Who must send the declaration? '

    2283 In principle the declaration must be sent by the authority capable of ensuring compliance with the terms of the declaration. In general this will be the government itself, but it may happen that in difficult circumstances the declaration could come from a local military commander, or even from a local [p.704] civil authority such as a mayor, burgomaster or prefect. Of course, if the declaration comes from a local civil authority, it must be made in full agreement with the military authorities who alone have the means of ensuring that the terms of the declaration are complied with.

    ' Contents of the declaration '

    2284 The paragraph only mentions the geographical limits of the non-defended locality, but other elements can certainly be taken into consideration, such as the time from which the conditions laid down in paragraph 2 will be met. To avoid any misunderstanding it seems preferable to wait until the conditions have been met before making the declaration. If the limits of the locality are visually marked, the declaration must indicate what marking is used, by day and night, for acceptance by the adversary. The same applies for the conditions of supervision.

    ' Obligations of the adverse Party '

    2285 The adverse Party must acknowledge receipt of the declaration. In fact it is necessary for the other Party to know that its declaration has arrived at its destination. Acknowledgement of receipt does not create the protection which is accorded to that locality, but it is an important element of security. At the same time the adverse Party must accord the locality the treatment due to non-defended localities. If the adverse Party considers that the conditions laid down are not fulfilled, it must immediately so inform the Party making the declaration. Any unecessary delay would be contrary to good faith. If it sends a negative response, the adverse Party must indicate the exact points on which the conditions laid down have not been fulfilled, in such a way that those who made the declaration can remedy them, and then make another declaration. In fact, this could also result in negotiations as described in paragraphs 5 and 6. However, it should be noted that the objections of the adverse Party may only relate to the fulfilment of the conditions laid down in paragraph 2. If those conditions are fulfilled, the non-defended locality has the status of a protected locality and the adverse Party cannot impose any other conditions.

    2286 The last part of the paragraph is an appropriate reminder that even in the event that the declaration is validly rejected, the locality continues to enjoy protection under other provisions of the Protocol and other rules of international law applicable in armed conflict. In the first place, there is no doubt that a locality which fulfils the conditions laid down in paragraph 2, but about which a declaration has not been sent, may not be attacked in any way. If some conditions cannot be fulfilled, for example, if it is impossible to remove all military objectives or to put a complete halt to the transit of combatants and military equipment, all the precautions laid down in Articles 50 -57 must be applied. According to Article 51 ' (Protection of the civilian population), ' paragraph 5, the presence of military objectives does not justify a general attack against a locality. If it is considered to be essential from a military point of view to disrupt the lines of communication, [p.705] this must be done, wherever possible, at points where the population is not endangered.

    Paragraph 5

    2287 This paragraph deals with a second case envisaged by this article: the conditions laid down in paragraph 2 are not fulfilled and the Parties to the conflict, possibly after the rejection of a unilateral declaration, conclude an agreement to grant a locality the status of a non-defended locality. No special form is prescribed for such an agreement, but undoubtedly an agreement in writing is preferable; it could be concluded directly in the field by parlementaires negotiating under the flag of truce or at a diplomatic level through the intermediary or on the initiative of Protecting Powers or a humanitarian organization such as the ICRC.

    2288 The principal points of such an agreement should be:

    a) exact geographical limits (generally to be shown on a detailed map);
    b) date and time of entry into force;
    c) duration;
    d) rules on marking the limits and the type of marking to be used;
    e) persons authorized to enter the locality;
    f) if necessary, the methods of supervision;
    g) ultimate fate of the locality, possibly the conditions under which it may be occupied by enemy troops.

    Paragraph 6

    2289 This provision is perfectly clear and requires hardly any comment. It will be recalled that the Draft agreement annexed to the fourth Convention provided that hospital and safety zones should be marked by means of oblique red bands on a white ground, placed on buildings and outer precincts. (5) Paragraph 6 now provides that the signs to be used should be agreed with the adverse Party, though without defining such signs even approximately.

    2290 There is nothing to prevent the Parties to the conflict concerned from adopting the sign laid down in the fourth Convention (oblique red bands on a white ground), but they may also choose another sign.

    2291 It is evident that any signs used must be as visible as possible, even though in the case of non-defended localities the geographical position is known to the adverse Party, which can therefore easily spot them.

    2292 To mark the limits on main roads, flags bearing the colours or coat-of-arms of the town could be used, as this emblem is often readily available. This form of marking is sufficient for armed forces on land who generally depend on what they can see, but it is probably insufficient for the airforce. For the latter, the agreed signs could be painted on the highways at the limits of the locality, on inclined [p.706] panels on the approaches to the locality or on the roofs or courtyards of buildings situated on the perimeter.

    2293 Such signs are relatively efficient for daytime use. At night it is necessary to use other means, and particularly to ensure that there is adequate lighting, at least along the perimeter of the locality. However, the presence of an "island of light" in the middle of the darkness can pose difficult problems of military security and the agreement must deal with this point.

    2294 Finally, it is also possible for the non-defended locality to identify itself by means of the transmission of distinctive radio signals or by electronic means, in the same way as those laid down in Articles 5 -8 of the Regulations annexed to this Protocol (6) for the identification of medical units and transports. There too, an agreement between the Parties to the conflict is required.

    Paragraph 7

    2295 This paragraph seems to be self-evident: if one or more of the conditions laid down in paragraph 2 is not fulfilled, the defended locality loses its status. (7) However, if the zone where armies are in contact becomes further removed from the locality, it does not seem that the status of the locality should be affected, provided that the other conditions continue to be fulfilled.

    2296 The most frequent case is, of course, that in which the locality is occupied by adverse forces; it may be that the adversary decides to allow the locality to retain its character of a non-defended locality. In this situation the adversary's own armed forces should obviously not be installed in the locality, and the adversary should confine itself to setting up a system of administration. It remains to be seen whether the national government will accept the extension of the non-defended locality status. Its decision will no doubt depend on the strict observation by the Occupying Power of the conditions laid down in paragraph 2.

    2297 There is no doubt that when a non-defended locality loses its status, it continues to enjoy protection under other treaty or customary rules. On this subject reference can be made to the definition given in Article 2 ' (Definitions), ' subparagraph (b), of the Protocol, and what was said above on paragraph 4.

    ' C.P./J.P. '


    NOTES

    (1) [(1) p.700] "The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited." (Article 25 of the Hague Regulations of 1907. Cf. also Article 1 of the 1907 Convention Respecting Bombardment by Naval Forces in Time of War, which provides that: "The bombardment by naval forces of undefended ports, towns, villages, dwellings or buildings is forbidden. A place cannot be bombarded solely because automatic submarine contact mines are anchored off the harbour.";

    (2) [(2) p.701] Report of a mixed group, March 1975, cf. O.R. XV, p. 338, CDDH/II/266-CDDH/III/255, Annex A: "' Contact Area ' means, in an armed conflict, that area where the most forward elements of the armed forces of the adverse Parties are in contact with each other.";

    (3) [(3) p.701] (3) The French and Spanish texts of the Protocol, contained in the Final Act, used the word "open" in the feminine form of that adjective ("ouverte" and "abierta"). However, it was the masculine form that was adopted by Committee III (cf. O.R. XV, p. 315, CDDH/215/Rev.1) and the plenary Conference finally adopted it by consensus, without a modification (cf. O.R. VI, p. 214, CDDH/SR.42, para. 62). There is no doubt that in the English version the adjective "open" qualifies "any inhabited place" -- as is only logical. A proposal to correct the error was put forward on 20 January 1981 by the depositary; as the latter did not receive any objections within the prescribed period of 90 days the depositary notified the correction of the authentic French and Spanish texts on 8 May 1981, changing the adjective into its masculine form, "ouvert";

    (4) [(4) p.703] For example, this is the case in Italy with the "carabinieri", in France with the "Gendarmerie nationale" and the "compagnies républicaines de sécurité"; in the Federal Republic of Germany the "Grenzschutztruppen" are under the control of the Minister of the Interior in peacetime, but are transferred to the control of the Minister of Defence in time of armed conflict and therefore become part of the national armed force;

    (5) [(5) p.705] See commentary Art. 56, para. 7, supra, p. 675;

    (6) [(6) p.706] Cf. infra, commentary Annex I, Arts. 5-8, p. 1199;

    (7) [(7) p.706] However, it is recommended that before taking measures against a locality a declaration should be made or reasonable notice should be given with a view to recreating a situation compatible with paragraph 2;