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Commentary - Precautions against the effects of attacks
    [p.691] Article 58 -- Precautions against the effects of attacks


    [p.692] 2239 This article is a corollary to the numerous articles contained in the Protocol for the benefit of the population of enemy countries. It is not concerned with laying down rules for the conduct to be observed in attacks on territory under the control of the adversary, but with measures which every Power must take in its own territory in favour of its nationals, or in territory under its control.

    2240 Belligerents may expect their adversaries to conduct themselves fully in accordance with their treaty obligations and to respect the civilian population, but they themselves must also cooperate by taking all possible precautions for the benefit of their own population as is in any case in their own interest.

    2241 From the beginning of its work the ICRC has felt the need to lay down provisions for "passive" precautions, apart from active precautions, if the civilian population is to be adequately protected. Article 11 of the 1956 Draft Rules already contained the norms expressed in this provision.

    2242 The experts who convened in 1971 and 1972 (1) generally confirmed that such a provision would be appropriate, and Article 51 of the 1973 draft, with some modifications, has become the present article.

    2243 This article did not give rise to as much discussion during the negotiations as did Article 57 ' (Precautions in attack). ' However, during the final debate several delegations indicated that in the view of their governments, this article should in no way affect the freedom of a State Party to the Protocol to organize its national defence to the best of its ability and in the most effective way. (2)

    2244 Nevertheless, the fact remains that States have subscribed here to a triple duty to act, which must imperatively be translated into instructions to be given, and first of all into measures to be taken already in peacetime, even though, strictly speaking, the article is only addressed to Parties to a conflict. Some of these measures have a preventive or precautionary character since they are concerned with preventing the construction of certain buildings in particular places, or removing objectives from an area where such buildings are located, or otherwise separating the population and their homes from dangerous places. For that matter, as stated above, it is in their own interest that States should take such measures.

    Introductory sentence

    2245 Once again the term "feasible" is used. (3) In fact the Diplomatic Conference often used this expression to illustrate the fact that no one can be required to do the impossible. In this case it is clear that precautions should not go beyond the point where the life of the population would become difficult or even impossible.

    [p.693] 2246 Moreover, a Party to the conflict cannot be expected to arrange its armed forces and installations in such a way as to make them conspicuous to the benefit of the adversary; several delegations raised this point during the discussion of the article. For example, one delegate, while accepting the article, explained his position as follows:

    "With regard to the interpretation of the provision, with particular reference to sub-paragraph (b), it is the understanding of my delegation that this provision does not constitute a restriction on a State's military installations on its own territory. We consider that military facilities necessary for a country's national defence should be decided on the basis of the actual needs and other considerations of that particular country. An attempt to regulate a country's requirements and the fulfilment of those requirements in this connexion would not conform to actualities." (4)

    Sub-paragraph (a)

    2247 It is clear that authorities with a sense of duty will endeavour to remove the civilian population from areas where the risk of attack is greatest. Sometimes only certain categories of the population may be removed in this way: children, mothers, the elderly, the sick etc. Evacuation requires preparatory measures, often taken even in peacetime. Sometimes the whole of the population is evacuated.

    2248 In this field Occupying Powers only have limited freedom and must comply with the provisions of Article 49 of the fourth Convention: imperative military reasons, security of the population, proper accommodation to receive the persons concerned, satisfactory conditions of transfer (hygiene, health, safety, nutrition, members of the same family not separated, the Protecting Power be kept informed). In addition, the Occupying Power may not detain civilians in any area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand. It is conceivable that a Party to the conflict would not wish to jeopardize movement of its own armed forces by allowing civilians to take over the roads and trains.

    2249 As regards civilian objects, it seems clear that moveable objects should be removed whenever possible away from military objectives; thus a food depot intended for the civilian population should not be placed next to a fortified position or other defensive installations. However, the circumstances of war can change very rapidly and a building or installation which does not seem to be of any military interest can quickly become a major military objective. It will be recalled that Article 52 ' (General protection of civilian objects), ' paragraph 2, defines military objectives as:

    [p.694] "objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage".

    2250 Immovable objects cannot be removed and are therefore endangered as a result of being in the vicinity of military objectives; if the persons located there are to be protected, they must be evacuated.

    Sub-paragraph (b)

    2251 This sub-paragraph covers both permanent and mobile objectives. As regards permanent objectives, governments should endeavour to find places away from densely populated areas to site them. These concerns should already be taken into consideration in peacetime. For example, a barracks or a store of military equipment or ammunition should not be built in the middle of a town.

    2252 As regards mobile objectives, care should be taken in particular during the conflict to avoid placing troops, equipment or transports in densely populated areas.

    2253 In both cases it is likely that governments are sufficiently concerned with sparing their own population and that they will therefore act in the best interests of that population.

    2254 In this context we refer briefly to the problem of camouflage. If military objectives located in an urban area are camouflaged, for example, so as to appear to be inoffensive buildings, but the adversary knows that they exist, the danger for the population is increased, particularly because of the incidental damage caused by bombing or artillery fire.

    2255 The provision contained in sub-paragraph (b) is also addressed to Occupying Powers which might be inclined to ignore the fate of the population of the occupied territory and only take into account the fate and the safety of their own troops. It should be recalled that in this respect Article 28 of the fourth Convention prohibits Occupying Powers from using protected persons to shield certain points or areas from military operations. The same provision is contained in much greater detail in Article 51 ' (Protection of the civilian population), ' paragraph 7, of the Protocol.

    2256 Several delegates at the Diplomatic Conference stressed the fact that for densely populated countries this provision was difficult to apply.

    Sub-paragraph (c)

    2257 As regards persons, the other measures that can be taken by a Party to the conflict consist mainly of making available to the civilian population shelters which provide adequate protection against the effects of weapons. In some countries real efforts are made to supply the population with such shelters, both collectively and individually, the latter when every dwelling includes a shelter for [p.695] the occupants. The organization of well-trained civil defence services, adequately equipped, can also alleviate the fate of the civilian population.

    2258 As regards objects, those which are entitled to special protection should be kept in mind, such as monuments, hospitals, works containing dangerous forces, civil defence installations etc. There too the presence of well-trained civil defence services will serve to limit damage, for example, through effective fire-fighting.

    ' C.P./J.P' .


    NOTES

    (1) [(1) p.692] ' CE 1927, Report ', Vol. I, pp. 153-154;

    (2) [(2) p.692] O.R. VI, pp. 213-214, CDDH/SR.42, paras. 55, 57 and 60; pp. 231, 234-235 and 239, ibid., Annex (Italy, Republic of Korea, United Republic of Cameroon);

    (3) [(3) p.692] In French "pratiquement possible". On the meaning of these words, see supra, commentary Art. 57, p. 681;

    (4) [(4) p.693] O.R. VI, pp. 234-235, CDDH/SR.42, Annnex (Republic of Korea). It should be noted here that with regard to Article 58, Austria and Switzerland made similar reservations indicating that because of the term "to the maximum extent feasible", sub-paragraphs (a) and (b) will be applied subject to requirements for the defence of the national territory;