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Commentary - Part IV : Civilian population #Section I -- General protection against effects of hostilities #Chapter V -- Localities and zones under special protection
    [p.697] Part IV, Section I, Chapter V -- Localities and zones under special protection


    2259 It should be noted that the possibility of creating places of refuge, as an option, was already provided for in the Geneva Conventions. Thus Article 23 of the first Convention provides for "hospital zones and localities" for protecting the wounded and sick of the armed forces. In addition, the fourth Convention provides for the establishment of "hospital and safety zones and localities" in order to shelter the civilian sick, children, the elderly etc. Article 15 adds the possibility of establishing "neutralized zones" in regions where fighting is taking place intended to shelter from danger not only the wounded and sick, but also civilians not participating in hostilities. (1)

    2260 The Protocol supplements these provisions with the present Chapter, which comprises two articles dealing with non-defended localities and demilitarized zones, respectively. These are not specifically concerned with sheltering particular categories of the population such as those who are especially vulnerable (the wounded and sick, children etc.) -- although there is nothing to prevent these from being allowed in. The intention is rather to place certain localities or zones with their entire population, apart from combatants, outside the theatre of war, as was already the case with the neutralized zones of the fourth Convention (Article 15 ).

    2261 The reason why the Diplomatic Conference, on the ICRC's initiative, decided to lay down new rules is that the 1949 provisions were not applied in practice as had been the intention. However, the ICRC had achieved various temporary solutions to this effect, in Dacca in 1971, Nicosia in 1974, Saigon and Phnom-Penh in 1975, Nicaragua in 1979 and the Falkland Islands (Malvinas) in 1982. (2)

    2262 Experience has shown that it is very difficult for States to prepare places of refuge already in time of peace, and if they do so, they take care to keep it confidential. In truth the only way in which it is possible to establish protected zones or places of refuge is in the "heat of the moment", i.e., when the fighting comes close and the defence of the particular locality or zone is of no military interest or of relatively minor interest in comparison with the civilian losses which [p.698] might result from a protracted defence. This convinced the ICRC that the creation of a non-defended locality should be possible unilaterally and very rapidly. The Conference followed these proposals to a very large extent, as evidenced by the fact that a declaration of an open city will have effect if it is not immediately contested. This represents an important reaffirmation of and elaboration on customary law. The other achievements of this Chapter are certainly useful, but since they are subject to the agreement of the Parties to the conflict, they have less chance of being put into practice as it is often difficult to conclude agreements once the Parties are actively engaged in hostilities.

    ' C.P./J.P. '


    NOTES

    (1) [(1) p.697] The "Jacquinot zone" established in Shanghai in 1937 and the neutralization by the ICRC of a large hotel in Jerusalem in 1948 have been mentioned as examples of such places of refuge. Commentary IV, pp. 121-124 gives a historical background on places of refuge which it was possible to set up on various occasions with limited degrees of success;

    (2) [(2) p.697] Cf. Y. Sandoz, "Localités et zones sous protection spéciale", a study presented at the Tenth Round Table of the International Institute of Humanitarian Law, San Remo, 1984, in ' Quatre études du droit international humanitaire, ' Geneva, 1985, p. 35; S.-S. Junod, ' Protection of the Victims of Armed Conflict Falkland -- Malvinas Islands..., ' op. cit., pp. 33-34. 698 Protocol I I - Part IV, Section I, Chapter V;