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Commentary - Definitions and scope
    [p.717] Article 61 -- Definitions and scope


    [p.718] 2337 Article 61 gives a definition of civil defence, of civil defence organizations and of civil defence personnel and ' matériel. '

    2338 The title of the article was discussed, some considering that it would be better and more precise to limit it to "definitions", while others considered that, on the contrary, the term "scope" encompassed definitions. (1) In fact, these definitions clearly outline the scope of protected civil defence activities, as well as of the protected persons and objects. However, to be precise it should be indicated that the scope of these concepts is clarified by elements which can be found in almost all the other articles of the Chapter.

    2339 Moreover, the definitions as a whole are given "for the purposes of this Protocol", which clearly emphasizes that rights are only granted and duties are only imposed by Protocol I in situations of armed conflict which are covered by [p.719] this instrument, although the creation of civil defence organizations should obviously be encouraged even in peacetime. For that matter, this reference highlights the fact that Articles 61 -67 do not oblige States Parties to the Protocol to change the structure of their civil defence in peacetime, even though it is desirable whenever necessary to adapt such structures to the requirements imposed in time of armed conflict.

    Sub-paragraph (a)

    ' General remarks '

    2340 The 1973 draft had already based the definition of civil defence "on the criterion of the functions exercised". (2) In fact, to define civil defence it was easier to use the tasks as a starting point, rather than the civil defence organizations themselves, given the disparate character of such organizations in different countries. (3) The justification for that approach was repeatedly confirmed during the Diplomatic Conference. (4) In particular it has the advantage of providing for:

    "the possibility that in case of need civil defence functions might be performed by any civilian at the request of the authorities, so that civil defence should not become the monopoly of specialized organizations". (5)

    It was also stressed that this definition, based on functional criteria, was more in accord with the situation existing in many countries which did not have a developed civil defence infrastructure. (6)

    2341 Given this approach, should a non-exhaustive list of the functions of civil defence be included, or, on the contrary, an exhaustive list? The 1973 draft opted for the first solution in including the term "inter alia" at the beginning of the list, thereby indicating that other activities than those mentioned could also fall under the heading of civil defence. (7) This question caused a great deal of controversy during the Diplomatic Conference. (8)

    2342 Those who preferred a non-exhaustive list thought, on the one hand, that the limitation imposed in the definition by making functions subject to an objective indicated in general terms, was sufficient to remove any danger that civil defence would be interpreted too broadly; on the other hand, that laying down an exhaustive list might result in "burning bridges" without being certain that nothing important had been forgotten. A compromise could have been reached [p.720] by deleting the term "inter alia" in the introductory sentence, whilst adding the words "other humanitarian tasks of a similar nature" at the end of the list. (9)

    2343 In the end an exhaustive list was chosen nevertheless. (10) One of the main reasons was the fear that a non-exhaustive list would allow functions to be included which were not specifically of a humanitarian nature and this could compromise all the efforts made to improve the protection of civil defence organizations. This fear was all the more justified, as in many countries the tasks of civil defence organizations include "aspects relating to the economy, defence, supplies and the protection of vital industries", (11) and States cannot be expected to accept protection for the performance of such functions on the same basis as the protection given to the exclusively humanitarian functions of civil defence.

    ' Introductory sentence '

    2344 The introductory sentence confirms that the list that follows is exhaustive. The tasks concerned must be all or some of those mentioned and cannot be any other tasks.

    2345 It is not necessary that all the tasks are performed for civil defence to be said to exist, but it was not accepted that fulfilling only one of the tasks would be sufficient. In fact, this is a hypothetical case which could no longer be described as civil defence, for it is clear that it would inadequately fulfil the aim of civil defence, which is to protect the population against the dangers of hostilities. On the other hand, civil defence organizations may perform only one of the tasks mentioned, (12) provided that other tasks are fulfilled in other ways.

    2346 The tasks listed are defined as being ' humanitarian. ' This is important, since some of the tasks listed may not be exclusively humanitarian, and it is a matter of clearly defining what aspect of the task should be assigned to civil defence, so that this can be unequivocally distinguished from anything which might be considered as a contribution to the war effort, (13) such as air raid warnings, blackout measures or fire-fighting. (14)

    2347 In addition, the tasks must have one of the following aims:

    1) ' To protect the civilian population against the dangers of hostilities or disasters '

    2348 Basically this refers to the preventive tasks comprising the first four points of the list, i.e., warning, evacuation, management of shelters and management of blackout measures. With the exception of the blackout measures, which were not [p.721] mentioned, these tasks were grouped under sub-paragraph (f) of the 1973 draft as examples of preventive measures. (15)

    2349 Protection is to be provided not only against dangers resulting from hostilities (such as bombardments), but also against those resulting from disasters. From the observations made in Working Group A of Committee II, which are set out in the report of that Group, (16) it is clear that the term "disasters" in the introductory sentence should be broadly construed. "It covers natural disasters as well as any other calamity not caused by hostilities." (17) This means, for example, that civil defence tasks related to a tidal wave (natural disaster) or to clouds of gas escaping from a chemical factory (disaster caused by human error) unrelated to hostilities, but occurring in a country involved in armed conflict, are also covered by the provisions of the Protocol. (18) This is entirely logical, but it was appropriate to point out specifically that it was the case.

    2350 In this respect an additional question was discussed, namely, the question whether civil defence tasks should be protected in the case of ' civil strife. ' Unfortunately the debate was not properly structured because it was opened on the basis of a suggestion proposing that the definition of civil defence should be made wider "in order that the greatest measure of civil assistance and welfare measures could be extended to the civilian population in the event of hostilities, civil strife and disaster". (19)

    2351Formulated in this way the suggestion could obviously not be accepted as it exceeded the scope of the Protocol. (20) It was therefore rejected and, moreover, one delegate stated that this point did not come within the scope of Protocol II either, "which specified in Article 1 , paragraph 2, that situations of internal disturbances and tensions were excluded from its material field of application". (21) Various other proposals of this kind (22) led the President to put the matter to a vote, which resulted in a decision not to mention civil strife. (23)

    2352 However, this incorrect approach to the matter should not have any influence on the solution of a real problem: if, during an international armed conflict in the sense of this Protocol, there is internal strife (whether or not related to the armed [p.722] conflict) which result in acts of sabotage leading to desaster, civil defence functions are protected as they are in any other disaster. Common sense, like the text of the Protocol as it was finally adopted, requires an affirmative reply.

    2) ' To help the civilian population to recover from the immediate effects of hostilities or disasters '

    2353 With the exception of the task referred to under sub-paragraph (a)(ixv) -- and without referring to those under sub-paragraph (a)(xiv) -- all other tasks referred to under sub-paragraph (a)(v)-(xiii) have this function.

    2354 The adjective "immediate" emphasizes the fact that civil defence should be restricted to urgent tasks and should not on a long-term basis fulfil functions normally performed by others. (24) Moreover, this restriction, related to the urgency of the tasks, is repeated several times by referring in individual items to emergency action.

    3) ' To provide the conditions necessary for the survival of the civilian population '

    2355 This task has a more specifically preventive character. It covers some of the tasks which have been already mentioned: for example, the provision of shelters is an immediately protective measure, while their management is a measure related to ensure survival or could be seen as a more long-term protective measure. In addition. this task more specifically covers "assistance in the preservation of objects essential for survival" referred to under sub-paragraph (a)(xiv).

    2356 Let us now examine the various tasks which are mentioned:

    ' Sub-paragraph (a)(i) '

    2357 This refers primarily to the warning system implemented in case of air-raids. It may also refer to warning the population and making appropriate recommendations in the case of the approach of enemy army units.

    2358 Characteristically the introductory sentence is of great importance here: the protected task is that of warning ' the civilian population for humanitarian purpose '. This general aim, reiterated in the report of Committee II, was correctly illustrated in that context by the term "warning", which is commented upon here, and which "means warning of the civilian population, in particular with respect to forthcoming attacks or natural disasters". (25) For example, a warning given in a barracks is therefor clearly excluded from this definition.

    [p.723] ' Sub-paragraph (a)(ii) '

    2359 This function was already mentioned in the 1973 draft as a preventive measure. (26) It may consist of organizing and facilitating a necessary evacuation from a dangerous zone and of contributing to carrying it out in as humane a way as possible. The measure may actually be preventive, for example, in the case of a threatened tidal wave, landslide, avalanche, a river about to overflow its banks, or, at a military level, the invasion of enemy troops. However, it may also be necessary after the event, as in the case of the evacuation of an area affected by floods or which has been bombed. In the case of armed conflict the evacuation may also be carried out into safety zones (27) and civil defence can also contribute to the organization of such zones.

    2360 If force has to be used with respect to persons refusing to be evacuated, this does not fall under the competence of civil defence, at least in the first instance (28) However, in this respect it is mainly a question of preventing civil defence organizations from being assigned to carry out decisions which are basically of a political nature. In fact, although evacuation of the population before the advance of enemy troops can have a purely humanitarian motive, particularly when such troops have already shown by their actions that they do not respect civilians, it can also have a political motivation, in which case civil defence organizations should not be involved.

    ' Sub-paragraph (a)(iii) '

    2361 This is the third example of preventive measures given in the 1973 draft. (29)

    2362 Although improvised measures in this field in the case of emergencies cannot be ruled out, and are certainly preferable to no measures being taken, it must be said that the task mentioned here should be prepared well in advance, in principle even in peacetime, if there is to be any real chance of it being effective.

    2363 For that matter the construction and organization of shelters is one of the essential preventive tasks to be performed by civil defence organizations in peacetime in those countries where there is a developed system. On the one hand, this consists of constructing shelters (their construction may be compulsory) able to accommodate the civilian population and protect them from the effects of war and, on the other hand, it consists of making provisions for the organization of such shelters, i.e., the allocation of the population and the provision of supplies essential for the survival of those in shelters.

    2364 However, the question whether shelters should be constructed in peacetime, or how to define the type of construction (e.g., should they be resistant to highly radioactive fall-out?) is more particularly a matter of the internal policies of each [p.724] State and depends on the means available, its priorities and its choice of defence measures.

    ' Sub-paragraph (a)(iv) '

    2365 This preventive measure could also be of benefit to the protection of military personnel or objects, in the same way that a warning could, and to an even greater extent. For this reason reference is only made to the ' management ' of blackout measures, and not to the concept as such. The civil defence task therefore consists of ensuring that civilians observe the blackout measures imposed in order to enhance their own safety, particularly in the case of air raids.

    ' Sub-paragraph (a)(v) '

    2366 This is a typical civil defence task which may take very different forms, depending on the type of rescue to be performed and requires an extensive range of skills. The rescue operation may consist of searching for persons buried under the rubble of buildings destroyed by bombs or in an earthquake, of going to the aid of people who have been marooned through flooding, imprisoned in a building on fire, buried under an avalanche, trapped in contaminated areas... It is difficult to prepare for every type of disaster and the choice obviously depends on local conditions, whether natural (area prone to earthquakes, tidal waves, floods, volcanic eruptions, avalanches etc.) or man-made (agricultural, urban areas, flimsy construction of buildings, inflammable materials, skyscrapers etc.).

    2367 In general rescue operations will be undertaken by teams, including members able to give first aid or even to give spiritual succour to the dying. In some cases this should be done in close collaboration with fire-fighting activities, and should also be coordinated with the formation of medical units to which those in need of medical care can be evacuated.

    2368 Finally, it should be mentioned that effective protection of rescue tasks during armed conflict implies the observation of certain rules in the general conduct of hostilities. For example, the systematic practice of a second wave of bombing following closely on the first, or the use of time bombs would seriously impede or even prevent rescue tasks.

    ' Sub-paragraph (a)(vi) '

    2369 In the "interim report of the Drafting Committee/Working Group on Civil Defence" (30) the proposal was accepted to exclude from the list the task mentioned [p.725] here, but to add the following paragraph: "2. Medical services and assistance including first aid rendered by civil defence bodies and personnel are covered by Part II of Protocol I". (31)

    2370 Nevertheless, this activity was finally included in the list, mainly for the following reason: to enjoy protection, medical personnel protected by Part II of the Protocol must be exclusively assigned to medical purposes. (32) In fact, it frequently happens that persons assigned lo civil defence do not exclusively fulfil medical tasks, but do so in addition to other civil defence tasks. In such cases it is therefore important that they are protected as personnel of civil defence organizations, in the event that they are not already protected as medical personnel. (33)

    2371 The expression "medical services" should be understood in a broad sense and covers both medical transportation and medical care. Even though it most often consists of first aid, it was prudent not to exclude more extensive care, which may prove to be necessary 'in situ' in some circumstances.

    2372 The question whether reference should also be made to aid for ' military ' wounded was discussed at some length. (34) In fact, the introductory phrase states that the task of civil defence is the protection of only the ' civilian ' population, and it was recalled that this Chapter forms part of Part IV, devoted to the civilian population. (35) However, it is quite clear that civil defence personnel who come across wounded soldiers ought to help them. The very nature of international humanitarian law imposes the duty to respect and protect the wounded and to treat them humanely, in the first instance by providing the medical care required without making any distinction among them founded on any grounds other than medical ones. (36)

    2373 Rather than making an explicit reference in this sub-paragraph to the possibility of giving aid to wounded soldiers, it was preferred to mention it as an act which will not deprive civil defence organizations and their personnel of protection. (37)

    2374 The reference to religious assistance was added, in accordance with an amendment submitted at the fourth session of the Diplomatic Conference. (38) When this amendment was submitted the delegation in question stated in particular that the losses suffered by the civilian population in armed conflict "justified the presence, alongside rescue, medical and first aid personnel, of religious personnel rendering spiritual assistance to the dying and wounded and enjoying proper protection". (39) In addition, one delegation stated that it was not [p.726] its intention "to impose religious civil defence personnel upon States, but merely to ensure that such personnel were respected where they existed". (40)

    ' Sub-paragraph (a)(vii) '

    2375 One has only to think of the terrible bombardments during the Second World War and of so many other bombardments to understand the importance of this task. When fire-fighting is necessary, it is closely related to the task of rescue.

    2376 The importance of the introductory sentence was particularly stressed with regard to this task. In particular as a result of a proposal made in 1972 during the second session of the Conference of Government Experts, (41) the ICRC felt that the commentary on the 1973 draft should point out that

    "in the context of this definition, fire-fighting should provide assistance in rescuing or protecting only civilians and military personnel ' hors de combat, ' and preventing damage to civilian objects". (42)

    2377 This idea was further clarified during the Diplomatic Conference when it was stated that "civil defence personnel could not take advantage of the protection granted it under that chapter in order to put out a fire which was raging, for example, at a military airport". (43)

    2378 However, the distinction between fire-fighting covered by the definition -- and therefore protected -- and fire-fighting which is not covered, is not always an easy one. A fire in a military objective can actually endanger the lives of able-bodied civilians or of wounded soldiers or of civilians who happen to be in the vicinity. In this case, if it is done with a view to protecting such persons, the fire-fighting must be considered to be a civil defence task. (44) On the other hand, persons specifically charged with protecting military objectives from fire cannot claim protection accorded to civil defence tasks.

    ' Sub-paragraph (a)(viii) '

    2379 The French text of the 1973 draft referred to "détection" (45) rather than "repérage", though the meaning is the same, and the same English term "detection" was used in both the draft and the final text of the Protocol. The civil defence task consists of marking danger areas in principle so as to be able to deny access to persons not specifically authorized to enter.

    2380 Such danger may be the direct result of hostilities (bombed or contaminated areas etc.). However, in this respect the interim report of the Drafting Committee [p.727] and the Working Group on civil defence stated that "this sub-paragraph does not cover the detection, marking or removal of minefields during combat operations". (46) This clarification follows from a concern to keep civil defence separate from any activity which has an effect on the development of hostilities. On the other hand, once it is known that an area is mined, there should be no restriction on the initiative of civil defence organizations to prohibit access to such areas to civilians.

    2381 However, the danger existing in some areas may also be the result of events which are not related to the conflict (volcanic areas, unsound buildings following an earthquake, flooding rivers etc.).

    2382 In both cases the function of civil defence with regard to such areas is of a dynamic nature. It must take the initiative in determining which areas are dangerous for the civilian population, analyse the nature of such danger and act accordingly.

    ' Sub-paragraph (a)(ix) '

    2383 This task was not included in the 1973 draft and was introduced in the interim report mentioned above, though it was placed in square brackets, (47) because of the absence of agreement on this subject.

    2384 Finally one delegate explained his reason for opposing any reference to this task, namely because of the fact that "such operations were generally carried out after danger areas had been detected and marked and the population evacuated". (48)

    2385 However, a wider view of the role of civil defence finally prevailed, and led to retaining this task. The preventive character which civil defence also has is emphasized in this way. To take just one example, it is perfectly logical that civil defence should not only be concerned with caring for victims of contaminated water, but also be concerned with decontaminating that water. Decontamination can take various forms (special washing of contaminated persons, purification of water, incineration of contaminated objects etc.) and we will not go into further detail here. The phrase "similar protective measures" allows for some latitude in this task, which is often of paramount importance in time of conflict, to prevent the spread of disease. Measures such as the placing in quarantine of contaminated persons or the banning of certain dangerous products could be included among such measures.

    [p.728] ' Sub-paragraph (a)(x) '

    2386 The reference to this task was included as a result of an amendment. (49) The 1973 draft referred to "emergency material and social assistance" and to "provision of shelters", (50) but it was necessary to make a distinction between the provision of shelters providing temporary protection against danger (particularly air-raid shelters) and more long-term accommodation which may become necessary because of the destruction of dwellings. However, it is quite clear that civil defence can only provide temporary solutions, such as erecting tents or prefabricated buildings. As regards supplies, well-protected stocks of non-perishable foodstuffs should allow civil defence organizations to fulfil the most urgent needs in the event of the destruction or contamination of food or other essential objects. (51)

    ' Sub-paragraph (a)(xi) '

    2387 This activity was mentioned in the 1973 draft in a way that was at the same time more categorical and more restrictive: "maintenance of public order in disaster areas". (52) The draft in fact referred to ' maintenance of order, ' and not only to emergency assistance in the maintenance of order; on the other hand, the draft was restricted to ' disaster areas ' while the task as finally defined was extended to all ' distressed areas. '

    2388 These divergent versions reflect the fact that the reference to this task resulted in a great deal of discussion, which is understandable. It became quite clear from the beginning of these discussions that this task actually requires a clarification of the role of the police in connection with civil defence. (53) It also poses the problem of arming members of civil defence organizations. (54)

    2389 These questions were answered. The present wording was proposed, following an amendment, (55) in order to clarify that Chapter VI does not envisage the protection of the police. (56) As the task of maintaining order undeniably falls under the responsibility of the police, the amendment "therefore referred simply to "assistance", to cover cases where civil defence units assisted the police in keeping public order in disaster areas". (57)

    [p.729] 2390 This question later formed the object of a comprehensive statement in the report of Committee II, (58) which clarifies the meaning to be given to the expression "emergency" by indicating situations where such assistance may take place, and its exceptional character. In addition, it provides an interpretation of the expression "distressed areas", which shows that this can be practically any area in time of armed conflict, and that the criterion whether any assistance should be given is, primarily, the deficiencies of the public administration.

    2391 Of course, the task mentioned is only an example. Assistance in enforcing a prohibition to enter certain danger areas, in the evacuation of such areas, (59) in guarding stores of supplies essential to survival, in the control of distribution thereof, are other examples of activities which may be undertaken under the heading of this sub-paragraph (a)(xi).

    2392 Finally, although the question of arming personnel performing civil defence tasks was broached in the debate occasioned by this sub-paragraph (a)(xi), (60) it was not settled at that time; this was left to later when the present Article 65 ' (Cessation of protection) ' was discussed. (61)

    ' Sub-paragraph (a)(xii) '

    2393 This task was included in the draft in a slightly different form. (62)

    2394 The report of Committee II specified that the expression "public utilities" includes, "inter alia," water control works (e.g., dams, dykes, drainage and discharge canals, outlets, sluices, locks, floodgates and pumping installations)". (63)

    2395 In addition, it should be mentioned that civil defence is limited to emergency repair of indispensable public utilities. Thus it does not have to make good every deficiency of such utilities, but should be limited to essential tasks, for example, if the distribution of drinking water were cut off, or if malfunction of the sewers resulted in the risk of an epidemic.

    2396 This restriction of civil defence to indispensable emergency tasks follows from the concern that it should not go beyond the aim of protecting the civilian population, a concern which also led Committee II to delete "emergency social [p.730] assistance", provided for in the 1973 draft, (64) from the list of civil defence tasks. It was feared in particular that including that item might have increased the range of civil defence tasks too much, as it could even cover services such as unemployment benefit and sick leave, and in doing so would detract from the emergency character which is an essential part of civil defence. (65)

    ' Sub-paragraph (a)(xiii) '

    2397 This task was not explicitly included in the 1973 draft, but may be considered to be part of the "public utilities" mentioned in the preceding sub-paragraph (a)(xii).

    2398 This item was inserted as the result of an amendment. (66) The sponsor of this amendment considered succinctly that there were "compelling humanitarian, aesthetic, customary and hygienic reasons" (67) for its inclusion. The proposal was supported by another delegation (68) and nobody opposed it.

    2399 With regard to this task, it should be noted that any burial (or cremation) of the dead has an urgent character, if only for obvious reasons of hygiene. Thus the reference to the emergency character should be interpreted merely as an intent to emphasize the auxiliary role of civil defence when it performs this activity, which falls under the responsibility of the public administration.

    ' Sub-paragraph (a)(xiv) '

    2400 The 1973 draft called it "safeguard of objects indispensable to the survival of the civilian population", (69) in this way intending to cover the same objects as those mentioned in Article 48 of the draft (the present Article 54 -- ' Protection of objects ' indispensable to the survival of the civilian population), (70) i.e., objects "such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works". (71)

    2401 However, Committee II did not adopt this point of view. Its report indicated that the word "essential" was chosen to avoid confusion with the expression "objects indispensable to the survival" used in Article 48 (the present Article 54 -- ' Protection of objects indispensable to the survival of the civilian population '), and because "it has a broader scope than the term indispensable". (72)

    2402 Thus the intention here was to cover a broader category of objects than that covered by Article 54 ' (Protection of objects indispensable to the survival of the [p.731] civilian population), ' although this is a nuance of little practical importance. Once again common sense must prevail and it is not worth quibbling about whether soap, for example, is essential or indispensable.

    2403 On the other hand, in contrast to the draft, this item refers to "assistance in the preservation", instead of to "safeguard". To some extent this distinction is related to the limits assigned the role of civil defence for the restoration and maintenance of public order. (73) Responsibility for preservation or safeguard as a whole would, in fact, undeniably include a police task. The report of Committee II indicates that "the assistance referred to does not involve guard duties or require the use of weapons". (74)

    ' Sub-paragraph (a)(xv) '

    2404 The last point of the list is to some extent the result of a compromise between those in favour of an exhaustive list and those preferring an illustrative list. (75)

    2405 The list remains exhaustive, but some flexibility is introduced: activities which are not specifically mentioned may be covered, provided they are activities complementary to those in the list, i.e., they must be necessary to carry out any of the tasks listed, and they may not go beyond that.

    2406 These tasks include planning and organization. Thus administrative civil defence activities, such as accounting, payment of salaries, administration of equipment, organization and planning of operations, are clearly covered. This is perfectly logical, as such tasks are also necessary for activity to be effective. For that matter, this is in accordance with provisions regarding hospitals, for example, where administrative personnel enjoy the same protection as medical personnel. (76)

    2407 However, it is further stated that such complementary activities are not limited to planning and organization. This is sensible, for on the one hand, other activities directly related to civil defence also deserve to be protected, such as training of personnel, while on the other hand, activities which apparently have no direct link may become indispensable, such as the installation of an ad hoc lighting system to continue searching for people buried in rubble at night. (77) Yet it is important that such tasks do not extend beyond what is necessary for carrying out any of the primary civil defence tasks.

    2408 The report of Committee II indicales that the expression "mentioned above" relates not only to the list of civil defence tasks, but also to the introductory sentence" of sub-paragraph (a). (78) This observation could lead to some [p.732] confusion, insofar as it might call into question the exhaustive character of the list, if it should be interpreted as allowing any other task which could be classified within the confines of civil defence. (79) However, this is not the case, for the introductory sentence clearly restricts the scope to "the undermentioned humanitarian tasks". This "observation" therefore, on the contrary, confirms that an activity is only covered by sub-paragraph (a)(xv) if it is complementary to a task which is included in the list, on the one hand, and which is in accordance with the introductory sentence of the sub-paragraph, on the other hand. In fact, it has been seen that tasks such as fire-fighting are only partially covered, i.e., when they fulfil the conditions listed in the introductory sentence.

    Sub-paragraph (b)

    2409 This sub-paragraph defines civil defence organizations, although belonging to such an organization is not a necessary condition for protection, (80) as it had been decided to give protection on the basis of function rather than on the basis of membership of an organization. (81)

    2410 The question therefore arises whether there is any point in defining such organizations. One delegate answered this question, stating that it would be justified "to grant [...] in the first place protection to specialized bodies in civil defence tasks, because in the normal case, civil defence functions would be entrusted to specialized civil defence bodies". (82) In addition, to mention such an organization makes it easier to define the material objects (buildings, transports, equipment) on which the civil defence emblem can be placed.

    2411 The expression "establishments and other units" is not very clear in itself. It should be understood in its material sense, for which it can be compared with the definition of medical units; (83) but it should also be understood to cover the institutions themselves, which are covered here irrespective of their legal form and whether they are subject to public or private law. Nevertheless, if they have not been established by the competent authorities of a Party to the conflict, such units must be ' authorized ' by those authorities (organizations which are established by the competent authorities are usually subject to public law).This is important, for as in the case of the use of the red cross or red crescent emblem, the use of the distinctive sign of civil defence thus falls in time of armed conflict under the responsibility of those authorities and they must repress abuse and may withdraw their authorization.

    2412 The organizations concerned may be small or large, particularly as carrying out even one of the tasks listed means that they can be accorded protection. It could also be the civil defence department of an organization which also deals with [p.733] other activities. (84) This obviously raises the question whether there is ' exclusive ' assignment to civil defence tasks.

    2413 In fact, to be recognized as civil defence organizations they must be "assigned and devoted exclusively" to civil defence tasks. This expression requires explanation. Exclusive assignment or devotion does not mean an unlimited assignment in time. Although this is not specified here, it may be of a temporary nature. In fact, the report of Committee II specified that organizations were included:

    "which are assigned and devoted to such tasks only for a limited period, even if that period is a relatively short one, provided, however, that they are assigned or devoted exclusively to those tasks, during that period" (85)

    2414 The system adopted is a combination of the strict requirement of exclusive assignment to civil defence tasks to be entitled to the special protection accorded civil defence, and some flexibility regarding the duration of such assignment.

    2415 Civil defence personnel may therefore be assigned alternately to civil defence tasks and to other tasks, but only on two conditions: on the one hand, such other tasks must not be harmful to the enemy; (86) if they are, such personnel would probably lose the right to protection, even if they once more carried out civil defence tasks; (87) on the other hand, such personnel only enjoy protection -- and the right to use the sign of civil defence -- while they carry out civil defence tasks. As regards buildings, they may only be marked with the distinctive sign if they are exclusively assigned to civil defence tasks, including the complementary tasks mentioned in sub-paragraph (a)(xv).

    2416 In practice, it is not always easy to make this distinction. It is especially at the moment when a mission is assigned that it should be determined whether this mission does or does not fall under the definition of civil defence. In contrast, it is not very realistic to envisage a change in the middle of a task. For example, if a team discovers wounded combatants during an assignment to recover wounded civilians who are buried under the rubble from a building, it will obviously care for those combatants and cannot be expected to remove the civil defence sign. (88) On the other hand, if it is assigned to a task of recovering the wounded buried under the rubble of a barracks, who are all or nearly all combatants, it will not enjoy the protection of the blue triangle. (89)

    2417 A more delicate question arises when a civil defence task can be considered as being harmful to the enemy. In this case there can of course be no question of [p.734] carrying out the task under cover of the protective sign and it should not even be carried out at all, because of the risk of finally losing all right to protection. In borderline cases, particularly in the field of fire-fighting, (90) activities should be undertaken with both common sense and circumspection. Some have recommended that in this respect the principle of proportionality between the military interest in the activity and the humanitarian advantage resulting for civilian victims should be applied. (91)

    2418 This therefore represents a subtly graduated system which can be summarized as follows:

    -- assignment exclusively to civil defence tasks and performing exclusively such tasks: right to special protection;
    -- assignment exclusively to civil defence tasks but occasionally performing other tasks not harmful to the enemy: right to special protection (although the text might be interpreted more restrictively);
    -- temporary assignment to tasks other than civil defence tasks, but which are not harmful to the enemy: no right to special protection during the performance of such other tasks, though there is a right to such protection in case of assignment to civil defence tasks later on;
    -- assignment to tasks harmful to the enemy or performance of tasks which can clearly be identified as being harmful to the enemy: no right to special protection, and probably permanent loss of this right. (92)

    2419 However, this last point requires clarification. An individual devoting himself in turn to civil defence tasks and to activities harmful to the enemy cannot be tolerated, particularly as the only individuals concerned here are civilians; the military assigned to civil defence are governed by a separate article . (93) further the report of Committee II supports this conclusion, since it allows for the possibility of performing tasks covered by sub-paragraph (a) and other tasks in turn, and then again enjoying protection, "provided that these tasks do not constitute acts harmful to the enemy". (94) Thus, the performance of tasks harmful to the enemy should result in the loss of the possibility of enjoying protection under this Chapter for the duration of the conflict. However, it seems justified to allow individuals who, in exceptional cases and in good faith, have performed activities which they had not recognized as being harmful to the enemy, or even permanently demobilized soldiers assigned to civil defence ' as civilians, ' the right to enjoy special protection once again. An amendment relating to this point was indeed proposed. (95) This led to discussions (96) and was not finally adopted but no negative decision was taken as regards its substance. In conclusion, it should be [p.735] pointed out that nothing expressly prohibits this possibility, which must therefore be accepted, as those concerned are indisputably civilians, even though the Third Convention provides for prisoner-of-war treatment for those who have belonged to the armed forces when they are interned by the Occupying Power while in occupied territory. (97)

    2420 Finally, as explained above, more restrictive rules are imposed on members of the armed forces assigned to civil defence, and for them the possibility of a temporary assignment was not adopted. (98)

    Sub-paragraph (c)

    2421 This sub-paragraph defines civil defence personnel, though without specifying that the individuals concerned must belong to civil defence ' organizations '. Thus it is taken for granted that one cannot have an ' assignment ' to civil defence tasks on an individual basis, outside any organization. This is accepted all the more willingly, since on the one hand such organizations are defined in very flexible terms, (99) and on the other hand, the possibility, in case of need, of appealing to the civilian population outside any organization remains open. (100)

    2422 Such personnel must be assigned ' exclusively ' (101) to the performance of civil defence tasks, and must be so assigned by the Party to the conflict concerned. (102)

    2423 The inclusion of the fact that persons assigned exclusively to the ' administration ' of these civil defence organizations are also covered is superfluous. However, it does remove any possible ambiguity about administration being included in the complementary activities mentioned under sub-paragraph (a)(xv). The term "administration" should be understood in a broad sense to include all activities necessary for the running of civil defence organizations and the maintenance of their buildings and materials. However, here again, the assignment of such buildings and materials must be exclusive.

    2424 Apart from this, the difference between the terms "Party to the conflict" and "competent authority of that Party" is without legal significance.

    2425 Finally, as regards the relationship between personnel covered here and personnel in occupied territory covered by Article 63 of the fourth Convention, the remark made in the report of Committee II is worthy of note:

    "The definition of civil defence organizations in this article in no way deprives individuals carrying out civil defence tasks of their rights under this Chapter, so long as they are part of, or under contract to, an organization of [p.736] the type referred to in Article 63 of the fourth Geneva Convention of 1949; and there is no need for them to belong to or be embodied in a formal unit." (103)

    Sub-paragraph (d)

    2426 The term "matériel" defined here should be understood in a broader sense than in the first Convention, where it is distinguished from transports. (104)

    2427 In this instance it covers equipment, i.e., the boots and helmets of persons assigned to fire-fighting activities, as well as bookkeepers' calculators; supplies, i.e., all food supplies, stocks of medicines, clothing etc.; and land, water and air transports of any sort. (105)

    2428 However, to fall under the definition, such equipment, supplies and transports must, of course, be used "for the performance of the tasks mentioned under sub-paragraph (a)". The term ' exclusively ' is not mentioned here, but it is clear that the distinctive sign of civil defence must only be used to identify such ' matériel ' while it is exclusively assigned to such tasks. For example, a vehicle must not be assigned to any task that is not covered, even if it does not constitute an act that is harmful to the enemy under Article 65 ' (Cessation of protection), ' unless all traces of the distinctive sign have first been removed.

    2429 On this subject it should be noted that the sponsors of one amendment proposed the exclusion of air transport by mentioning only "vehicles and watercraft", (106) because they were afraid that rules regarding air transport would meet with difficulties, and because "civil defence was essentially land-based". (107)

    2430 However, this proposal, which was supported by various delegations, (108) was not adopted because, as one delegate stated, there are mountainous regions "where emergency aid could be sent only by air" (109)

    2431 Finally, it should be mentioned that a proposal was made to also mention protection of "the means of communication" used by civil defence. (110)

    2432 This proposal was not adopted either. One delegate considered in particular that the obligation to protect civil defence means of communication could encourage abuse. (111) However, it is to be hoped that everything will be done to facilitate their functioning, which is often essential for the effective performance of civil defence tasks.

    ' Y.S. '


    NOTES

    (1) [(1) p.718] Cf. in particular O.R. XII, pp. 88-91, CDDH/II/SR.62, paras. 20, 22, 27, 29 and 35;

    (2) [(2) p.719] ' Commentary Drafts, ' pp. 71-72 (Art. 54);

    (3) [(3) p.719] Cf. O.R. XI, p. 578, CDDH/II/SR.51, para. 4;

    (4) [(4) p.719] Cf. in particular O.R. XII, p. 58, CDDH/II/SR.60, para. 29; p. 65, para. 59; p. 77, CDDH/II/ SR.61, paras. 44 and 47;

    (5) [(5) p.719] Ibid., p. 58, CDDH/II/SR.60, para. 29;

    (6) [(6) p.719] Cf. ibid., p. 77, CDDH/II/SR.61, para. 44;

    (7) [(7) p.719] Cf. Art. 54 of the draft;

    (8) [(8) p.719] On this subject, cf. particularly O.R. XII, pp. 58-59 and 63, CDDH/II/SR.60, paras. 30 and 51; p. 82, CDDH/II/SR.61, paras. 70-71, 76; pp. 86-90, CDDH/II/SR.62, paras. 7-13, 18, 23-25, 33;

    (9) [(9) p.720] Cf. O.R. III, p. 246, CDDH/II/344;

    (10) [(10) p.720] However, see commentary sub-para. (a)(xv), infra, pp. 731-732;

    (11) [(11) p.720] O.R. XII, p. 63, CDDH/II/SR.60, para. 51; cf. also p. 78, CDDH/II/SR.61, para. 53;

    (12) [(12) p.720] Cf. commentary sub-para. (b), infra, p. 732;

    (13) [(13) p.720] In this sense, cf. particularly O.R. XII, p. 63, CDDH/II/SR.60, para. 51; p. 79, CDDH/II/ SR.61,para.54;

    (14) [(14) p.720] Cf. commentary sub-para (a)(i), (iv) and (vii), infra, pp. 722, 724 and 726;

    (15) [(15) p.721] Cf. ' Commentary Drafts, ' pp. 71-72 (Art. 54). A link is also to be made between the tasks which flow from this obligation and those imposed by Article 58, sub-para. (c);

    (16) [(16) p.721] The Rapporteur of the Working Group stated on this subject that these observations constituted "a part of the preparatory work for the draft articles and should be taken into account when interpreting the texts", O.R. XII, p. 373, CDDH/II/SR.91, para. 3. As these observations were included in the report of Committee II at the end of the fourth session of the Diplomatic Conference, we will only refer below to that report;

    (17) [(17) p.721] O.R. XIII, p. 364, CDDH/406/Rev.1, para. 41;

    (18) [(18) p.721] On this subject, cf. particularly O.R. XI, p. 578, CDDH/II/SR.51, para. 7; O.R. XII, p. 58, CDDH/II/SR/60, para. 29; p. 74, CDDH/II/SR.61, para. 27; p. 76, para. 42; p. 95, CDDH/II/ SR.63, para. 2;

    (19) [(19) p.721] O.R. XII, p. 81, CDDH/II/SR.61, para. 63;

    (20) [(20) p.721] Cf. Article 1, paras. 3-4, and the commentary thereon, supra, pp. 39-56;

    (21) [(21) p.721] O.R. XII, p. 82, CDDH/II/SR.61, para. 74;

    (22) [(22) p.721] Cf. particularly ibid., p. 83, CDDH/II/SR.61, paras. 77-78; pp. 88 and 90, CDDH/II/SR.62, paras. 21 and 31;

    (23) [(23) p.721] Ibid., p. 92, CDDH/II/SR.62, para. 46; the amendment was rejected by 43 votes to 1, with 12 abstentions;

    (24) [(24) p.722] In this sense, cf. particularly O.R. XI, p. 579, CDDH/II/SR.51. 10; O.R. XII, p. 71, CDDH/II/SR.61, para. 13; pp. 92-93, CDDH/II/SR.62, paras. 48 and 50;

    (25) [(25) p.722] O.R. XIII, p. 364, CDDH/406/Rev.1, para.41;

    (26) [(26) p.723] Cf. ' Commentary Drafts, ' pp. 71-72 (Art. 54);

    (27) [(27) p.723] Cf. in particular Fourth Convention, Article 14 (Hospital and safety zones and localities) and Annex I (Draft agreement relating to hospital and safety zones and localities);

    (28) [(28) p.723] Cf. however, commentary sub-para. (a)(xi), infra, pp. 728-729;

    (29) [(29) p.723] Cf. ' Commentary Drafts, ' pp. 71-72 (Art. 54);

    (30) [(30) p.724] The report is reproduced as an Annex to the report drawn up by Committee II at the end of the third session of the Diplomatic Conference: O.R. XIII, pp. 309-314, CDDH/235/Rev.1, Annex II;

    (31) [(31) p.725] Ibid., p. 312 (Art. 54, para. 2);

    (32) [(32) p.725] Cf. Art. 8, sub-para. (c), and the commentary thereon, supra, pp. 124-127;

    (33) [(33) p.725] In this sense, cf. M. Bothe, K.J. Partsch, W.A. Solf, op. cit., p. 395, para. 2.2.2.1. As regards the identification of such personnel, cf. commentary Art. 66, para. 9, intra, pp. 788-789;

    (34) [(34) p.725] O.R. XII, pp. 96-99, CDDH/II/SR.63, paras. 7, 17, 22, 27-28;

    (35) [(35) p.725] Cf. ibid., p. 99, para. 28;

    (36) [(36) p.725] Cf. particularly Art. 10, para. 2;

    (37) [(37) p.725] Cf. commentary Art. 65, para. 2(c), infra, p. 774;

    (38) [(38) p.725] Cf. O.R. III, p. 248, CDDH/II/413;

    (39) [(39) p.725] O.R. XII, p. 322, CDDH/II/SR.85, para. 6;

    (40) [(40) p.726] Ibid., p. 323, para. 8;

    (41) [(41) p.726] Cf. ' CE 1972, Report ', Vol. II, p. 93, CE/COM III/OPC 8;

    (42) [(42) p.726] ' Commentary Drafts, ' p. 72 (Art. 54, sub-para. (a));

    (43) [(43) p.726] O.R. XII, p. 58, CDDH/II/SR.60, para. 30;

    (44) [(44) p.726] In this sense, cf. E. Schultz, op. cit., p. 12;

    (45) [(45) p.726] Cf. draft Art. 54, sub-para. (g);

    (46) [(46) p.727] O.R. XIII, p. 310, CDDH/235/Rev.1, Annex II, para. 8;

    (47) [(47) p.727] Ibid., p. 312 (Art. 54, sub-para (g));

    (48) [(48) p.727] O.R. XII, p. 324, CDDH/II/SR.85, para. 10;

    (49) [(49) p.728] O.R. III, p. 247, CDDH/II/402 (Art. 54 (g)(iii), cf. also p. 249, CDDH/II/414 (Art. 54 (h));

    (50) [(50) p.728] Draft Art. 54, sub-paras. (c) and (f);

    (51) [(51) p.728] On this concept, cf. sub-para. (a)(xiv), infra, pp. 730-731;

    (52) [(52) p.728] Cf. draft Art. 54, sub-para. (e);

    (53) [(53) p.728] Cf. O.R. XI, p. 586, CDDH/II/SR.51, para. 46;

    (54) [(54) p.728] Cf. O.R. XII, pp. 58-59, CDDH/II/SR.60, para. 30;

    (55) [(55) p.728] O.R. III, p. 246, CDDH/II/344, para. 2;

    (56) [(56) p.728] Cf. O.R. XII, p. 63, CDDH/II/SR.60, para. 52;

    (57) [(57) p.728] Ibid.; cf. also p. 65, para. 59; p. 76, CDDH/II/SR.61, para. 42; p. 93, CDDH/II/SR.62, para. 52; p. 95, CDDH/II/SR.63, para. 3; pp. 96-97, paras. 8-11;

    (58) [(58) p.729] This stresses that "nothing in the definition of civil defence alters the position of the civil police, who are protected as civilians. Ordinary police functions are not civil defence functions. But in distressed areas, that is areas stricken by hostilities or disasters, where the normal functioning of public administration has broken down, civil defence organizations may, as an exceptional measure, assist also in the maintenance of order. Such assistance may include the direction of movements of refugees within or from distressed areas": O.R. XIII, p. 364, CDDH/ 406/Rev.1, para. 41;

    (59) [(59) p.729] Cf. E. Schultz, op. cit., p. 13;

    (60) [(60) p.729] Cf. particularly O.R. XII, pp. 58-59, CDDH/II/SR.60, para. 30, and p. 93, CDDH/II/SR.62, para. 52;

    (61) [(61) p.729] Cf. commentary Art. 65, para. 3, infra, pp. 774-778;

    (62) [(62) p.729] "Emergency repair of public services indispensable to the civilian population" (draft Art. 54, sub-para.(d));

    (63) [(63) p.729] O.R. XIII, p. 364, CDDH/406/Rev.1, para. 41. Moreover, cf. the expression "public utility services" used in Article 51 (Enlistment, labour), paragraph 2, of the Fourth Convention. For the meaning of this expression, cf. ' Commentary IV, ' p. 295;

    (64) [(64) p.730] Cf. Art. 54, sub-para.(c), of the draft;

    (65) [(65) p.730] Cf. O.R. XIII, p. 92, CDDH/II/SR.62, paras. 47-48. However, see also p. 81, CDDH/II/ SR.61, paras. 63 and 66, as well as p. 90, CDDH/II/SR.62, para. 32;

    (66) [(66) p.730] Cf. O.R. III, p. 244, CDDH/II/44, para. 2. Cf. also Art. 34, para. 1;

    (67) [(67) p.730] O.R. XII, p. 81, CDDH/II/SR.61, para. 65;

    (68) [(68) p.730] Ibid., p. 82, para. 73;

    (69) [(69) p.730] Art. 54, sub-para. (b), of the draft;

    (70) [(70) p.730] Cf. ' Commentary Drafts, ' p. 71 (Art. 54, sub-para. (b));

    (71) [(71) p.730] Cf. Art. 54, para. 2, Protocol I;

    (72) [(72) p.730] O.R. XIII, p. 365, CDDH/406/Rev.1, para. 41. Cf. also commentary Art. 54, supra, pp. 652-653;

    (73) [(73) p.731] Cf. commentary sub-para. (a)(xi), supra, pp. 728-729;

    (74) [(74) p.731] O.R. XIII, p. 365, CDDH/406/Rev.1, para. 41. Moreover, an example is given to illustrate the type of assistance concerned: the temporary repair of an agricultural silo;

    (75) [(75) p.731] On this subject, cf. supra, pp. 719-720 and note 8;

    (76) [(76) p.731] Cf. in particular Fourth Convention, Art. 20;

    (77) [(77) p.731] In this sense, cf. E. Schultz, op. cit., pp. 13-14; M. Bothe, W.A. Solf, K.J. Partsch, op. cit., pp. 396-397;

    (78) [(78) p.731] O.R. XIII, p. 365, CDDH/406/Rev.1, para. 41;

    (79) [(79) p.732] In the broader sense, cf. also B. Jakovljevic, op. cit., p. 35;

    (80) [(80) p.732] Cf. commentary Art. 62, para. 2, infra, pp. 740-741;

    (81) [(81) p.732] Cf. ad sub-para. (a), supra, p. 719;

    (82) [(82) p.732] O.R. XII p. 59, CDDH/II/SR.60, para. 32;

    (83) [(83) p.732] Cf. Art. 8, sub-para (e), and the commentary thereon, supra, pp. 128-129;

    (84) [(84) p.733] In this sense, cf. M. Bothe, K.J. Partsch, W.A. Solf, op. cit., p. 397, para. 2.2.3;

    (85) [(85) p.733] O.R. XIII, p. 365, CDDH/406/Rev.1., para. 41. On the meaning of exclusive temporary assignment, reference should also be made to the definition given for medical personnel, units and transports: cf. commentary Art. 8, sub-para. (k), supra, pp. 132-133;

    (86) [(86) p.733] On the concept "acts harmful to the enemy", cf. commentary Art. 65, para. 1, infra, p. 770;

    (87) [(87) p.733] On this subject, cf., however, infra;

    (88) [(88) p.733] On this subject, cf., in addition, commentary sub-para. (a)(vi), supra, pp. 724-726;

    (89) [(89) p.733] On the other hand, it should be noted that the protection given to medical services by the distinctive emblem of the red cross or red crescent is of course given for any action for the benefit of the wounded, whether they are military or civilians. Cf. also commentary Art. 66 (Identification), para. 9, infra, pp. 788-789;

    (90) [(90) p.734] On this subject, cf., in addition, commentary sub-para. (a) vii), supra, p. 726;

    (91) [(91) p.734] Cf. M. Bothe, K.J. Partsch, W.A. Solf, op. cit., p. 395. Cf. in addition commentary Art. 65, infra, p. 769;

    (92) [(92) p.734] In this sense, cf. M. Bothe, K.J. Partsch, W.A. Solf, op. cit., p. 397;

    (93) [(93) p.734] Cf. Art. 67;

    (94) [(94) p.734] O.R. XIII, p. 365, CDDH/406/Rev.1, para. 41;

    (95) [(95) p.734] Cf. O.R. III, pp. 263-264, CDDH/II/325, 325/Rev.1, 342;

    (96) [(96) p.734] Cf. in particular O.R. XII, p. 105, CDDH/II/SR.64, para. 2; pp. 110-111, paras. 30-32; pp. 130-131, CDDH/II/SR.66, paras. 25-31;

    (97) [(97) p.735] Cf. Third Convention, Art. 4B(1);

    (98) [(98) p.735] Cf. commentary Art. 67, para. 1(a) and (b), infra, pp. 796-797;

    (99) [(99) p.735] On this subject, cf. commentary sub-para. (b), supra, pp. 732-735;

    (100)[(100) p.735] Cf. Art. 62, para. 2, and the commentary thereon, infra, pp. 740-741;

    (101)[(101) p.735] On the scope of this expression, cf. commentary sub-para. (b), supra, pp. 732-735. The report of Committee II also states that "the word 'exclusively' is used in order to indicate that these personnel, while assigned to civil defence tasks, must not exercise any other functions". O.R. XIII, p. 365, CDDH/406/Rev.1, para. 41;

    (102)[(102) p.735] On this subject, cf. commentary sub-para. (b), supra, pp. 732-733;

    (103)[(103) p.736] O.R. XIII, p. 365, CDDH/406/Rev.1, para. 41;

    (104)[(104) p.736] Cf. Chapters V and VI, First Convention;

    (105)[(105) p.736] On this subject, cf., by analogy, the definition of medical transportation and medical transports with the commentary thereon, Art. 8, sub-paras. (f) and (g), supra, pp. 130-131;

    (106)[(106) p.736] Cf. O.R. III, p. 252, CDDH/II/322, sub-para. (c);

    (107)[(107) p.736] Cf. O.R. XII, p. 101, CDDH/II/SR.63, para. 41;

    (108)[(108) p.736] Cf. in particular ibid.,p. 107, CDDH/II/SR.64, para. 11; p. 111, para. 35; p. 115, para. 56;

    (109)[(109) p.736] Ibid., p. 106, para. 6;

    (110)[(110) p.736] Cf. O.R. III, p. 252, CDDH/II/358;

    (111)[(111) p.736] O.R. XII, p. 109, CDDH/II/SR.64, para. 23;