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Commentary - Cessation of protection
    [p.769] Article 65 -- Cessation of protection


    [p.770] General remarks

    2582 This article aims at establishing the exact limits of the right to protection. In this respect it is very similar to Article 13 of the Protocol ' (Discontinuance of protection of civilian medical units), ' as well as to Article 22 of the First Convention, Article 35 of the Second Convention, and Article 19 of the Fourth Convention.

    2583 Like those articles, Article 65 attempts to achieve this aim by setting out a list of acts which are deemed to be not harmful to the enemy. This list, which is not exhaustive, (1) shows that although the system used in Article 65 is similar to that of the above-mentioned articles, the problems to be solved are very different.

    2584 Paragraph 2 gives three examples, while a whole paragraph is devoted to each of two particularly delicate problems, namely, the bearing of arms by civil defence personnel (paragraph 3) and the organizational structures that civil defence organizations are allowed to take (paragraph 4).

    Paragraph 1 -- Conditions and modalities

    ' First sentence '

    2585 The persons and objects entitled to protection, as well as the right itself, were examined above. (2)

    [p.771] 2586 This right to protection "shall not cease" unless one necessary condition is met. The negative turn of phrase should be noted: this reveals that such a grave measure as the deprivation of protection must retain an exceptional character. Furthermore, even if such measure is taken, its effect will be suspended until a warning has been given and a time-limit has elapsed, giving the recipient of the warning time to obey. (3)

    2587 The condition laid down in this provision is that the persons concerned must have committed, or the objects must have been used to commit "acts harmful to the enemy".

    2588 This expression was contested by some who would have preferred the term "hostile", because of its "more specific" character. (4) It is true that a harmful act can be committed unintentionally and the word "hostile" would have had the advantage of indicating intent to harm. However, Parties engaged in a conflict cannot be expected to allow an act harmful to them to continue indefinitely, even if there is no intent to harm. For this reason, and for the sake of harmonization of the terminology with the Conventions, the suggestion to adopt the expression used there and in Article 13 ' (Discontinuance of protection of civilian medical units) ' was followed. (5)

    2589 The meaning of the expression "harmful act" has been examined before: (6) the term is further clarified in this context by listing acts which are ' not considered as acts harmful ' to the enemy.

    2590 Harmful acts only result in the cessation of protection if they are committed outside the "proper tasks" of civil defence. Article 13 ' (Discontinuance of protection of civilian medical units) ' uses the expression "humanitarian function". The greater precision of the expression in this article can be explained by the fact that civil defence has a more clearly defined role to play and serves only the civilian population, while medical units are intended for assisting all the wounded, whether civilian or military. Moreover, as civil defence has been defined by listing all the tasks that it covers precisely and limitatively, it would have been unduly vague to refer only to the term "humanitarian function".

    2591 The fact remains that in the context of Article 65 , as in that of Article 13 ' (Discontinuance of protection of civilian medical units), ' it will be exceptional for acts harmful to the enemy to be committed in the context of humanitarian activities, and then only incidentally. (7)

    ' Second sentence '

    2592 This sentence is the same as the second sentence of Article 13 ' (Discontinuance of protection of civilian medical units) ', paragraph 1, which was examined above. (8)

    [p.772] Paragraph 2 -- Acts not harmful to the enemy

    2593 This paragraph contains the first three examples of acts which should not be considered as acts harmful to the enemy. Two further examples are given in paragraphs 3 and 4, respectively.

    ' Sub-paragraph (a) '

    2594 The draft referred more briefly to civil defence personnel receiving instructions from military authorities. This question was debated at some length in Committee II, since, as stated in that body, "it was important, in the interests of the personnel involved, to state to what degree they might be permitted to be involved with a military authority". (9)

    2595 Some delegates, insisting that civil defence should not ' be dependent ' on military authorities, (10) considered that "it was undesirable to ensure protection for civil defence personnel taking orders from the military authorities". (11)

    2596 The deletion of this example was even formally proposed in an amendment. (12)

    2597 However, the possibility for military authorities to give instructions to civil defence personnel in some circumstances was defended by many other delegates. (13) The basic argument of those who supported this point of view was the need to co-ordinate the activities of civil defence personnel with those of the military, particularly in areas of military operations where "it was essential to make it clear that on the battlefield the military commander was in charge". (14)

    2598 Thus the importance of having a right to protection in cases of this type was emphasized, (15) and this point of view prevailed.

    2599 However, such instructions and supervision should only take place exceptionally, for if they were permanent, il would amount to genuine ' dependence, ' and the civilian character of the organizations concerned here would be cast in doubt. This distinction between "receiving instructions" from, and being responsible to", military authorities was actually brought out explicitly in the debate: "the idea of dependence evoked an element of permanence, which was absent from the idea of receiving instructions". (16)

    [p.773] ' Sub-paragraph (b) '

    2600 Co-operation of civil defence personnel with military personnel was already provided for in the 1973 draft. On the other hand, attachment of military personnel to civilian civil defence organizations was only added during the Diplomatic Conference.

    2601 In general the discussion on the question of co-operation raised the same arguments as those put forward with regard to sub-paragraph (a).

    2602 Some considered that the "exceptional" character of such co-operation should be specified, as otherwise the protection granted to civil defence personnel might become "illusory". (17) In this sense an amendment explicitly proposed to authorize co-operation only "as an exceptional measure", on the one hand, and only "insofar as such co-operation is indispensable for the protection of the civilian population", on the other. (18)

    2603 Nevertheless, an obligation to ensure that co-operation would remain an exceptional step was rejected, (19) and this idea was dropped. As regards the condition that such co-operation should be indispensable for the protection of the civilian population, this was not adopted either.

    2604 However, it must not be forgotten that by its very definition, civil defence consists of tasks "intended to protect the civilian population", and consequently co-operation could not lawfully be envisaged otherwise.

    2605 The possibility of assigning military personnel to civil defence organizations was introduced in accordance with an amendment. (20) The intention of this amendment was to permit civilian organizations to benefit from the technical expertise of certain specialists difficult to find in time of armed conflict, except in the ranks of military personnel, without losing their civilian character as a result (21)

    2606 On the other hand, a proposal to allow attachment of "military units" (22) was rejected after a vote (23) particularly because this would "completely modify the intent of the paragraph" and cast into doubt the civilian character of these civil defence organizations. (24)

    2607 finally, it should be noted that military personnel assigned to civil defence organizations, while of course losing their status of combatants, nevertheless benefit from prisoner-of-war status if they fall into the power of the adverse Party. (25)

    [p.774] ' Sub-paragraph (c) '

    2608 As noted above, civil defence by definition, concerned with tasks intended to protect the ' civilian population. '

    2609 Therefore tasks with the object of assisting military victims do not fall under this definition and are not covered by this Chapter.

    2610 However, it was important to determine to what extent civil defence personnel could assist military victims without losing their right to protection.

    2611 The 1973 draft stated bluntly that carrying out "their tasks for the benefit of military victims" should not be considered to be harmful to the enemy. (26)

    2612 Although this clause was supported by one delegate, (27) most of the proposals made with regard to this subject during the Conference were concerned with restricting this possibility.(28)

    2613 The wording as adopted very appropriately uses the term "incidentally". This means that if civil defence personnel, during activities undertaken to protect the civilian population, happen to come across military victims, they may assist them at the same time, without losing their right to protection. As regards the wounded, medical personnel of civil defence organizations even have a duty to assist wounded soldiers they find incidentally in the same way as civilians. (29)

    2614 The addition of the expression "particularly those who are ' hors de combat '" is the result of an amendment. (30) This may seem strange at first sight, insofar as a member of the armed forces can in principle ' only ' be a victim if he is ' hors de combat, ' whether he surrenders and becomes a prisoner or whether he is dead, wounded, sick or shipwrecked.

    2615 However, it is a sensible addition as some civil defence tasks can effectively benefit members of the armed forces who are not ' hors de combat. ' for example, the action of civil defence personnel fighting a fire in a town could incidentally be of benefit to some soldiers who happen to be on leave in that town. Thus it was altogether appropriate to specify that such actions indisputably fall under the legitimate scope of civil defence.

    Paragraph 3 -- The bearing of arms

    2616 The question of civil defence personnel bearing arms was the subject of heated discussion in Committee II.

    2617 The draft allowed the bearing of "small-arms" for civil defence personnel, but restricted this to two purposes, namely, maintaining order in a stricken area, and for self-defence. Very divergent opinions were expressed on this subject.

    [p.775] 2618 Some wished to completely prohibit civil defence personnel from bearing arms, as they considered this to be more dangerous than useful. In their view the military will be less inclined to respect personnel they know to be armed and whom they therefore have reason to fear. (31)

    2619 Others considered that bearing arms was useful, if not necessary. However, it was important to establish limits regarding the situations in which arms may be borne, the purposes to be served by bearing arms and the types of arms permitted.

    2620 As regards the situations, the idea of prohibiting arms in areas of military operations was largely supported. (32) However, other delegates considered that this latitude of allowing arms to be carried in some areas and not in others was difficult to apply. For that matter, one delegation asserted that civil defence personnel might just as well be made to contribute to maintain order in combat zones. (33)

    2621 In the end a compromise was achieved by defining the type of weapons authorized in such areas.

    2622 In addition, the fact that civil defence personnel are not entitled to bear arms if they have received an order to disarm, was also raised in the context of this paragraph. (34) However, this question, which could only arise in case of occupation, was dealt with by Article 63 ' (Civil defence in occupied territories), ' paragraph 3. (35)

    2623 With regard to the purpose of bearing arms, some wished to adopt a very general reference: "for the purpose of safeguarding life and property". (36) Others would have preferred a reference based on Article 13 ' (Discontinuance of protection of civilian medical units), ' paragraph 2(a), i.e., confining the purpose of bearing arms to "ensuring their own defence or that of the civilian population for which they are responsible". (37) The idea of going beyond the objective of maintaining order, and likewise permitting weapons for "guarding installations vital for the survival of the civilian population" was also put forward. (38) In the end, after reconsideration, it was decided to return to the functions given for bearing arms in the 1973 draft, with a slight drafting modification. However, as to the purpose of maintaining order, it should be borne in mind that this is an auxiliary function only, to be exercised on a temporary basis. (39)

    [p.776] 2624 As regards the bearing of arms for the purpose of self-defence, this must be understood in the light of the commentary adopted on this subject by Committee II in its report, (40) which reads as follows:

    "On the question of self-defence, it is understood that civil defence personnel may be armed for self-defence against marauders or other criminal individuals or groups. They may not engage in combat against the adverse Party and may not use force to resist capture. If, however, they are unlawfully attacked by individual members of the adverse Party's forces, they may use their weapons in self-defence after having made a reasonable effort to identify themselves as civil defence personnel." (41)

    2625 Finally, as regards the type of weapons that are permitted, these are only "light individual weapons", as for medical personnel. (42) Moreover, it was specifically pointed out that the words "light individual weapons" should be interpreted as in Article 13 . (43)

    2626 Working Group A on civil defence of Committee II decided not to give a definition of this expression. (44) However, one delegate submitted a definition to Committee II, indicating in his own words "what light individual weapons were not, rather than what they were". (45) This definition, "which was agreeable to a number of military experts of other delegations", (46) constitutes a valuable contribution to the definition of this expression. It reads as follows:

    "light individual weapons excludes fragmentation grenades and similar devices, as well as weapons which cannot be fully handled or fired by a single individual, and those basically intended for non-human targets". (47)

    2627 The compromise between, on the one hand, the advocates of not permitting any weapons in any areas or circumstances, or only permitting weapons outside combat areas, and on the other, the advocates of permitting light individual weapons in all areas and circumstances, was resolved by the addition of two sentences to paragraph 3.

    2628 The second sentence imposes a restriction in "areas where land fighting is taking place or is likely to take place". The restriction is logically limited to land [p.777] fighting, for it is indeed with respect to land forces that the weapons of civil defence personnel could pose a problem. However, neither the extent of the "areas" where land fighting is "taking place", nor the way of judging whether such fighting is "likely to take place" in the near future, is defined. A large margin of judgment is thus left to those concerned with this provision. In fact, an objective appraisal reveals that what matters most is to determine the risk of contact with the enemy army, for it is during such contact that protection is essential and that the enemy's trust in civil defence personnel could be shaken by such personnel being too heavily armed, which would anyway lead to confusion. For that matter, the purpose of the prescribed limitation is explicitly mentioned: it is "in order to assist in distinguishing between civil defence personnel and combatants".

    2629 Consequently the weapons of civil defence personnel in areas defined above must be restricted "to handguns, such as pistols or revolvers", an expression which does not require comment. The question is whether the equipment of civil defence personnel could not have been limited to this type of weapons in all circumstances. In particular, the preference expressed by some delegates for the use of weapons "such as tear-gas grenades or the various non-lethal riot-control grenades used by the police" (48) for maintaining order led to the rejection of such a solution.

    2630 The Parties to the conflict must take "the appropriate measures" to restrict the bearing of arms in such areas. For the measures to be <effective in practice, this responsibility should be delegated to the authorities directly responsible for civil defence who should in turn entrust the local authorities with this, or be in a position to contact these authorities immediately.

    2631 The rather vague description of the above-mentioned areas and the purpose of the prescribed restriction on bearing arms -- i. e., to enhance the protection of civil defence personnel -- made it necessary to specify that such a restriction was not a ' condition ' of protection in such areas. This is stated in the third sentence of the paragraph.

    2632 Thus if civil defence personnel carry weapons other than handguns in such areas, they retain their right to respect and protection, provided of course that these are "light individual weapons". Transportation of heavy weaponry would be considered as harmful to the enemy and would therefore result in the personnel concerned losing their right to protection.

    2633 Thus the system applied in this paragraph is fairly similar to that of Article 26 ' (Medical aircraft in contact or similar zones) '. A risk is identified and those at risk are simply cautioned (Article 26 -- ' Medical aircraft in contact or similar zones '), or they are prohibited from taking the risk (Article 65 ), but if they do take it anyway, they nevertheless retain the right to protection.

    2634 Two further clarifications were given by Committee II with regard to paragraph 3. (49) The expression "respected and protected" "means that the personnel must not knowingly be attacked or unnecessarily be prevented from discharging their proper functions". In this respect it was correctly said that the interpretation of [p.778] the term "respected and protected" given here applied only in this context. (50) Moreover:

    "For members of the armed forces assigned (51) to civil defence organizations, the last provision of paragraph 3 does not imply any change in their status as prisoners of war, if they fall into the hands of the adverse party."

    This applies, as we stated above, even though they clearly have lost their combatant status because of their being assigned to civil defence. (52)

    2635 In conclusion, it cannot be denied that paragraph 3 is characteristically a text of compromise, which means that it is rather difficult to apply. Several delegations expressed their fear in explanations of vote after the article was adopted by consensus in Committee II, regarding the efficacy of the protection accorded civil defence personnel if they are armed in combat areas. (53)

    2336 It is clear that bearing arms is something that is merely permitted; there is no obligation to do so, in combat areas or anywhere else. There is nothing that prevents Parties which do not wish their civil defence personnel to bear any arms, from stating so plainly. (54)

    Paragraph 4

    2637 This paragraph was taken, with very slight drafting modifications, from the 1973 draft.

    2638 As one delegate stated, it is justified in particular by the fact that in many countries members of civil defence are given ranks similar to those in the army; its provisions "might evoke military-type discipline and hierarchy, but in no case could that mean that civil defence bodies could be placed under the authority of the military". (55) The question of the relationship between the military authorities and civil defence personnel is in fact dealt with in paragraph 2.

    2639 Another delegate clearly explained the reason for allowing compulsory service: "provision for compulsory civilian service in civil defence units existed in many countries and was entirely divorced from compulsory military service". (56)

    2640 In fact, therefore, this paragraph not only gives another situation which does not deprive personnel of the right to protection, but, more importantly, it recognizes the fact that in many States civil defence structures already in force are in accordance with the provisions of this Chapter.

    ' Y. S. '


    NOTES

    (1) [(1) p.770] In this sense, cf. in particular O.R. VI, p. 230, CDDH/SR.42, Annex (Israel). In the same sense regarding Article 13, cf. commentary Art. 13, supra, p. 173; with regard to the above-mentioned articles of the Conventions, cf. in particular ' Commentary I ', p. 202 (Art. 22);

    (2) [(2) p.770] Cf. commentary Art. 61, sub-paras. (b), (c) and (d), supra, pp. 732-736, and Art. 62, supra, p. 737;

    (3) [(3) p.771] On this subject, cf. commentary Art. 13, para. 1, supra, pp. 175-176;

    (4) [(4) p.771] Cf. O.R. III, p. 265, CDDH/II/70 and O.R. XII, p. 132, CDDH/II/SR. 66, para. 34, and p. 141, CDDH/II/SR. 67, para. 9;

    (5) [(5) p.771] Cf. O.R. XII, p. 136, CDDH/II/SR.66, para. 52;

    (6) [(6) p.771] Cf. commentary Art. 13, para. 1, supra, pp. 174-175;

    (7) [(7) p.771] On this subject, cf. commentary Art. 13, supra, p. 175;

    (8) [(8) p.771] Ibid;

    (9) [(9) p.772] O.R. XI, p. 578, CDDH/II/SR.51, para. 6;

    (10) [(10) p.772] Cf. particularly O.R. XII, p. 67, CDDH/II/SR.60, para. 67; p. 133, CDDH/II/SR.66, para. 42;

    (11) [(11) p.772] Ibid., p. 133, para. 43;

    (12) [(12) p.772] Cf. O.R. III, p. 267, CDDH/II/347;

    (13) [(13) p.772] Cf. particularly O.R. XII, p. 137, CDDH/II/SR.66, para. 58; p. 139, CDDH/II/SR.67, para. 1; p. 140, paras. 3 and 7;

    (14) [(14) p.772] Cf. ibid., p. 139, para. 1;

    (15) [(15) p.772] Cf. ibid., p. 140, para. 7;

    (16) [(16) p.772] Cf. ibid., pp. 141-142, para. 11. In the same sense, cf. in addition commentary para. 4, infra, p. 778;

    (17) [(17) p.773] Cf. O.R. XII, p. 66, CDDH /II/SR.60, para. 63, and p. 134, CDDH/II/SR.66, para. 43;

    (18) [(18) p.773] Cf. O.R. III, p. 267, CDDH/II/347;

    (19) [(19) p.773] Cf. in particular O.R. XII, p. 140, CDDH/II/SR.67, para. 3;

    (20) [(20) p.773] Cf. O.R. III, pp. 268-269, CDDH/II/406 and Add. I;

    (21) [(21) p.773] In this sense, cf. in particular O.R. XII, p. 421, CDDH/II/SR.95, para. 58. In the commentary adopted with the report Committee II, moreover, indicated that only a "relatively small number" of members of the armed forces were concerned: O.R. XIII, p. 373, CDDH/406/ Rev.1, para. 58;

    (22) [(22) p.773] Cf. O.R. XII, p. 420, CDDH/II/SR.95, para. 54;

    (23) [(23) p.773] Ibid., p. 421, para. 60;

    (24) [(24) p.773] Ibid., pp. 420-421, paras. 55-59;

    (25) [(25) p.773] On this subject, cf. Art, 67, paras. 1 and 2. Cf. in addition commentary para. 3, infra, pp. 777-778;

    (26) [(26) p.774] Cf. draft Art. 58, para. 2(d);

    (27) [(27) p.774] Cf. O.R. XII, p. 137, CDDH/II/SR.66, para. 61;

    (28) [(28) p.774] Cf. in particular O.R. III, p. 265, CDDH/II/326; pp. 268-269, CDDH/II/406 and Add. 1; O.R. XII, pp. 134-135, CDDH/II/SR.66, para. 47; p. 139, CDDH/II/SR.67, para. 1; p. 140, para. 3; p. 142, para. 13;

    (29) [(29) p.774] On this subject, cf. in particular Art. 10;

    (30) [(30) p.774] Cf. O.R. III, pp. 265-266, CDDH/II/326;

    (31) [(31) p.775] Cf. particularly O.R. XII, p. 64, CDDH/II/SR.60, para. 55; p. 74, CDDH/II/SR.61, para. 29; p. 79, para. 54; p. 140, CDDH/II/SR.67, paras. 8 and 10;

    (32) [(32) p.775] Cf. O.R. III, pp. 265-266, CDDH/II/320 and 326; O.R. XII, pp. 72-73, CDDH/II/SR.61, para. 21; p. 79, para. 57; p. 132, CDDH/II/SR.66, para. 37; p. 140, CDDH/II/SR.67, para. 6;

    (33) [(33) p.775] Cf. in particular O.R. XII, p. 137, CDDH/II/SR.66, para. 60; p. 142, CDDH/II/SR.67, para. 12;

    (34) [(34) p.775] Cf. O.R. III, pp. 265-266, CDDH/II/326; O.R. XII, p. 132, CDDH/II/SR.66, para. 37;

    (35) [(35) p.775] On this subject, cf. supra, p. 754;

    (36) [(36) p.775] Cf. O.R. III, p. 266, CDDH/II/338;

    (37) [(37) p.775] Cf. ibid., p. 267, CDDH/II/347; O.R. XII, pp. 66-67, CDDH/II/SR.60, para. 66;

    (38) [(38) p.775] Cf. O.R. XII, p. 78, CDDH/II/SR.61, para. 50;

    (39) [(39) p.775] Cf. commentary Art. 61, sub-para. (a) (xi), supra, pp. 728-729;

    (40) [(40) p.776] The commentary on paragraph 3 adopted by Committee II "constituted an agreed interpretation and as such was a 'document related to the treaty' within the meaning of Article 31 para. 2(b) of the Vienna Convention on the Law of Treaties (1969)" : O.R. XII, p. 420, CDDH/II/ SR.95, para. 52. This commentary on paragraph 3 also comprises passages relating to other provisions of this paragraph which are examined below;

    (41) [(41) p.776] O.R. XIII, p. 372, CDDH/406/Rev. 1, para. 58. This commentary itself led to a reaction from one delegation which feared that the possibility opened by the second sentence of this commentary "would subject civil defence personnel to even greater danger": cf. O.R. VI, pp. 222-223, CDDH/ SR.42, Annex (Australia);

    (42) [(42) p.776] Cf. commentary Art. 13, para. 2(a), supra, pp. 177-178;

    (43) [(43) p.776] Cf. O.R. XIII, p. 372, CDDH/406/Rev.1, para. 58. Cf. in addition note 40, supra;

    (44) [(44) p.776] Cf. O.R. XII, p. 421, CDDH /II/SR.95, para. 63;

    (45) [(45) p.776] Ibid;

    (46) [(46) p.776] Cf. O.R. XIII, p. 372, CDDH/406/Rev.1, para. 56. Cf. also O.R. XII, p. 422, CDDH/II/ SR.95, paras. 64-68 and 70;

    (47) [(47) p.776] Cf. O.R. XIII, p. 372, CDDH/406/Rev. 1, para. 56; cf. also O.R. XII, pp. 421-422, CDDH/II/ SR.95, paras. 63-65;

    (48) [(48) p.777] Cf. ibid., p. 422, CDDH/II/SR.95, para. 64;

    (49) [(49) p.777] Cf. O.R. XIII, p. 372, CDDH/406/Rev. 1, para. 58. Cf. also note 40, supra, p. 776;

    (50) [(50) p.778] Cf. O.R. XII, p. 482, CDDH/II/SR.100, para. 64;

    (51) [(51) p.778] The French text of the comment is in Actes (O.R.) XIII. At p. 383, there is an error of grammar relating to the word "affectées" (assigned) which gives the impression that it relates to the "armed forces" rather than the "members". This is clearly incorrect as "assigned" relates to the members of the armed forces;

    (52) [(52) p.778] Cf. commentary para. 2(b), and note 25, supra, p. 773;

    (53) [(53) p.778] Cf. O.R. XII, pp. 427-430, CDDH/SR.96, paras. 1-22;

    (54) [(54) p.778] Article 14, para. 3, of Annex 1 should be noted in this connection. This provides: "If civil defence personnel are permitted to carry light individual weapons, an entry to that effect should be made on the card mentioned.";

    (55) [(55) p.778] O.R. XII, p. 135, CDDH/II/SR.66, para. 49;

    (56) [(56) p.778] Ibid., p. 140, CDDH/II/SR.67, para. 4;