Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 23 : Hospital zones and localities
Text of the provision*
(1) In time of peace, the High Contracting Parties and, after the outbreak of hostilities, the Parties thereto, may establish in their own territory and, if the need arises, in occupied areas, hospital zones and localities so organized as to protect the wounded and sick from the effects of war, as well as the personnel entrusted with the organization and administration of these zones and localities and with the care of the persons therein assembled.
(2) Upon the outbreak and during the course of hostilities, the Parties concerned may conclude agreements on mutual recognition of the hospital zones and localities they have created. They may for this purpose implement the provisions of the Draft Agreement annexed to the present Convention, with such amendments as they may consider necessary.
(3) The Protecting Powers and the International Committee of the Red Cross are invited to lend their good offices in order to facilitate the institution and recognition of these hospital zones and localities.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1884  Article 23 provides for the establishment of hospital zones and localities outside areas where fighting is taking place, in order to enhance the protection of the wounded and sick from the effects of war. Together with safety zones and neutralized zones regulated in Articles 14 and 15 of the Fourth Convention, respectively, Article 23 forms part of a wider system of protected zones laid down in the 1949 Geneva Conventions. This system was further developed in Additional Protocol I, which affords special protection to non-defended localities and demilitarized zones.[1]
1885  International humanitarian treaty law makes provision for hospital zones and localities only in the context of international armed conflict. Parties to a non-international armed conflict wishing to make the protection of the wounded and sick more effective in practice can, however, make Article 23 applicable by means of a special agreement, as provided for in common Article 3(3).[2] Furthermore, the prohibition on directing attacks against zones established to shelter the wounded and sick from the effects of hostilities is part of customary international law, applicable in both international and non-international armed conflicts.[3]
1886  Since its adoption in 1949, Article 23 has not been extensively applied. Practice has shown, however, that Parties to armed conflicts have made use of the general concept of protected zones provided for in the Conventions both in international and non-international conflicts.[4] In December 1991, for example, an agreement declaring the hospital of Osijek and its surroundings ‘a protected zone according to the principles of Article 23 of the First Geneva Convention of 1949 and of Articles 14 and 15 of the Fourth Geneva Convention’ was concluded under the auspices of the ICRC.[5] Although there were some violations, the agreement was generally respected.[6]
1887  Another example of a protected zone was the so-called ‘Red Cross Box’, an area agreed upon by Argentina and the United Kingdom during the 1982 Falklands/Malvinas conflict. Even though protected zones are not mentioned in the Second Convention governing the protection of the wounded, sick and shipwrecked at sea, the Parties made use of the concept to designate an area with a diameter of approximately 20 nautical miles located on the high seas north of the islands to allow hospital ships to hold position and to exchange the wounded.[7]
1888  The system of protected zones under international humanitarian law must be distinguished from the zones established on the basis of UN Security Council resolutions in the 1990s, referred to variously as ‘security zones’, ‘safe corridors’ or ‘safe areas’.[8] These zones were created in response to armed conflicts in which the civilian population had become a systematic target and in which ‘ethnic cleansing’ and genocide were committed.[9] While protected zones under international humanitarian law depend for their establishment and effectiveness on their recognition by the Parties to the conflict, these zones were created without the Parties’ consent, and in some cases, when other cooperative solutions were not forthcoming, were imposed on the Parties on the basis of Chapter VII of the UN Charter.[10]
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B. Historical background
1889  The provision on hospital zones and localities, like the system of protected zones in general, was a new addition to the body of humanitarian treaty law in 1949. However, as early as 1870, six years after the adoption of the very first Geneva Convention, Henry Dunant had suggested the ‘neutralization’ of certain areas for the benefit of wounded soldiers during the Franco-Prussian War. This proposal, which came to nothing owing to rapid military developments, foreshadowed what is today Article 23.[11]
1890  In view of the codification of international humanitarian law around that time focusing on the protection of certain categories of persons based on their personal inviolability, the idea of establishing designated areas to enhance the protection of specific groups receded into the background.[12]
1891  After the First World War the notion of geographically defined protected zones for groups of vulnerable persons – notably wounded and sick soldiers, but also civilians – was revived by various initiatives.[13] These were prompted by new technologies that extended the range of weapons beyond the immediate front, increasingly putting at risk persons protected from the effects of hostilities under international humanitarian law. Following a recommendation by the 16th International Conference of the Red Cross in 1938, a commission of military and legal experts drew up a ‘Draft Convention for the Creation of Hospital Localities and Zones in Wartime’, known as the 1938 Draft.[14] This draft convention, which addressed the issue of protected zones for wounded and sick military personnel, was intended to serve as a basis for the work of the Diplomatic Conference proposed for the beginning of 1940. That Conference, however, was postponed owing to the outbreak of the Second World War.[15]
1892  During the Second World War, the ICRC suggested on several occasions that the Parties to the conflict conclude agreements on protected zones based on the 1938 Draft.[16] The Draft would have been applied by analogy to zones for the protection of certain categories of the civilian population. But although a number of States sent favourable replies to the ICRC, none of them acted upon the suggestion.[17]
1893  In 1945, the ICRC took the 1938 Draft as the basis for its preparatory work for the revision and development of the Geneva Conventions, extending the draft to cover also certain categories of civilians. However, the 1947 Conference of Government Experts showed that States were not inclined to adopt clauses of a mandatory nature in this regard. The most the experts would agree to was that the Geneva Conventions should provide for the optional creation of protected zones. Furthermore, their recognition by the enemy was to be made dependent upon the conclusion of special agreements.[18] The ICRC accordingly drafted two articles for insertion in, respectively, the draft revised 1929 Geneva Convention on the Wounded and Sick and the draft new Convention relative to the Protection of Civilian Persons in Time of War. To encourage the creation of protected zones or localities, it proposed that a draft agreement, which States could use as a model for establishing and recognizing such zones or localities, be annexed to the two Conventions.[19]
1894  In addition, experiences of temporary protected zones, for example in Madrid in 1936, in Shanghai in 1937 and in Jerusalem in 1948, led to the realization of their usefulness in providing shelter for all wounded and sick and for the local civilian population endangered by military operations in the vicinity.[20] The ICRC accordingly prepared an additional draft article for insertion in the draft civilians convention, providing for the setting up of neutralized zones.[21]
1895  The three draft articles, together with the draft agreement, were approved with no fundamental changes by the International Conference of the Red Cross in Stockholm in 1948 and a year later by the Diplomatic Conference as Article 23 of the First Convention (‘Hospital zones and localities’) and as Article 14 (‘Hospital and safety zones and localities’) and Article 15 (‘Neutralized zones’) of the Fourth Convention. The Diplomatic Conference divided the draft agreement, which had previously been common to the First and Fourth Conventions, into two distinct documents: one annexed to the First Convention, and the other annexed to the Fourth Convention.[22]
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C. Paragraph 1: Establishment of hospital zones and localities
1. Circumstances of the establishment of hospital zones and localities
a. In peacetime and after the outbreak of hostilities
1896  Article 23 mentions the possibility of hospital zones and localities being established already ‘in time of peace’ by all ‘High Contracting Parties’. This underlines the importance of preparatory measures taken in peacetime by the States party to the Convention. The many aspects of setting up and managing a hospital zone or locality risk being neglected during the early days of an armed conflict. These aspects should therefore be looked at in detail before hostilities break out, so that the zones can be activated immediately if an armed conflict erupts.
1897  States may be reluctant to set up hospital zones or localities in peacetime because they do not want to see themselves or appear to others as preparing for armed conflict. However, they should consider such preparations as an expression of their general readiness to limit the effects of armed conflict, should it arise. Furthermore, given that hospital zones and localities are intended to be established at some distance from the combat areas, a practical difficulty – apart from potentially the limited availability of suitable areas – may be predicting where exactly the fighting might be taking place. States may therefore make provision for a number of zones or localities, only some of which might be activated during an armed conflict.[23]
1898  Article 23 also envisages the establishment of hospital zones or localities by the Parties to the conflict ‘after the outbreak of hostilities’. The explicit reference to this possibility makes clear that efforts to increase the protection of the wounded and sick in practice should also be made while an armed conflict is ongoing.
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b. Optional nature of hospital zones and localities
1899  Article 23 creates no obligation to set up hospital zones or localities. The article’s use of the word ‘may’ indicates the optional nature of the provision. However, by including it in the First Convention, the drafters wished to draw attention to the humanitarian value of such zones and to recommend they be set up in practice.
1900  The establishment of a hospital zone or locality by a High Contracting Party or a Party to a conflict is initially a unilateral measure that is only binding on the adverse Party once that Party has recognized the zone or locality.[24] This does not mean, however, that in the absence of recognition such zones or localities, or the persons and objects assembled therein, are without protection: the general rules of international humanitarian law apply in any case.[25]
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c. Placement of hospital zones and localities
1901  According to Article 23, hospital zones or localities may be established in a State’s own territory or in occupied areas. There is also the possibility that an Occupying Power finds a pre-existing hospital zone or locality in the territory it occupies. In this respect, the Draft Agreement annexed to the First Convention provides:
In the case of occupation of a territory, the hospital zones therein shall continue to be respected and utilized as such.
Their purpose may, however, be modified by the Occupying Power, on condition that all measures are taken to ensure the safety of the persons accommodated.[26]
1902  Having been approved by States at the 1949 Diplomatic Conference, the Draft Agreement gives useful guidance on various aspects of the creation of hospital zones or localities, even though its provisions are not binding.
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2. Purpose and nature of hospital zones and localities
a. Purpose
1903  The purpose of the hospital zones and localities provided for in Article 23 is to ‘protect’ certain categories of persons ‘from the effects of war’.
1904  This broad wording is intentional. While not apparent from the text of Article 23, hospital zones and localities were envisaged as being placed some distance from the areas where fighting is taking place.[27] They were intended in particular to shelter persons from dangers that may arise from aerial bombardments, long-range artillery fire or missiles launched against military objectives far behind the front, even though dangers arising from fighting close at hand are, of course, also included.[28]
1905  Hospital zones and localities can also help address other effects of armed conflict, such as a shortage of medical supplies or a breakdown of health services. Assembling the wounded and sick in a specially prepared and equipped area facilitates their care and treatment.[29]
1906  It follows from the purpose of hospital zones or localities that they must be respected and protected and that attacks against them are prohibited.[30] This understanding is reflected in Article 11 of the Draft Agreement: ‘In no circumstances may hospital zones be the object of attack. They shall be protected and respected at all times by the Parties to the conflict.’[31]
1907  The prohibition on directing attacks against protected zones also forms part of customary international humanitarian law in respect of both international and non-international armed conflicts.[32]
1908  Violations of hospital zones and localities can have consequences under international criminal law. Attacks on them can fall within the war crime of ‘[i]ntentionally directing attacks against … places where the sick and wounded are collected’.[33] The war crime of ‘[a]ttacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives’ can also be applicable.[34] In addition, attacks against a hospital zone or locality, or the persons or objects sheltered therein, could constitute other war crimes, such as attacks on the civilian population, on civilian objects or on buildings using the distinctive emblems of the Geneva Conventions.[35]
1909  Additional Protocol I explicitly states that ‘making non-defended localities and demilitarized zones the object of attack’ is a grave breach, ‘when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health’.[36]
1910  It should be noted that persons sheltered in hospital zones or localities are not dependent for their protection on the establishment of such zones or localities. All the military or civilian wounded and sick and the persons engaged in their care, as well as civilians not taking a direct part in hostilities, are protected under international humanitarian law and must not be made the object of attack.[37] Hospital zones and localities are merely a concrete means of providing such protection and of making it more effective in practice. The same applies to objects assembled in a protected zone or locality for the benefit of the persons sheltered therein, such as medical units or civilian objects. Thus, the existence of hospital zones or localities must not be construed as entailing a reduction in the protection due to these persons or objects when they are not assembled in a protected zone or locality.[38]
1911  Accordingly, in the event of a protected zone or locality losing its protected character, persons or objects assembled therein continue to benefit from protection under international humanitarian law,[39] unless they fulfil the criteria of a military objective.[40]
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b. Nature
1912  The nature of hospital zones and localities is determined by their purpose. They are to be ‘so organized as to’ fulfil their protective function.
1913  The protective function is to be taken into consideration, for example, when deciding on the size of a proposed hospital zone or locality. In this context, ‘locality’ should be taken to mean a specific place of limited area, generally containing buildings. The term ‘zone’ is used to describe a relatively large area of land and may include one or more localities.
1914  It is a characteristic of protected zones and localities under international humanitarian law that they require recognition as such by the adverse Party.[41] For the adverse Party to be willing to recognize it, the zone or locality will usually need to be ‘demilitarized’, both at the time of the initial recognition and thereafter.[42] The zone or locality must contain no military objectives. This characteristic corresponds to the status of the persons intended for shelter within a protected zone, who are themselves not lawful targets. The Draft Agreement annexed to the First Convention provides guidance on how such demilitarization can be achieved with respect to both persons and objects.[43]
1915  An important implication of the demilitarized character of hospital zones and localities is that they must not be defended militarily.[44] The adverse Party is not prohibited from taking over the zone or locality but remains bound to respect all its obligations towards the protected zone or locality and the persons and objects sheltered therein.[45]
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3. Beneficiaries of hospital zones and localities
1916  The categories of persons who may find shelter in hospital zones or localities are the following:
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a. The wounded and sick
1917  Article 23 does not specify who are the wounded and sick who may be sheltered in a hospital zone or locality. However, the article’s position in the First Convention indicates that they are the wounded and sick of the armed forces or belonging to one of the other categories of persons listed in Article 13.
1918  This reading is confirmed by Article 14 of the Fourth Convention, which also envisages the establishment of protective areas for ‘wounded [and] sick … persons’. Article 14, like Article 23, does not specify who these persons are. However, its placement in Part II of the Fourth Convention, addressing the ‘General protection of populations against certain consequences of war’, indicates that it refers to wounded and sick civilians.[46]
1919  However, the system of protected zones laid down in the Geneva Conventions allows for flexibility. Nothing in the Conventions speaks against a hospital zone or locality providing shelter for both wounded and sick military personnel and civilians. On the contrary, the First Convention provides in Article 22(5) that a medical unit or establishment shall not be deprived of protection if its humanitarian activities extend to the care of wounded and sick civilians. This approach would apply to a hospital zone or locality established by virtue of Article 23.[47] Furthermore, the understanding of the terms ‘wounded’ and ‘sick’ in Additional Protocol I as covering both military and civilian persons may have made the distinction between Article 23 of the First Convention and Article 14 of the Fourth Convention ‘somewhat obsolete even in theoretical terms’.[48]
1920  Admission to a hospital zone or locality must be accorded ‘without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria’. This follows from the prohibition of adverse distinction as expressed in Article 12(2) of the First Convention.[49]
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b. The personnel entrusted with the care of the wounded and sick
1921  Medical personnel protected under the First Convention are entitled to be present in hospital zones and localities.[50]This applies also to personnel exclusively engaged in the administration of medical units and establishments,[51] as well as to religious personnel attached to the armed forces.[52]
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c. The personnel entrusted with the organization and administration of the zones
1922  Depending on the size, complexity and duration of hospital zones and localities, it may be necessary to employ special personnel for their organization and administration, in addition to personnel entrusted with the care of the wounded and sick. It has been noted that:
the expression ‘personnel entrusted with the organization and administration of the zones’ must be taken in a fairly broad sense, to include, for example, the police, the services responsible for preventing the entry into the zone of persons who have no right to reside there, and the fire and passive defence services, as well as members of the Commissions of control provided for in Article 8 of the Draft Agreement.[53]
1923  The inclusion of such personnel ensuring security within a zone or locality, or preventing access of persons not entitled to be present there, must not lead to a – real or perceived – undermining of the demilitarized and non-defended character of the zone or locality. Like any other person present in a hospital zone or locality, such personnel must not engage in acts that might compromise the zone’s or locality’s protected status.[54] Furthermore, in order to avoid any misperception in practice, clear agreement between the Parties to the conflict on the presence of such personnel in the hospital zone or locality is essential.[55]
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d. The local civilian population
1924  Although Article 23 itself makes no mention of this category of persons, they must necessarily be taken into consideration, especially when a hospital zone is of a considerable size.
1925  In this sense, Article 1 of the Draft Agreement expressly provides that:
Hospital zones shall be strictly reserved for the persons named in Article 23 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, and for the personnel entrusted with the organization and administration of these zones and localities and with the care of the persons therein assembled.
Nevertheless, persons whose permanent residence is within such zones shall have the right to stay there.
1926  Like any other person present in a hospital zone or locality, members of the local civilian population must not engage in acts that might lead to the loss of the zone’s or locality’s protected status. In order to avoid any misperception in practice, clear agreement between the Parties to the conflict on the presence of such persons in the zone or locality is essential.
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4. Marking of hospital zones and localities
1927  Article 23 does not address the question of marking. However, insofar as the personnel entrusted with the care of the wounded and sick, as well as the objects used for such care, are entitled to display the distinctive emblem, nothing speaks against the visible demonstration of the zone’s or locality’s protected status by marking it with the distinctive emblem.[56]
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D. Paragraph 2: Recognition of hospital zones and localities
1. Recognition
1928  Hospital zones and localities established in accordance with Article 23(1) will not enjoy protection as a protected area until such time as they have been recognized by the adverse Party.[57]
1929  For such recognition to be obtained, their demilitarized and non-defended character is therefore usually decisive.[58]
1930  Recognition will typically entail the conclusion of an agreement between the Parties to the conflict. While such an agreement can be more or less formal and detailed, in the interest of the effectiveness of the protected zone, it should address, at a minimum, the most relevant points relating to the definition of the zone, the persons to be sheltered therein, and its organization and marking.
1931  Depending on the circumstances, such as the urgency of recognition, the agreement may not necessarily be discussed at government level but by the military authorities on the ground. In that case, the military authorities are regarded as competent to negotiate and to enter into agreements binding on the respective Parties to the conflict.[59] Ideally, in order to ensure that different perspectives are identified and addressed in the agreements, negotiations should include persons of different genders and backgrounds.[60]
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2. Draft agreement relating to hospital zones and localities
1932  With the object of promoting the establishment of hospital zones and localities and to facilitate negotiations, the Diplomatic Conference decided to annex to the First Convention the ‘Draft agreement relating to hospital zones and localities’, which States could use as a model with whatever amendments they considered necessary.
1933  The above analysis of the various elements necessary for setting up an effective hospital zone or locality has shown that the Draft Agreement is a useful guidance tool.[61]
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E. Paragraph 3: Good offices to facilitate the setting up of hospital zones and localities
1934  The establishment and recognition of hospital zones and localities by the Parties to an armed conflict usually call for the availability of a neutral intermediary. In accordance with the general thrust of the Geneva Conventions, it was natural to specifically mention the Protecting Powers and the ICRC in this connection and to invite them to lend their good offices in this matter. This also means that, when they think it advisable, they may themselves take the initiative and put forward proposals to governments. Practice in recent decades has shown that it has indeed often been on the initiative of the ICRC that the concept of protected zones has been put into practice.[62]
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Select bibliography
Bouvier, Antoine, ‘Zones protégées, zones de sécurité et protection de la population civile’, in Katia Boustany and Daniel Dormoy (eds), Perspectives humanitaires entre conflits, droit(s) et action, Bruylant, Brussels, 2002, pp. 251–269.
Bugnion, François, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, pp. 480–484 and 748–762.
Dörmann, Knut, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003, pp. 215–228 and 458–463.
Gasser, Hans-Peter and Dörmann, Knut, ‘Protection of the Civilian Population’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 231–320, at 247–251.
ICRC, ‘Rapport du Comité international de la Croix-Rouge sur le projet de convention pour la création de localités et zones sanitaires en temps de guerre, adopté par la commission d’experts réunie à Genève les 21 et 22 octobre 1938’, reproduced in Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 21, No. 243, March 1939, pp. 161–201.
Report concerning Hospital and Safety Localities and Zones, ICRC, Geneva, 1946.
Hospital Localities and Safety Zones, ICRC, Geneva, 1952.
International Society for Military Law and the Law of War, Questionnaire on the Implementation of international humanitarian law at the national level with special reference to developments of modern warfare, Military Law and Law of War Review, Vol. 28, 1989, pp. 51–308.
Junod, Sylvie S., Protection of the Victims of Armed Conflict, Falkland-Malvinas Islands (1982): International Humanitarian Law and Humanitarian Action, ICRC, Geneva, 1984.
Kleffner, Jann K. ‘Hospital and Safety Zones and Localities; Neutralized Zones’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 347–351.
Landgren, Karin, ‘Safety Zones and International Protection: A Dark Grey Area’, International Journal of Refugee Law, Vol. 7, No. 3, 1995, pp. 436–458.
Lavoyer, Jean-Philippe, ‘International humanitarian law, protected zones and the use of force’, in Wolfgang Biermann and Martin Vadset (eds), UN Peacekeeping in Trouble: Lessons Learned from the Former Yugoslavia, Ashgate, Aldershot, 1998, pp. 262–279.
McDonald, Avril and Brollowski, Hanna, ‘Security zones’, version of April 2011, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://opil.ouplaw.com/home/EPIL.
Rittberg, Jochen Graf von, Schutzzonen für die Zivilbevölkerung, Dissertation, Mainz, 1967.
Ronzitti, Natalino, ‘Protected Areas’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 369–387.
Sandoz, Yves, ‘The establishment of safety zones for persons displaced within their country of origin’, in Najeeb Al-Nauimi and Richard Meese (eds), International Legal Issues Arising under the United Nations Decade of International Law, Martinus Nijhoff Publishers, The Hague, 1995, pp. 899–927.
Sassòli, Marco, Bouvier, Antoine A. and Quintin, Anne, How Does Law Protect in War?, Vol. III, 3rd edition, ICRC, Geneva, 2011, pp. 1713–1717.
Simon, Annette, UN-Schutzzonen – Ein Schutzinstrument für verfolgte Personen?, Springer, Berlin, 2005.
Torrelli, Maurice, ‘Les zones de securité’, Revue générale de droit international public, Vol. 99, No. 4, 1995, pp. 787–848.

1 - See Additional Protocol I, Articles 59 and 60.
2 - See Kleffner, pp. 347–348; see also the commentary on common Article 3, section K.
3 - ICRC Study on Customary International Humanitarian Law (2005), Rule 35.
4 - Frequently cited examples of protected zones include: Dacca (1971), Nicosia (1974), Saigon (1975), Phnom Penh (1975), Managua (1979), N’Djamena (1980), Port Stanley/Puerto Argentino (1982), Tripoli (Lebanon) (1983), Jaffna (1990) and Chiapas (1994). Regardless of their denomination, these examples predominantly had the characteristics of a neutralized zone rather than of a hospital or safety zone or locality, having been established, on a temporary basis, close to where the fighting was taking place, for the protection of the civilian population. For the most part, these zones did not arise from the initiative of the Parties to the conflict but of a third party, notably the ICRC. For an overview, see e.g. Bouvier, pp. 258–259; Bugnion, pp. 484 and 755–761; Lavoyer, p. 266; Sandoz, pp. 908–911 and 913–916; and Torrelli, pp. 799–801.
5 - Agreement between Croatia and the Socialist Federal Republic of Yugoslavia on a Protected Zone around the Hospital of Osijek (1991), para. 1. A few days earlier, a monastery and a hospital in Dubrovnik had already been declared protected zones; they, too, were generally respected; see Lavoyer, pp. 267–268.
6 - For further details and a discussion of less successful attempts at establishing protected zones or localities, e.g. at the Vukovar hospital, see Lavoyer, pp. 266–270, and Sandoz, pp. 920–921. See also ICRC, Communication to the press No. 92/1, ‘Conflict in Yugoslavia: Review of ICRC activities’, 2 January 1992.
7 - See Junod, p. 26 (a ‘neutral zone at sea’); Sandoz, pp. 915–916 (‘In purpose and use, the Red Cross Box was therefore rather like a hospital zone as provided for in Article 23 of the First Convention for war on land’); and United Kingdom, Manual of the Law of Armed Conflict, 2004, p. 372, fn. 130. See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), Rule 160: ‘The parties to the conflict may agree, for humanitarian purposes, to create a zone in a defined area of the sea in which only activities consistent with those humanitarian purposes are permitted.’
8 - See, in particular, UN Security Council Res. 687 (1991) (Iraq-Kuwait); Res. 819 (1993) (Srebrenica); Res. 824 (1993) (Sarajevo, Tuzla, Žepa, Goražde, Bihać, Srebrenica); and Res. 925 and 929 (1994) (Rwanda). See also McDonald/Brollowski, paras 10–12.
9 - For further details, see Bouvier, p. 260; Landgren; Lavoyer, pp. 270–275; Sandoz, pp. 919–925; Simon; and Torrelli, pp. 787–847.
10 - For further details, see Lavoyer, pp. 275–276, and Sandoz, pp. 925–927. For a reflection on the differences between the various zones, as well as on past experiences and the conclusions to be drawn, see Report of the Secretary-General to the Security Council on the protection of civilians in armed conflict, UN Doc. S/1999/957, 8 September 1999, p. 21.
11 - For further details, see Rittberg, pp. 19–20, and ICRC, Hospital Localities and Safety Zones, pp. 1–2.
12 - On the protection of military victims of war and of the personnel involved in their care, see the 1899 Hague Convention (III), as well as the 1906 Geneva Convention. Basic provisions with protective effect for civilians during hostilities were adopted in the form of Articles 25–27 of the 1899/1907 Hague Regulations. For further details, see Rittberg, pp. 23–25; ICRC, Hospital Localities and Safety Zones, p. 4; and Simon, pp. 49–51.
13 - For further details, see Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, pp. 208–209. See also Bugnion, pp. 480–481 and 748–749; ICRC, Hospital Localities and Safety Zones, pp. 4–12; Rittberg, pp. 26–69 and 71–82; Sandoz, pp. 901–903; and Simon, p. 52.
14 - See ICRC, ‘Rapport du Comité international de la Croix-Rouge sur le projet de convention pour la création de localités et zones sanitaires en temps de guerre’.
15 - For further details, see Rittberg, pp. 59–69, and ICRC, Hospital Localities and Safety Zones, pp. 11–12.
16 - See the memorandum sent by the ICRC to all the governments of States party to the conflict on 15 March 1944, discussed in ICRC, Hospital Localities and Safety Zones, pp. 17–20.
17 - See Rittberg, pp. 69–71 and 87–93; ICRC, Hospital Localities and Safety Zones, pp. 16–20; and ICRC, Report concerning Hospital and Safety Localities and Zones, pp. 3–7.
18 - For further details, see Report of the Conference of Government Experts of 1947, pp. 26–29, 74 and 300, and ICRC, Hospital Localities and Safety Zones, pp. 36–40.
19 - See Draft Conventions submitted to the 1948 Stockholm Conference, pp. 15 and 158–159; see also ICRC, Hospital Localities and Safety Zones, pp. 40–41.
20 - For details on the Madrid, Shanghai and Jerusalem zones, see e.g. Bugnion, pp. 749–751, and ICRC, Hospital Localities and Safety Zones, pp. 13–16 and 23–36.
21 - For further details, see the commentary on Article 15 of the Fourth Convention. See also ICRC, Hospital Localities and Safety Zones, pp. 23–36 and 41–42.
22 - For further details, see ibid. pp. 42 and 57.
23 - Practice over the past decades has nevertheless shown a clear reticence of States to establish protected zones, especially already in peacetime. See e.g. national responses to question 3.8 of the questionnaire on ‘The implementation of international humanitarian law at the national level with special reference to developments of modern warfare’, Military Law and Law of War Review, Vol. 28, 1989, pp. 51–308.
24 - For details, see section D.
25 - See First Convention, Articles 12, 19, 21–22 and 24–26, Fourth Convention, Articles 16 and 18–20, and Additional Protocol I, Articles 48, 51, 52 and 57, and the pertinent rules of customary international humanitarian law. For further details, see section C.2. With regard to the comparable context of neutralized and demilitarized zones, see also United States, Air Force Commander’s Handbook, 1980, para. 3-6.
26 - First Convention, Annex I: Draft agreement relating to hospital zones and localities, Article 12.
27 - See ICRC, ‘Rapport du Comité international de la Croix-Rouge sur le projet de convention pour la création de localités et zones sanitaires en temps de guerre’, p. 173. In contrast, ‘Neutralized zones’, according to Article 15 of the Fourth Convention, are expressly meant to be established ‘in the regions where fighting is taking place’.
28 - See ICRC, Hospital Localities and Safety Zones, p. 46.
29 - The experts involved in the development of the 1938 Draft underlined the usefulness of hospital zones and localities placed at some distance from the fighting, pointing out that the medical treatment of wounded and sick soldiers would be facilitated by the setting up of such zones and localities because of the greater degree of security provided and because the recovery of those concerned would likely be enhanced by the feeling of additional protection. See ICRC, ‘Rapport du Comité international de la Croix-Rouge sur le projet de convention pour la création de localités et zones sanitaires en temps de guerre, p. 166.
30 - See Kleffner, p. 350.
31 - On the meaning of the obligation to respect and protect, see, in particular, the commentaries on Articles 12 and 24. See also Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, pp. 427–428, commenting on Article 11 of the Draft agreement relating to hospital zones and localities: As a natural consequence of their being declared neutral, hospital zones must never be attacked. There is also a positive obligation; they are to be protected and respected by the belligerents at all times. The authors have deliberately used the phrase protected and respected, which the Geneva Convention applies consistently to the persons, buildings and objects which it safeguards. The 1938 Draft referred expressly to the Convention, saying: ‘they shall be respected and protected in accordance with Article 6 of the Geneva Convention of 1929’. The traditional sense attaching to these two words creates positive obligations of wider implication than a mere prohibition of attack. Protection must be extended, in particular, to the arrangements for supplying the zones and possibly also to the communications leading to them. In case of occupation, the enemy will, moreover, be responsible for the welfare of persons residing in the zone. This responsibility also falls on the Power establishing the zone.
32 - ICRC Study on Customary International Humanitarian Law (2005), Rule 35.
33 - See ICC Statute (1998), Article 8(2)(b)(ix) and (e)(iv). For a commentary, see Dörmann, pp. 215–228 and 458–463.
34 - See ICC Statute (1998), Article 8(2)(b)(v); see also ICTY Statute (1993), Article 3(c).
35 - See ICC Statute (1998), Article 8(2)(b)(i) and (e)(i), (b)(ii), and (b)(xxiv) and (e)(ii).
36 - Additional Protocol I, Article 85(3)(d). See also Additional Protocol I, Articles 59 and 60, which are generally understood as complementing Article 15 of the Fourth Convention. Article 59, in particular, is regarded as a development of Article 25 of the 1907 Hague Regulations; see e.g. Sandoz, pp. 911–912.
37 - For details on the persons intended for shelter in a hospital zone or locality, see section C.3.
38 - See Articles 12, 19, 21–22 and 24–26 of the First Convention and, as applicable, Articles 48, 51–52 and 57 of Additional Protocol I, as well as the pertinent rules of customary international humanitarian law. See also ICRC, ‘Rapport du Comité international de la Croix-Rouge sur le projet de convention pour la création de localités et zones sanitaires en temps de guerre’, pp. 167 and 171.
39 - Articles 59(7) and 60(7) of Additional Protocol I explicitly provide with respect to non-defended localities and demilitarized zones that if such a locality or zone loses its protected status it ‘shall continue to enjoy the protection provided by the other provisions of this Protocol and the other rules of international law applicable in armed conflict’. For further details on these considerations, see ICRC, Hospital Localities and Safety Zones, pp. 47–48, as well as Gasser/Dörmann, pp. 248–249; Kleffner, p. 350; Lavoyer, p. 276; Rittberg, pp. 124–125; and Sandoz, p. 926. See also Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, pp. 425–426, commenting on Article 9(2) of the Draft Agreement annexed to the First Convention. The same considerations apply to the zones imposed by the UN Security Council discussed in section A. See Lavoyer, pp. 275–276, and Sandoz, pp. 925–927.
40 - For the definition of military objectives, see Additional Protocol I, Article 52(2); see also ICRC Study on Customary International Humanitarian Law (2005), Rule 8.
41 - For details, see section D.
42 - In this context ‘demilitarized’ should not be understood in the technical legal sense of Article 60 of Additional Protocol I, but in its common meaning, as a place from which all military forces have been removed; see Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 380. The conditions for non-defended localities and demilitarized zones listed in Articles 59(2) and 60(3) of Additional Protocol I, respectively, are nevertheless informative.
43 - See First Convention, Annex I: Draft agreement relating to hospital zones and localities, Articles 2–5.
44 - See ibid. Article 5(b). See also Gasser/Dörmann, pp. 248–249, in the context of protected zones under Article 14 of the Fourth Convention. Compare also Article 21 of the First Convention.
45 - This is underlined in Article 12 of the Draft agreement relating to hospital zones and localities.
46 - For further details, see the commentary on Article 14 of the Fourth Convention.
47 - In this context, see also Article 19(2) of the Fourth Convention.
48 - Sandoz, p. 913.
49 - Insofar as a hospital zone or locality shelters both military and civilian wounded and sick, see also Article 13 of the Fourth Convention, prohibiting ‘any adverse distinction based, in particular, on race, nationality, religion or political opinion’.
50 - See Articles 24–27. In view of the possibility to combine Article 23 of the First Convention and Article 14 of the Fourth Convention, the presence of medical personnel protected under the Fourth Convention can also be envisaged; see Article 20 of the Fourth Convention. Furthermore, medical personnel protected under Additional Protocol I can also be regarded as lawfully present in a hospital zone or locality; see Additional Protocol I, Articles 8(c) and 15.
51 - See Article 24. In view of the possibility to combine Article 23 of the First Convention and Article 14 of the Fourth Convention, see also Article 20 of the Fourth Convention, with respect to ‘[p]ersons regularly and solely engaged in the operation and administration of civilian hospitals’ and ‘[o]ther personnel who are engaged in the operation and administration of civilian hospitals … while they are employed on such duties’. Medical personnel protected under Additional Protocol I may also be regarded as lawfully present in a hospital zone or locality; see Articles 8(c) and 15 of Additional Protocol I.
52 - See Article 24. Religious personnel protected under Additional Protocol I may also be regarded as lawfully present in a hospital zone or locality; see Additional Protocol I, Articles 8(d) and 15.
53 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 416, commenting on Article 1 of the Draft agreement relating to hospital zones and localities. Recognition of the lawful presence of, among others, ‘police forces retained for the sole purpose of maintaining law and order’ in non-defended localities and demilitarized zones is also contained in Articles 59(3) and 60(4) of Additional Protocol I.
54 - Gasser/Dörmann, pp. 248–249, explain, in the comparable context of hospital and safety zones and localities pursuant to Article 14 of the Fourth Convention: ‘[M]easures shall be taken to provide protection for all, in the sense of ensuring personal security against acts of violence. However, defence of the zone or locality as a whole, with the aim of preventing enemy forces from taking it over, is prohibited’. In this context, compare also Article 22(1) and (2) of the First Convention.
55 - In this sense, Article 60(3) of Additional Protocol I explicitly provides, in the context of demilitarized zones: ‘The Parties to the conflict shall agree … upon persons to be admitted to the demilitarized zone other than those mentioned in paragraph 4.’ Paragraph 4 mentions ‘persons specially protected under the Conventions and this Protocol, and … police forces retained for the sole purpose of maintaining law and order’.
56 - See Article 6 of the Draft agreement relating to hospital zones and localities. According to Additional Protocol III, marking by means of the red crystal is also possible.
57 - This is without prejudice to the protection due under other rules of international humanitarian law, see section C, para. 27.
58 - In this context, ‘non-defended’ and ‘demilitarized’ are not to be understood in the technical legal sense of Articles 59 and 60 of Additional Protocol I, but in their common meaning as places which offer no resistance against attacks and from which all military forces have been removed; see Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, pp. 375 and 380.
59 - On the capacity of military commanders to negotiate and conclude binding agreements, see Kovacs, p. 143, para. 67, commenting on Article 7(1)(b) of the 1969 Vienna Convention on the Law of Treaties, and Alfred Verdross and Bruno Simma, Universelles Völkerrecht: Theorie und Praxis, 3rd edition, Duncker & Humblot, Berlin, 1984, p. 443, para. 687, with further references. Canada’s military manual provides: ‘Any agreement made by belligerent commanders must be adhered to, and any breach of its conditions would involve international responsibility if ordered by a government, and personal liability, (which might amount to a war crime) if committed by an individual on his or her own authority’; LOAC Manual, 2001, para. 1403.1. Note, however, that some military manuals also indicate that, owing, for example, to modern telecommunications, commanders on the ground today only rarely directly enter into negotiations; see Canada, LOAC Manual, 2001, para. 1401.2, and United Kingdom, Manual of the Law of Armed Conflict, 2004, para. 10.3.1. For further details on the conclusion of agreements between Parties to a conflict, see the commentary on common Article 6 (Article 7 in the Fourth Convention).
60 - See UN Security Council, Res. 1325, 31 October 2000, para. 1. There is a growing acknowledgement that women, men, girls and boys are affected by armed conflict in different ways, and that, accordingly, the representation of both women and men at all decision-making levels in national, regional and international institutions and mechanisms for conflict prevention, management and resolution benefits the process. The application of international humanitarian law should also reflect this understanding.
61 - A commentary on the Draft agreement relating to hospital zones and localities can be found in Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, pp. 415–429. Agreements on protected zones over the past decades have reflected elements of the Draft agreement relating to hospital zones and localities, even if the Agreement was not used as such; it should be noted that many of the examples of protected zones in practice predominantly had the characteristics of a neutralized zone in the sense of Article 15 of the Fourth Convention, for which no Draft Agreement was attached to the Convention.
62 - For an overview, see e.g. Bugnion, pp. 755–759. When a protected zone or locality is set up exclusively under the ICRC’s responsibility, its work can be based on its general right of humanitarian initiative laid down in common Article 9 (Article 10 in the Fourth Convention). In the context of a non-international armed conflict, the basis of an initiative taken by the ICRC can be found in common Article 3(2).