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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Commentary
of 1987
Demilitarized zones
[p.707] Article 60
-- Demilitarized zones
[p.708] 2298 The Rapporteur of Committee III noted that it was difficult to find an adequate term to describe the protected zones which it was
felt should be created. The terms discussed included "neutralized
zones", "non-militarized zones" and in French even the term "zones
civilisées", but finally the term "demilitarized zones" was
adopted. (1)
2299 In fact, this expression is not in itself very accurate; to be precise, it ought to be "delimitarized zones in the sense of Article
60
of the Protocol". Demilitarized zones could actually mean very
different institutions. Thus, for example, some peace treaties have
imposed on the defeated Party the demilitarization of certain areas.
Articles 42-44 of the Treaty of Versailles of 1919 laid down that
Germany could have no fortification or military establishment of any
sort on the left bank of the Rhine and in an area fifty kilometres
east from that river. The Peace Treaty signed in 1947 by the Allied
Powers and Italy provides that certain territories, [p.709] in
particular islands such as Pantelleria, should be demilitarized and
remain so; the same Treaty provides that the Dodecanese Islands,
ceded by Italy to Greece, should be demilitarized and remain so under
the new sovereignty. Annex VIII, Article D, of that Treaty gives a
definition of the terms "demilitarization" and "demilitarized". (2)
2300 In other cases two or more States have agreed to provide in an international treaty that a particular territory should be
demilitarized. This occurred, for example, with regard to the Aaland
Islands, situated between Sweden and Finland, in the Gulf of Bothnia.
It also applies to Antarctica pursuant to the Treaty concluded in
Washington on 1 December 1959.
2301 Finally there is a third category of demilitarized zones: those established following an armistice, which are generally known as
"buffer zones". The main objective of such zones is to prevent the
adverse armed forces from being in contact, and they are often placed
under the authority of an armistice commission, or in some cases, of
a peacekeeping force of the United Nations. The best known recent
cases are the demilitarized zones in Korea and in the Middle East
between Israel and its neighbours.
2302 It is quite clear that the drafters of Article 60
did not have such zones in mind, even though they provided that demilitarized
zones could be created already in time of peace. In fact, such
different types of demilitarized zones, created by treaty, as
mentioned above, are not created for wartime but for peacetime, or at
least for an armistice.
2303 In fact, this is the essential character of the zones created in Article 60
: they have a humanitarian and not a political aim; they
are specially intended to protect the population living there against
attacks. Admittedly, there is nothing to prevent a demilitarized zone
created by a peace treaty, armistice or any other international
agreement, from becoming a demilitarized zone in accordance with
Article 60
in the case of armed conflict, provided this is done by
means of a new agreement.
Paragraph 1
2304 This paragraph contains the basic rules relating to demilitarized zones. In the first place, such zones can only be created by
agreement: in other words, a simple unilateral declaration is not
sufficient, even if the zone fulfils the other conditions laid down
in the article. The prohibition concerns the extension of military
operations to such zones. It does not, as in the preceding article
' (Non-defended [p.710] localities), ' refer to attacks. Should this
different formulation be seen as an intention to lay down different
rules in this field? To answer this question it is necessary to
analyze the meaning of the words used. The expression "military
operations" should be understood as all movements and activities
related to hostilities, carried out by armed forces. The zone of
military operations was defined by a mixed Working Group of the
Diplomatic Conference in the following way: "in an armed conflict,
the territory where the armed forces of the adverse Parties taking a
direct or an indirect part in current military operations, are
located". (3)
2305 From the preceding it follows that the Party to the conflict in whose territory the demilitarized zone is located cannot set up
military installations there or quarter troops participating in
military operations in that zone, nor are such troops allowed to go
through the zone. Such activity would be contrary to the very
conditions underlying the creation of the zone. IIowever, when the
agreement by which the zone is created provides that it will continue
to apply even if the adversary reaches the periphery, the latter must
restrict itself to establishing a civil administration there without
introducing troops or establishments which would be contrary to the
nature of the zone. Failing such a provision, the adversary, upon
arriving at the periphery of the zone, may at its discretion accept
and respect the status of the zone or, on the contrary, make use of
it in planning its military operations by quartering troops and
setting up installations there.
2306 In conclusion, it is clear that a prohibition on extending military operations to demilitarized zones includes the prohibition
on attacking them and also covers bringing in troops or military
installations into such a zone by the belligerent controlling the
territory. What happens to the zone in case it changes hands depends
on the terms of the agreement by which it was established.
Paragraph 2
2307 This paragraph clearly says that the agreement cannot be a tacit one: it requires that a consensus ad idem of the Parties be clearly
expressed. The mere notification, when it remains unanswered, is
insufficient. However, it must be admitted that in certain urgent
cases good faith requires a rapid response. The form of the
agreement, the manner in which it is concluded and its contents, are
left to the judgment of the Parties to the conflict. The paragraph
specifically requires that the geographical limits should be
described, and that the methods of supervision should be laid down.
Undoubtedly efforts will be made to ensure that the limits of the
zone coincide with natural boundaries whenever possible.
2308 Finally, it is provided that the agreement may be concluded in peacetime. However, it is unlikely that two or more States will agree
in advance to keep one or more zones clear of military operations in
the event of a conflict breaking out between them: this seems, at
least, a rather theoretical point.
[p.711] 2309 According to the Rapporteur, the article, and in particular, this paragraph, covers not only zones from which military forces have been
withdrawn in order to fulfil the conditions laid down by this article
and by the agreement establishing the zones, (4) but also those zones
where there were no military forces to start with, and which in other
respects, too, satisfy the conditions laid down in the article and in
the agreement creating the zones. This view seems to be correct.
Paragraph 3
2310 The conditions laid down here are almost the same as those for non-defended localities (Article 59
-- ' Non-defended localities, '
paragraph 2), and reference may be made to what was said above in
this respect. According to the Rapporteur, the word "normally" in the
introductory sentence was introduced to permit the Parties to agree
about zones which do not fulfil all the conditions of this
paragraph. (5)
2311 Finally, there is a slight difference from Article 59
' (Non-defended localities). ' In fact, that article lays down the
condition that no activity in support of military operations may be
undertaken while the paragraph under consideration here provides that
any activity linked to the military effort must have ceased. The
language used in Article 60
has a slightly wider scope, and
undoubtedly covers those factories which are mainly operating for the
armed forces. However, this condition is not absolutely clear and
that is why the Parties to the conflict are invited to include in the
agreement an interpretation of this condition; such an interpretation
may cover different categories of activities; it may also designate
by name the businesses or establishments which must cease or modify
their production.
Paragraph 4
2312 Again reference may be made to what was said with regard to paragraph 3 of Article 59
' (Non-defended localities), ' which is
worded in the same terms. However, the Parties to the conflict are
invited to indicate in the agreement they conclude what other
categories of persons will be admitted into the demilitarized zone.
This will almost always be persons who are particularly weak or
deserving of protection, such as children, the elderly, mothers of
young children, pregnant women etc. Such a clarification is
necesssary, for in principle the zones provided for in this article
are primarily concerned with protecting the population residing there
and do not constitute places of refuge, as do the safety zones
provided for in the Fourth Convention.
[p.712] Paragraph 5
2313 This paragraph is identical to paragraph 6 of Article 59
' (Non-defended localities), ' and we refer to the commentary
thereon. (6)
Paragraph 6
2314 This paragraph only applies if the Parties to the conflict have provided, in the agreement establishing the zone, that it will remain
in existence, even if the adversary takes possession of the territory
in which the zone is located. Without such a provision the
belligerent occupying the territory surrounding the zone could
maintain or abolish it as it wished. If it decides to maintain it, it
must notify the adverse Party, which may object.
Paragraph 7
2315 It is not often that the Geneva Conventions envisage the consequences which would be incurred by violation of their provisions
or of agreements entered into pursuant to the Conventions. Examples
in Protocol I are Articles 51
' (Protection of the civilian
population), ' paragraph 8, and Article 77
' (Protection of
children). '
2316 This is also the case here, where it is provided that a material breach may lead to the end of the demilitarized zone. However, the
peaceful population should not suffer because of this. Therefore,
although the provision does not say so explicitly, the spirit of the
Geneva Conventions requires that prior warning is given whenever
possible, in order to allow the Party alleged to have committed the
breach, the time to remedy the situation and put an end to the
breach.
2317 It is clear, for it is a humanitarian imperative, that even if the zone loses its status, the adversary will not be exempt from
observing the other provisions for protection enjoyed by the civilian
population under the Protocol, particularly under Part IV ' (Civilian
population) ' and the other rules of international law applicable in
armed conflict. The expression "rules of international law applicable
in armed conflict" is defined in Article 2
' (Definitions), '
sub-paragraph (b), and we refer the reader to the commentary thereon.
2318 However, the fact that a zone is deprived of its privileged status does increase the risks to which the population is exposed in
practice. Therefore the adverse Party must take the requisite
precautionary measures and remember that "in the conduct of military
operations, constant care shall be taken to spare the civilian
population, civilians and civilian objects". (7)
' C.P./J.P. '
NOTES
(1) [(1) p.708] O.R. XV, p. 287, CDDH/215/Rev.1, para. 110;
(2) [(2) p.709] This is the definition given in Annex XII, Definitions: D) definition of the terms "demilitarisation"
and "demilitarized" "For the purpose of the present Treaty
the terms 'demilitarisation' an 'demilitarized' shall be
deemed to prohibit, in the territory and territorial
waters concerned, all naval, military and military air
installations, fortifications and their armaments;
artificial military, naval and air obstacles; the basing
or the permanent or temporary stationing of military,
naval and military air units; military training in any
form; and the production of war material. This does not
prohibit internal security personnel restricted in number
to meeting - tasks of an internal character and equi pped
with weapons which can be carried and operated by one
person, and the necessary military training of such
personnel.";
(3) [(3) p.710] O.R. XV, p. 338, CDDH/II/266-CDDH/III/255, Annex A;
(4) [(4) p.711] O.R. XV, p. 287, CDDH/215/Rev.1, para. 110;
(5) [(5) p.711] Ibid., p. 287, para. 111;
(6) [(6) p.712] Cf. supra, p. 705;
(7) [(7) p.712] Art. 57, para. 1;
GVALNWB2/ICRC
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