Rule 37. Directing an attack against a non-defended locality is prohibited.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The concept of non-defended localities is rooted in the traditional concept of an “open town”. The prohibition on attacking undefended places was included in the Brussels Declaration and the Oxford Manual.[1] It was codified in Article 25 of the Hague Regulations, which provides that “the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited”.[2] The Report of the Commission on Responsibility set up after the First World War identifies “deliberate bombardment of undefended places” as a violation of the laws and customs of war which should be subject to criminal prosecution.[3] Under Additional Protocol I, it is prohibited to making a non-defended locality the object of attack and doing so is a grave breach of the Protocol.[4] Under the Statute of the International Criminal Court, “intentionally attacking towns, villages, dwellings or buildings which are undefended and which are not military objectives” is a war crime in international armed conflicts.[5]
The prohibition on attacking non-defended localities is contained in numerous military manuals.[6] Sweden’s IHL Manual identifies the chief rule relating to non-defended localities in Article 59 of Additional Protocol I as a codification of pre-existing customary international law.[7] Under the legislation of numerous States, it is an offence to attack non-defended localities.[8] The prohibition is also supported by official statements.[9] This practice includes that of States not, or not at the time, party to Additional Protocol I.[10]
The prohibition of attacks against non-defended localities is included in Article 3 of the Statute of the International Criminal Tribunal for the former Yugoslavia, according to which the Tribunal is competent to prosecute violations of the laws or customs of war, including “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings”.[11]
This rule is also contained in military manuals which are applicable in or have been applied in non-international armed conflicts.[12] Under the legislation of many States, it is an offence to attack non-defended localities in any armed conflict.[13] In 1997, in the Perišić and Others case, in which several persons were convicted of having ordered the shelling of Zadar and its surroundings, Croatia’s District Court of Zadar applied Article 25 of the Hague Regulations alongside common Article 3 of the Geneva Conventions and Articles 13–14 of Additional Protocol II.[14]
While the concept of non-defended localities was specifically developed for international armed conflicts, it applies to non-international armed conflicts as well. This is especially so since the idea of prohibiting attacks on non-defended localities is based on the more general concept of military necessity: there is no need to attack a town, village, dwelling or building that is open for occupation. This rule is an application of the principle that no more destruction may be wrought upon an adversary than absolutely necessary, a rule which is also applicable in non-international armed conflicts (see Rule 50). As stated in Kenya’s LOAC Manual, under customary law “undefended localities that can be occupied, cannot be bombarded”.[15]
No official contrary practice was found with respect to either international or non-international armed conflicts.
The UK Military Manual provides a useful description of an open or undefended town as one
which is so completely undefended from within or without that the enemy may enter and take possession of it without fighting or incurring casualties. It follows that no town behind the immediate front line can be open or undefended for the attacker must fight his way to it. Any town behind the enemy front line is thus a defended town and is open to ground or other bombardment subject to the limitations imposed on all bombardments, namely, that … the latter must be limited to military objectives … Thus, the question of whether a town is or is not an open town is distinct from whether it does or does not contain military objectives. A town in the front line with no means of defence, not defended from outside and into which the enemy may enter and of which he may take possession at any time without fighting or incurring casualties, e.g., from crossing unmarked minefields, is undefended even if it contains munitions factories. On the other hand, all defended towns whether situated in the front line or not may be subjected to bombardment.[16]
Article 59(2) of Additional Protocol I defines the concept of a non-defended locality as an “inhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse Party”.[17] This is essentially the same definition as that of an open town or undefended area under traditional customary international law.
Article 59(2) of Additional Protocol I has clarified the procedure for declaring a locality to be undefended. This procedure is different from that of zones set up by agreement in that a party to the conflict may unilaterally declare a locality to be non-defended provided that: (1) all combatants, mobile weapons and mobile military equipment have been evacuated; (2) no hostile use is made of fixed military installations or establishments; (3) no acts of hostility are committed by the authorities or by the population; and (4) no activities in support of military operations are undertaken.[18] The other party shall acknowledge receipt of such a declaration and shall treat the locality as non-defended unless these conditions are not (or no longer) fulfilled.[19] This procedure is set forth in many military manuals,[20] including those of States not, or not at the time, party to Additional Protocol I.[21]
Article 59(5) of Additional Protocol I nevertheless provides that the parties to the conflict may establish non-defended localities even if the above-mentioned conditions are not fulfilled.[22] It is obvious that the conclusion of an agreement provides greater certainty and allows the parties to establish the conditions as they see fit. Kenya’s LOAC Manual explains:
[non-defended localities] can be established through a unilateral declaration and notification given to the enemy Party. However, for greater safety, formal agreements should be passed between the two Parties (under customary law and the Hague regulations undefended localities that can be occupied, cannot be bombarded even if there is no notification).[23]
An attack against an area or locality without it being militarily necessary to do so would constitute a violation of the prohibition on destroying the property of an adversary, unless required by imperative military necessity (see Rule 50).
A locality loses its protection from attack when it ceases to fulfil the required conditions. According to Article 59(3) of Additional Protocol I, the presence of persons afforded special protection and of police forces retained for the sole purpose of maintaining law and order is not contrary to these conditions.[24]
[1] Brussels Declaration, Article 15 (cited in Vol. II, Ch. 11, § 233); Oxford Manual, Article 32(c) (ibid., § 234).
[2] 1907 Hague Regulations, Article 25 (ibid., § 228); see also the 1899 Hague Regulations, Article 25 (ibid., § 227).
[3] Report of the Commission on Responsibility (ibid., § 235).
[4] Additional Protocol I, Article 59(1) (ibid., § 230) and Article 85(3)(d) (ibid., § 231).
[5] ICC Statute, Article 8(2)(b)(v) (ibid., § 232).
[6] See, e.g., the military manuals of Argentina (ibid., §§ 241–242), Australia (ibid., § 243), Belgium (ibid., § 244), Bosnia and Herzegovina (ibid., § 245), Canada (ibid., § 246), Croatia (ibid., §§ 247–248), Ecuador (ibid., § 249), France (ibid., §§ 250–251), Germany (ibid., § 252), Hungary (ibid., § 253), Indonesia (ibid., § 254), Italy (ibid., §§ 255–256), Kenya (ibid., § 257), Republic of Korea (ibid., §§ 258–259), Netherlands (ibid., §§ 260–261), New Zealand (ibid., § 262), Nigeria (ibid., § 263), Russian Federation (ibid., § 264), South Africa (ibid., § 265), Spain (ibid., § 266), Sweden (ibid., § 267), Switzerland (ibid., § 268), United Kingdom (ibid., §§ 269–270), United States (ibid., §§ 271–276) and Yugoslavia (ibid., § 277).
[7] Sweden, IHL Manual (ibid., § 267).
[8] See, e.g., the legislation of Armenia (ibid., § 279), Australia (ibid., §§ 280–282), Azerbaijan (ibid., § 283), Belarus (ibid., § 284), Belgium (ibid., § 285), Bosnia and Herzegovina (ibid., § 286), Canada (ibid., §§ 288–289), China (ibid., § 290), Congo (ibid., § 291), Cook Islands (ibid., § 292), Croatia (ibid., § 293), Cyprus (ibid., § 294), Czech Republic (ibid., § 295), Estonia (ibid., § 297), Georgia (ibid., § 298), Germany (ibid., § 299), Hungary (ibid., § 300), Ireland (ibid., § 301), Lithuania (ibid., § 304), Mali (ibid., § 305), Netherlands (ibid., § 306–307), New Zealand (ibid. , §§ 308–309), Niger (ibid., § 311), Norway (ibid., § 312), Poland (ibid., § 313), Slovakia (ibid., § 314), Slovenia (ibid., § 315), Spain (ibid., § 316), Tajikistan (ibid., § 317), United Kingdom (ibid., §§ 319–320), United States (ibid., § 321), Venezuela (ibid., § 322), Yugoslavia (ibid., § 323) and Zimbabwe (ibid., § 324); see also the draft legislation of Argentina (ibid., § 278), Burundi (ibid., § 287), El Salvador (ibid., § 296), Jordan (ibid., § 302), Lebanon (ibid., § 303), Nicaragua (ibid., § 310) and Trinidad and Tobago (ibid., § 318).
[9] See, e.g., the statements of China (ibid., § 330), Egypt (ibid., § 332), Islamic Republic of Iran (ibid., § 336), Iraq (ibid., § 337) and United States (ibid., § 340).
[10] See, e.g., the practice and reported practice of Azerbaijan (ibid., § 283), China (ibid., §§ 290 and 330), France (ibid., § 250), Indonesia (ibid., § 254), Islamic Republic of Iran (ibid., § 336), Iraq (ibid., § 337), Netherlands (ibid., § 306), United Kingdom (ibid., §§ 269–270), and United States (ibid., §§ 271–276, 321 and 340).
[11] ICTY Statute, Article 3(c) (ibid., § 238).
[12] See, e.g., the military manuals of Bosnia and Herzegovina (ibid., § 245), Croatia (ibid., §§ 247–248), Ecuador (ibid., § 249), Germany (ibid., § 252), Italy (ibid., §§ 255–256), Kenya (ibid., § 257), Republic of Korea (ibid., § 259), South Africa (ibid., § 265) and Yugoslavia (ibid., § 277).
[13] See, e.g., the legislation of Armenia (ibid., § 279), Azerbaijan (ibid., § 283), Belarus (ibid., § 284), Belgium (ibid., § 285), Bosnia and Herzegovina (ibid., § 286), Croatia (ibid., § 293), Georgia (ibid., § 298), Germany (ibid., § 299), Lithuania (ibid., § 304), Niger (ibid., § 311), Poland (ibid., § 313), Slovenia (ibid., § 315), Spain (ibid., § 316), Tajikistan (ibid., § 317), Bolivarian Republic of Venezuela (ibid., § 322) and Yugoslavia (ibid., § 323); see also the legislation of the Czech Republic (ibid., § 295), Hungary (ibid., § 300) and Slovakia (ibid., § 314), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 278), El Salvador (ibid., § 296), Jordan (ibid., § 302) and Nicaragua (ibid., § 310).
[14] Croatia, District Court of Zadar, Perišić and Others case (ibid., § 325).
[15] Kenya, LOAC Manual (ibid., § 209).
[16] United Kingdom, Military Manual (ibid., § 192).
[17] Additional Protocol I, Article 59(2) (adopted by consensus) (ibid., § 202).
[18] Additional Protocol I, Article 59(2) (adopted by consensus) (ibid., § 202).
[19] Additional Protocol I, Article 59(4) (adopted by consensus), which states that “the declaration made under paragraph 2 shall be addressed to the adverse Party and shall define and describe, as precisely as possible, the limits of the non-defended locality. The Party to the conflict to which the declaration is addressed shall acknowledge its receipt and shall treat the locality as a non-defended locality unless the conditions laid down in paragraph 2 are not in fact fulfilled, in which event it shall immediately so inform the Party making the declaration. Even if the conditions laid down in paragraph 2 are not fulfilled, the locality 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”.
[20] See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 11, § 204), Australia (ibid., § 205), Canada (ibid., § 206), France (ibid., § 207), Germany (ibid., § 208), Indonesia (ibid., § 254), Kenya (ibid., § 209), Netherlands (ibid., § 210), New Zealand (ibid., § 211), Sweden (ibid., § 212), Switzerland (ibid., § 213), United States (ibid., § 214) and Yugoslavia (ibid., § 215).
[21] See, e.g., the military manuals of Kenya (ibid., § 209), Indonesia (ibid., § 254) and United States (ibid., § 214).
[22] Additional Protocol I, Article 59(5) (adopted by consensus) (ibid., § 202).
[23] Kenya, LOAC Manual (ibid., § 209).
[24] Additional Protocol I, Article 59(3) (adopted by consensus) (ibid., § 202).