Practice Relating to Rule 37. Open Towns and Non-Defended Localities

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New Delhi Draft Rules
Article 16 of the 1956 New Delhi Draft Rules states:
When, on the outbreak or in the course of hostilities, a locality is declared to be an “open town” the adverse Party shall be duly notified. The latter is bound to reply, and if it agrees to recognize the locality in question as an open town, shall cease all attacks on the said town, and refrain from any military operation the sole object of which is its occupation.
In the absence of any special conditions which may, in any particular case, be agreed upon with the adverse Party, a locality, in order to be declared an “open town”, must satisfy the following conditions:
(a) it must not be defended or contain any armed force;
(b) it must discontinue all relations with any national or allied armed forces;
(c) it must stop all activities of a military nature or for a military purpose in those of its installations or industries which might be regarded as military objectives;
(d) it must stop all military transit through the town.
The adverse Party may make the recognition of the status of “open town” conditional upon verification of the fulfilment of the conditions stipulated above. All attacks shall be suspended during the institution and operation of the investigatory measures.
The presence in the locality of civil defence services, or of the services responsible for maintaining public order, shall not be considered as contrary to the conditions laid down in paragraph 2. If the locality is situated in occupied territory, this provision applies also to the military occupation forces essential for the maintenance of public law and order.
When an “open town” passes into other hands, the new authorities are bound, if they cannot maintain its status, to inform the civilian population accordingly. 
Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, drafted by the International Committee of the Red Cross, September 1956, submitted to governments for their consideration on behalf of the 19th International Conference of the Red Cross, New Delhi, 28 October–7 November, Res. XIII, Article 16.
Argentina’s Law of War Manual (1989) provides for the possibility of establishing undefended areas and refers to the conditions set out for this purpose in Article 60 of the 1977 Additional Protocol I. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 4.06.
Belgium’s Law of War Manual (1983) states: “an area is considered as an ‘undefended area’ or as an ‘open town’ when it is undefended to the point that it can be taken without a single shot or without any losses (e.g. due to the presence of mines)”. It adds that the presence of wounded military personnel and weapons does not change the status of the area as an open town or undefended area. The manual points out two procedures to obtain the status of “open town”, namely, a unilateral declaration or an agreement between the belligerents. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 30.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Military Instructions (1992) provides:
In order to ensure full protection of such place [an open town], it is necessary that the other side to the conflict also recognizes the status of the city and to reach an agreement on the necessary preconditions in that regard. These preconditions are usually related to the following: the places should not be defended and no armed forces should be deployed in it; no military units should cross its territory for the purpose of transporting military material; no activities of military importance should be undertaken in industrial plants; and there should be no liaison with local armed forces and allied armed forces. 
Bosnia and Herzegovina, Instructions on the Implementation of the International Law of War in the Armed Forces of the Republic of Bosnia and Herzegovina, Official Gazette of ABiH, No. 2/92, 5 December 1992, § 6.
France’s LOAC Manual (2001) defines as an open town “any inhabited area located in the combat zone or in its proximity, which is open to enemy occupation in order to avoid fighting and destruction”. It lists the following four conditions that must be fulfilled in order for a town to be considered an open town: all combatants as well as mobile weapons and military material must be evacuated; no hostile use shall be made of fixed military installations and establishments; the authorities and the population shall abstain from committing any act of hostility; no activities in support of military operations shall be undertaken. The manual gives Paris in 1940 and Rome in 1943 as examples of open towns during the Second World War. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 124.
The Military Manual (2005) of the Netherlands states:
Parties to a conflict are prohibited from attacking undefended localities. This is a development of the older “open city” doctrine. The authorities of a party to a conflict may designate any inhabited place near the zone in which military operations are being conducted as an undefended locality. This, therefore, is a unilateral declaration.
During the Second World War, cities were several times declared “open”. In June 1940, for example, the French Government declared Paris and Bordeaux, among other places, open cities. In 1945 the Allies declared Rome an open city after landing in Italy. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0552.
Switzerland’s Basic Military Manual (1987) notes that during the Second World War localities that were declared to be open were understood to be undefended should the enemy reach their periphery. It also points out different conditions that need to be fulfilled to obtain the status of “undefended areas”. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 32.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) defines an open or undefended town as:
A town 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 located behind the immediate front line can be deemed open or undefended, since 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 conditions imposed on all bombardment, namely, that as far as possible, the latter must be limited to military objectives … A town in the front line with no means of defence, not defended from the 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. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 290.
The manual goes on to say that, prima facie, a fortified place is considered as defended, unless there are visible signs of surrender. However, a locality need not be fortified to be deemed “defended”, and it may be held thus if a military force is occupying it or marching through it. It states that a town should be considered to be defended (and thus liable to bombardment) even if defended posts are detached and located at a distance from the city:
The town and defended posts form an indivisible whole, inasmuch as the town may contain workshops and provide supplies which are invaluable to the defence and may serve to shelter the troops holding the defence points when they are not on duty. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 289.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) provides that the establishment of an open town requires agreement between the parties and restates the conditions contained in Article 16 of the 1956 New Delhi Draft Rules. 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 81.
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In the Priebke case in 1996, Italy’s Military Tribunal of Rome examined the status of Rome as an “open town” in 1944. The Tribunal concluded that the city did not enjoy such status, arguing that neither a unilateral declaration nor the voluntary behaviour of one of the parties was sufficient to establish an obligation upon the other party. Only after acceptance was obtained from the other party (or parties), i.e. when an agreement was reached, could the status of open town become legally binding for the belligerents. 
Italy, Military Tribunal of Rome, Priebke case, Judgment No. 385, 1 August 1996.
In February 1994, in the context of the internal conflict in Chiapas in Mexico, two villages – San Miguel in the municipality of Ocosingo and Guadalupe el Tepeyac in the municipality of Las Margaritas – were established as free villages with the aim of creating areas of détente and to support the civilian population in the conflict zone. The Mexican army would provide facilities for the movement and transit of people, food and medical care to each of these villages. 
Mexico, Commissioner for Peace and Reconciliation in the State of Chiapas, Press Conference, 1 February 1994, § 2.
Yugoslavia, Federal Republic of
According to the Report on the Practice of the Federal Republic of Yugoslavia, “the opinio iuris and the customary nature of rules relevant to the establishment of these zones [open towns and undefended places] in FRY is absolutely clear”. 
Report on the Practice of the Federal Republic of Yugoslavia, 1997, Chapter 1.8.
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