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

Additional Protocol I
Article 59(2) of the 1977 Additional Protocol I provides:
The appropriate authorities of a Party to the conflict may declare as a non-defended locality any inhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse Party. Such a locality shall fulfil the following conditions:
a) all combatants, as well as mobile weapons and mobile military equipment, must have been evacuated;
b) no hostile use shall be made of fixed military installations or establishments;
c) no acts of hostility shall be committed by the authorities or by the population; and
d) no activities in support of military operations shall be undertaken.
Article 59(3) specifies that “the presence, in this [non-defended] locality, of persons specially protected under the [1949 Geneva] Conventions and this Protocol, and of police forces retained for the sole purpose of maintaining law and order, is not contrary to the conditions laid down in paragraph 2”.
Article 59(5) provides for the possibility for parties to a conflict to agree on the establishment of non-defended localities under other conditions:
The Parties to the conflict may agree on the establishment of non-defended localities even if such localities do not fulfil the conditions laid down in paragraph 2. The agreement should define and describe, as precisely as possible, the limits of the non-defended locality; if necessary, it may lay down the methods of supervision. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 59(2), (3) and (5). Article 59 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 215.
ILA Draft Convention for the Protection of Civilian Populations against New Engines of War
Articles 10 and 11 of the 1938 ILA Draft Convention for the Protection of Civilian Populations against New Engines of War provide:
Art. 10. For the purpose of better enabling a State to obtain protection for the non-belligerent part of its civil population, a State may, if it thinks fit, declare a specified part or parts of its territory to be a “safety zone” or “safety zones” and, subject to the conditions following, such safety zones shall enjoy immunity from attack or bombardment by whatsoever means, and shall not form the legitimate object of any act of war.
Art. 11. A safety zone shall consist of either:
(a) a camp specially erected for that purpose and so situated as to ensure that there is no defended town, port, village or building within “x” kilometres of any part of such camp, or
(b) an undefended town, port, village or building as defined in Article 2 [a town, port, village or isolated building shall be considered undefended provided that not only (a) no combatant troops, but also (b) no military, naval or air establishment, or barracks, arsenal, munition stores or factories, aerodromes or aeroplane workshops or ships of war, naval dockyards, forts, or fortifications for defensive or offensive purposes, or entrenchments (in this Convention referred to as “belligerent establishments”) exist within its boundaries or within a radius of “x” kilometres from such boundaries]. 
Draft Convention for the Protection of Civilian Populations against New Engines of War, adopted by the International Law Association, Fortieth Conference, Amsterdam, 29 August–2 September 1938, Articles 10 and 11.
Argentina
Argentina’s Law of War Manual (1989) provides for the possibility of establishing non-defended localities and refers to the conditions set out for this purpose in Article 59 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.
Australia
Australia’s Defence Force Manual (1994) states:
727. A non-defended locality is any inhabited or uninhabited place near or in a zone where opposing armed forces are in contact and which has been declared by parties to the conflict as open for occupation by a party to the conflict. In order to be considered a non-defended locality, the following conditions must be fulfilled:
(a) all combatants, weapons and military equipment must have been evacuated or neutralised;
(b) no hostile use is made of fixed military installations or establishments;
(c) no acts of hostility are to be committed by the authorities or the population; and
(d) no activities in support of military operations shall be undertaken.
728. The presence in this locality of protected persons and police forces retained for the sole purpose of maintaining law and order, does not change the character of a non-defended locality.
729. A non-defended locality may be declared by a party to the conflict. That declaration must describe the geographical limits of the locality and be addressed to the relevant party to the conflict which must acknowledge its receipt and from that time treat the locality as a non-defended locality unless the conditions for establishment of the locality are not met. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, §§ 727–729; see also Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 921.
Australia
Australia’s LOAC Manual (2006) states:
7.29 The parties to the conflict may declare as a non-defended locality any inhabited or uninhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse party. In order to be considered a non-defended locality, the following conditions must be fulfilled:
• all combatants, weapons and military equipment, must have been evacuated or neutralised;
• no hostile use is made of fixed military installations or establishments;
• no acts of hostility are to be committed by the authorities or the population; and
• no activities in support of military operations shall be undertaken.
7.30 The presence in this locality of protected persons and police forces retained for the sole purpose of maintaining law and order, does not change the character of a non-defended locality.
7.31 The declaration of a non-defended locality must describe the geographical limits of the locality and be addressed to the relevant party to the conflict which must acknowledge its receipt and from that time treat the locality as a non-defended locality unless the conditions for establishment of the locality are not met. In that case, the locality continues to enjoy the protection provided by other provisions of Additional Protocol I and other rules of international law applicable in armed conflict.
7.32 The parties to the conflict may also agree to grant the status of a non-defended locality to a particular area even if the conditions referred to in paragraph 7.29 are not fulfilled. Although there is no specific format or content for any such agreement, the principal points should be:
• the exact geographical limits of the area;
• the date and time of entry into force;
• the duration;
• the rules on marking the limits of the area and the type of marking to be used;
• persons or classes of persons authorised to enter the locality;
• if necessary, the methods of supervision; and
• the ultimate fate of the locality and the possible conditions under which the area may be occupied by enemy troops.
7.33 Non-defended localities are to be signposted and although the status may be lost when the conditions upon which it was established are no longer being satisfied, the locality shall continue to enjoy any other protection afforded by the LOAC.
7.34 Even though all the conditions are not met, the parties may agree between themselves to treat an area as a non-defended locality. The agreement should be in writing and should specify the exact geographical limits of the locality, the date and time of the entry into force of the agreement and its duration, rules on marking the locality and agreed signs, persons authorised to enter the locality, methods of supervision (if any), whether and under what conditions the locality may be occupied by enemy troops. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 7.29–7.34; see also § 9.40.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Canada
Canada’s LOAC Manual (1999) provides that “any inhabited place near or in a zone where armed forces are in contact” may be declared by a party to a conflict as a non-defended locality and, thereby, become open for occupation by the adverse party. The conditions that, under the manual, must be normally satisfied by a non-defended locality are the same as those listed in Article 59(2) of the 1977 Additional Protocol I. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-11, §§ 110–111.
The manual also provides for the possibility for the parties to a conflict to agree to establish a non-defended locality even when the said conditions are not all satisfied. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-11, § 112.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
1. It is prohibited for parties to a conflict to attack, by any means whatsoever, non-defended localities.
2. A party to a conflict may declare as a non-defended locality any inhabited place near or in a zone where armed forces are in contact. The non-defended locality is then open for occupation by the adverse party.
3. A[…] non-defended locality must normally satisfy the following conditions:
a. all combatants, as well as mobile weapons and mobile military equipment, must have been evacuated;
b. no hostile use shall be made of fixed military installations or establishments;
c. no acts of hostility shall be committed by the authorities or by the population; and
d. no activities in support of military operations shall be undertaken.
4. However, the parties to a conflict may agree to the establishment of a non-defended locality even where these conditions are not all satisfied.
5. The party in control of a non-defended locality shall mark it, so far as possible, by such signs as may be agreed upon by the adverse parties. Such signs shall be displayed where they are clearly visible, especially on the non-defended locality’s perimeter and on highways.
6. An area loses its status as a non-defended locality when it ceases to fulfil the conditions described above or in an agreement between adverse parties to establish the non-defended locality. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 456.1–6.
In its chapter entitled “Communications and contact between opposing forces”, the manual further states:
1403. Agreements
1. 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. The terms of any agreement should be clear and precise and carefully explained to the troops affected by it. Whenever possible it should be reduced to writing.
1407. Special zones
1. Agreements may also be made between the belligerents for particular areas to be placed, either on a permanent or temporary basis, outside of the zone of operations. Such arrangements may be made directly or through the good offices of a neutral power [or] the protecting power. These agreements may be concerned with the establishment of safety zones, neutralized zones, exclusion zones, open cities and undefended places. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1403.1 and 1407.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):
IV.2. Protected zones
The law of armed conflicts makes provision for various protected zones or localities. It is important to know the raison d’être of these zones. These zones can have different names, but they always have two elements in common:
- to protect civilian and military victims against the effects of hostilities;
- to keep these victims separate, guaranteeing that there are no military objectives in the defined zones.
Thus, if the enemy respects the law, the victims run no risk of suffering from the effects of the hostilities. Attacks against these zones or localities are prohibited.
IV.6. Non-defended localities
They are places deliberately left without defence, in order to protect the civilian population and its goods against any attack or damage. These places are created by a unilateral declaration communicated to the adverse party. They can also be made the object of distinct agreements concluded between the two parties. These agreements must define, as precisely as possible, the limits of the non-defended locality, which is open to occupation and into which the armed forces of the enemy can enter, and of which they can take possession. Non-defended localities can be created near or in the combat zone. Combatants as well as mobile weapons and mobile military equipment must be evacuated from them. These localities must not be used in support of military operations; firing positions or missile sites must in no case be used for offensive purposes. The party which is in control of the locality must strive to mark its limits by signs displayed on its perimeter or on the main access roads. These localities are sometimes also called open towns. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 35 and 36–37.
In Book III, Volume 2 (Instruction of second-year trainee officers), the Teaching Manual provides:
In order to protect the civilian population as a whole or particularly vulnerable persons (the sick, wounded, infirm, elderly, children, etc.), it is possible, by common agreement between the parties, to establish safety zones, both during the conflict (for example in the form of an “open town”), or “demilitarized zones” in time of peace. Such zones must not be attacked militarily. On the other hand, they must also no longer be defended against the advancing of the enemy. Their only objective is to ensure the physical survival of the population which is sheltered there. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 21–22.
[emphasis in original]
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
II.3.3. Non-defended localities
A Party to the conflict may declare as a non-defended locality any inhabited place in or near a zone where armed forces are in contact. The non-defended locality is therefore open for occupation by the adverse Party. …
A non-defended locality must normally fulfil the following conditions:
- all combatants, as well as mobile weapons and mobile military equipment must have been evacuated;
- no hostile use shall be made of fixed military installations or establishments;
- no acts of hostility shall be committed by the authorities or by the population;
- no activities in support of military operations shall be undertaken.
However, the Parties to the conflict may agree on the establishment of non-defended localities even if these conditions are not respected. …
The Party which is in control of a non-defended locality shall mark it, so far as possible, by such signs as may be agreed upon with the other Party. These signs shall be displayed where they are clearly visible, especially on its perimeter and on roads. …
Any area loses its status as a non-defended locality if it ceases to respect the conditions described above or agreed between the adverse Parties regarding the establishment of non-defended localities. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 42.
France
France’s LOAC Manual (2001) is guided by Article 59 of the 1977 Additional Protocol I as regards the conditions that must be fulfilled in order for an area to be declared a non-defended locality. 
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. 31.
Germany
Germany’s Military Manual (1992) provides:
A locality shall be considered as non-defended if it has been declared so by its competent authorities, if it is open for occupation and fulfils the following conditions: all combatants, as well as mobile weapons and mobile military equipment, must have been evacuated; no hostile use shall be made of fixed military installations and establishments; no acts of hostility shall be committed by the authorities or by the population; and no activities in support of military operations shall be undertaken. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten KonfliktenHandbuch, August 1992, § 459.
The manual refers to Article 59(2) of the 1977 Additional Protocol I. It adds that “a locality shall not on suspicion be deemed non-defended unless the behaviour of the adversary substantiates such a supposition”.  
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten KonfliktenHandbuch, August 1992, § 460.
The manual goes on to say that, if one of the parties to the conflict breaches the provisions concerning the conditions for the establishment of non-defended localities, the locality in question will lose its special protection, even if the protection of the civilian population and civilian objects continue to be applicable. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten KonfliktenHandbuch, August 1992, § 462.
Kenya
Kenya’s LOAC Manual (1997), in a section entitled “Non-Defended Localities”, states:
Such areas are improvised protected zones from which military objectives and activities have been removed, and which:
-are situated near or in a zone where combat is taking place; and
-are open for occupation by the enemy.
They can be established through a unilateral declaration and notification thereof given to the enemy Party. However, for greater safety, formal agreements should be passed between the two Parties (under customary law and Hague regulations undefended localities that can be occupied, cannot be bombarded even if there is no notification).
The conditions to be fulfilled by both demilitarized zones and non-defended localities are the same in practice. They are:
a) that all combatants as well as mobile weapons and mobile military equipment must be evacuated;
b) that no hostile use shall be made of fixed military installations or establishments;
c) that no acts of hostility shall be committed by the authorities or by the population; and
d) that any activity linked to the military effort must cease. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, pp. 6-7.
Netherlands
The Military Manual (1993) of the Netherlands provides:
The authorities of a party to the conflict may declare as a non-defended locality any inhabited place near a zone where armed operations are launched. It is thus a unilateral declaration. Such a locality shall fulfil the following conditions:
(a) all combatants, as well as mobile weapons and mobile military equipment, must have been evacuated;
(b) no hostile use shall be made of fixed military installations or establishments;
(c) no acts of hostility shall be committed by the authorities or by the population; and
(d) no activities in support of military operations shall be undertaken.
The declaration shall be addressed to the adverse party and shall define the limits of the non-defended locality. The parties to the conflict may also decide by an agreement on the establishment of non-defended localities even if such localities do not fulfil the above-mentioned conditions.
A locality loses its status as a non-defended locality when it ceases to fulfil the conditions required or the conditions of the agreement concluded between the parties. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-15, § 13.
Netherlands
The Military Manual (2005) of the Netherlands states:
0552. 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.
0553. An undefended locality must meet the following conditions:
- all combatants, as well as mobile weapons and mobile military equipment must have been evacuated;
- no hostile use may be made of fixed military installations or establishments;
- no acts of hostility may be committed by the authorities or by the population;
- no activities in support of military operations may be undertaken. The declaration must be sent to the other side and must clearly state the boundaries of the locality.
In addition, the parties to a conflict may conclude agreements to create undefended localities, even if these do not meet all the conditions named above.
A locality loses undefended status if it no longer meets the set conditions or agreed terms. The presence in the locality of persons who enjoy special protection (e.g. civil defence personnel – see point 0556 below) and police units does not conflict with the conditions. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 0552–0553.
New Zealand
New Zealand’s Military Manual (1992) defines an “undefended place” as:
one from which all combatants, as well as mobile weapons and mobile military equipment, have been removed; where no hostile use is made of fixed military installations or establishments; where no hostile acts are committed by the authorities or the population; and where no activities in support of military operations are undertaken.
The manual specifies that such requirements “relate to places behind enemy lines, for if the place is in a combat zone and open to occupation by enemy forces, the problem does not arise”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, p. 4-15, § 412(6).
Furthermore, the manual notes that, while “under customary law, the adverse Party had to agree to treat a place as undefended, by the 1977 Additional Protocol I the appropriate authorities of a Party to the conflict may declare as undefended any inhabited place near or in a zone where the armed forces of the Parties are in contact, rendering it open for occupation by the adverse Party”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, p. 4-16, § 412(7).
Referring to the possibility, under Article 59(5) of the 1977 Additional Protocol I, that the parties to a conflict agree to treat as undefended any place which does not fulfil the conditions laid down in the 1977 Additional Protocol I, the manual states: “This provision merely confirms the position under customary law.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, p. 4-16, § 412(7), footnote 62.
Peru
Peru’s IHL Manual (2004) states:
When appropriate, special agreements should be made between the parties to the conflict or with neutral States in order to:
(e) permit the marking of non-defended localities … with distinctive signs. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 25.b.(2)(e).
The manual also states:
Improvised protected areas are places where there are no military objectives or activities and which are:
(a) located near or in a zone where armed forces are in contact;
(b) open for occupation by the enemy.
Such areas are called “non-defended localities”. Unlike demilitarized zones (for which an agreement is required), they can be set up by a unilateral declaration made to the adverse party, who must acknowledge receipt of the notification. For greater safety, however, it is recommended that formal agreements also be made for non-defended localities.
The requirements that must be met by demilitarized zones and non-defended localities are practically the same. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 27.h.(2).
Peru
Peru’s IHL and Human Rights Manual (2010) states:
When appropriate, special agreements should be made between the parties to the conflict or with neutral States in order to:
(e) Allow the marking with distinctive emblems of non-defended localities. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 26(2)(e), p. 233; see also § 92(b)(5), p. 294.
The manual also states:
Improvised protected areas are places where there are no military objectives or activities and which are:
(a) located near or in a zone where armed forces are in contact;
(b) open for occupation by the enemy.
Such areas are called “non-defended localities”. Unlike demilitarized zones (for which an agreement is required), they can be set up by a unilateral declaration made to the adverse party, who must acknowledge receipt of the notification. For greater safety, however, it is recommended that formal agreements also be made for non-defended localities.
The requirements that must be met by demilitarized zones and non-defended localities are practically the same. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 28(h)(2), p. 241; see also p. 408.
The manual further states: “When enemy land forces are advancing, the possibility of conceding non-defended zones to the enemy must be considered in order to avoid unnecessary loss of life or damage.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 31(d), p. 245.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
[N]on-defended locality is any inhabited place, proclaimed as such by a party to the conflict and situated in the zone of combat operations or nearby which is open for occupation by an adverse party. All combatants, as well as mobile military objectives must have been evacuated from the non-defended locality, no hostile use shall be made of fixed military objectives, no acts of hostility shall be committed by the authorities and the population, all military activities shall be terminated. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 1.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) defines non-defended localities as “areas left undefended in order to protect them and their inhabitants from damage and injury”. 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 28.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
2.6 Localities and Zones under Special Protection Demilitarised Zones, Non-defended Localities, and Demilitarised Zones
Non-Defended Localities (Article 59 [of the 1977 Additional Protocol I])
“Non-defended localities” are improvised protected inhabited areas from which military objectives and military activities have been removed, and which:
- Are situated near or in a zone where armed forces are in contact;
- Are open for occupation by the enemy.
Parties to the conflict may declare any inhabited place near or in a zone where armed forces are in contact and which is open for occupation by the enemy as a non-defended locality. Non-defended localities differ from demilitarised zones in that non-defended localities can be established through a unilateral declaration notified to the enemy, while demilitarised zones require an agreement between the Parties to the conflict. However, it is advisable to always make use of formal agreements, also for non-defended localities.
The following conditions must be met regarding such a locality:
- All combatants, as well as mobile weapons and mobile military equipment must be evacuated.
- Fixed military installations or establishments may not be used for hostile purposes.
- No acts of hostility may be committed by the authorities or by the population.
- No activities in support of military operations may be undertaken. However, the presence of specially protected persons and police forces retained for the sole purpose of maintaining law and order in this zone is not contrary to this condition.
The declaration of an area into a non-defended locality must be addressed to the enemy 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 must acknowledge receipt thereof and must treat the locality as a non-defended locality unless the conditions, as described in the previous paragraph, have not been de facto fulfilled, in which event it shall immediately inform the Party making the declaration thereof. However, even if these conditions are not fulfilled, the locality shall continue to enjoy the protection provided by the other provisions of the LOAC [law of armed conflict].
Parties to the conflict may agree to establish non-defended localities even if such localities do not fulfill the abovementioned conditions. Such an agreement should define and describe as precisely as possible the limits of the non-defended locality and if necessary it may lay down the methods of supervision.
The Party, which is in control of the non-defended locality governed by such an agreement, must clearly mark it by such signs as may be agreed upon with the Parties involved.
A non-defended locality shall lose its status when it ceases to fulfil the abovementioned conditions. However, if that should happen, the locality shall continue to enjoy the protection provided by the other provisions of the LOAC.
In view of the provisions of [1949] Geneva Convention IV articles 14 and 15 and Additional Protocol I articles 59 and 60, it is important that the different zones and localities are clearly distinguished from another as far as their physical location is concerned, but also with regard to their aims. Their aims can be summarised as follows:
- Hospital Zones. Provide permanent shelter to military and civilian wounded or sick.
- Safety Zones. Provide permanent shelter to certain specially protected categories of persons. These zones require special protection.
- Neutral Zones. Provide temporary protection in the combat zones to wounded and sick combatants, non-combatants and civilians not participating in hostilities.
- Non-defended and Demilitarised Zones. Provide permanent protection in and/or near the combat zones to non-combatants and civilians not participating in hostilities. A Party to the conflict establishes non-defended zones by means of a unilateral declaration, while demilitarised zones are established by a formal agreement between Parties.
All these zones have one thing in common, apart from the aim to protect persons, to wit, that they are all dependent on recognition by an adverse Party.
The idea with such zones started in 1870 with Henri Dunant, who suggested that certain towns be declared neutral and that wounded persons be collected there. It is difficult to declare such zones before a war, as it is difficult to ascertain the strategic situation before a war. However, nothing prevents States from establishing a number of such zones in time of peace and only utilising a few such zones (or all of them) in time of war.
It is possible to combine different types of zones in one area.
2.7 Special Protection: Occupied Territories
Responsibilities during Occupation
The Occupying Power has all the responsibilities of the legitimate State. Its responsibilities include to:
- Establish hospital and safety zones and non-defended localities in occupied territories, if the need arises. (Geneva Convention IV Article 14.) 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 147, 148–149, 150–151, 155 and 156–157; see also p. 152.
The manual also states:
Establishment and Protection of Protected Zones
- Preplanned protected zones are established by agreement between Parties to the conflict. …
- Parties to a conflict can also establish improvised protected zones. Such zones are areas from which military objectives and activities have been removed, and which
- Are situated near or in a zone where armed forces are in contact; and
- Are open for occupation by the enemy.
- Commanders must ensure that they take all necessary steps for the respect of such protected zones.
- Appropriate advice must be given to the civilian authorities regarding practical aspects and conditions to be fulfilled pertaining to such zones, such as who is responsible for the management of the zone, delimitation and marking of the perimeter, the removal of military personnel and equipment, access control, maintenance of public order and policing functions, supply, hygiene, keeping the public informed etc.
- In cases where the perimeter of the protected zone does not correspond to the official boundary of the town, district, etc. the civilian authority over such zone must be clearly established. Such an ad hoc area will require ad hoc authority with corresponding responsibilities.
- The zone perimeter must be clearly visible from the air and the ground, e.g. a beach, edge of a built-up area or forest, a road, river etc. Where necessary, the zone perimeter must be marked by agreed signs of sufficient size and visibility.
- All armed forces must be given precise instructions for behaviour regarding such protected zones when
- Leaving the protected zone;
- Abandoning it without fighting;
- Taking it over;
- Being prohibited from extending military operations to the zone; or
- When engaged in combat action in the vicinity of the zone. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 3, pp. 189–190.
Spain
Spain’s LOAC Manual (2007) states: “Any inhabited place near or in a zone where armed forces are in contact, which is open for occupation, can be declared a non-defended locality.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 1.3.e.(1).
The manual further states:
For a locality to be declared undefended, it must meet the following conditions:
- it must be evacuated by all military personnel and mobile military weapons and equipment;
- no hostile use can be made of fixed military facilities or establishments;
- both the authorities and the population must refrain from committing acts of hostility;
- no activity in support of military operations can be carried out in or from such places. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 4.5.b.(3).(b).
Sweden
Sweden’s IHL Manual (1991) states that “the chief rule relating to non-defended localities” embodied in Article 59 of the 1977 Additional Protocol I has the status of customary law. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3.
With respect to the setting-up of a non-defended locality, the manual recalls that it “shall not be preceded by negotiation between the parties, but it is based solely on a declaration issued by the defender”. The manual then states:
For the locality to receive protection, all military resistance must cease immediately. All combatants, together with mobile weapons and moveable material must be withdrawn. Fixed military installations and establishments such as fortifications may not be used against the other party … No hostile acts may be committed either by the authorities or by the local population, nor may any activities be undertaken in support of the withdrawing party’s military operations. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.4.3, p. 86.
According to the manual: “The above conditions imply that the locality is left open to occupation by the adversary.” 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.4.3, p. 87.
Switzerland
Switzerland’s Basic Military Manual (1987) states:
Through reciprocal specific declarations, the Parties to the conflict can designate non-defended localities or demilitarized zones (the latter already in peacetime). These localities or zones have to fulfil the following conditions:
a. all combatants, as well as mobile weapons and military equipment, must be evacuated;
b. no hostile use shall be made of fixed military installations or establishments;
c. no acts of hostility shall be committed by the authorities or by the population;
d. any activity in support to the military effort must cease;
e. the localities/zones must be marked by a distinctive sign.
Police forces may be maintained in these localities and zone for the purpose of maintaining law and order.
Non-defended localities/zones must not be abused for military purposes, for they will lose their protected status. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 32; see also Article 12(2).
Ukraine
Ukraine’s IHL Manual (2004) states:
“Non-defended localities” means any locality or inhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse Party.
All military objectives must be evacuated from a non-defended locality. Acts of hostility in such localities shall be prohibited.
Unlike demilitarized zones (created by mutual consent of the parties to the armed conflict), non-defended localities may be established by a unilateral declaration which shall be addressed to the adverse party (the latter shall acknowledge the receipt of such declaration). 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.50; see also § 1.2.51.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
5.38.1. The term “non-defended locality” has a special meaning. It is one where all the following conditions are met:
a. all combatants, as well as mobile weapons and mobile military equipment must have been evacuated;
b. no hostile use shall be made of fixed military installations or establishments;
c. no acts of hostility shall be committed by the authorities or by the population; and
d. no activities in support of military operations shall be undertaken.
5.38.2. This rule is an extension of the rule on undefended localities but depends on more formal arrangements. Where opposing ground forces are in contact, a commander might decide to withdraw from an inhabited area and allow the enemy to occupy it to avoid bloodshed among the civilian population or to preserve important historical or cultural sites. He can declare the place a non-defended locality.
5.38.3. The declaration of a non-defended locality should define as precisely as possible the limits of that locality and should be addressed to the adverse party who should acknowledge its receipt and then treat the locality as non-defended unless any of the conditions mentioned above is not fulfilled. In that event, it must inform the party making the declaration. It follows that a non-defended locality can be created without express agreement between the parties. It remains a non-defended locality until the party making the declaration withdraws it. Although no procedure for withdrawal is laid down, it should not take effect until notice of withdrawal has been given to the opposing party.
5.38.4. Even if all the conditions are not met, the parties may agree between themselves to treat an area as a non-defended locality. The agreement should be in writing and should specify the exact geographical limits of the locality, the date and time of the entry into force of the agreement and its duration, rules on marking the locality and agreed signs, persons authorized to enter the locality, methods of supervision (if any), whether and under what conditions the locality may be occupied by enemy troops.
5.38.5. If, in any case, an area is to be treated as non-defended, the party controlling it is responsible for marking it with agreed signs, especially on its perimeter and on highways. Some ingenuity will be required to devise signs visible from aircraft. Distinctive radio or electronic signals may be needed instead.
5.38.6. Even if it loses its non-defended status, the locality will benefit from other protection available under international law. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.38.1.–5.38.6.
With regard to internal armed conflict, the manual provides that (in addition to the prohibition on attacks against undefended localities) “[t]he other rules on protective zones applicable in international armed conflicts may be applied by analogy to internal armed conflicts”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 15.25.2.
United States of America
The US Air Force Pamphlet (1976) states:
A party to a conflict may declare, as undefended, inhabited localities which are near or in areas where land forces are in contact when the localities are open for occupation by an adverse party. Bombardment in such a locality would be unlawful, if the following conditions were met and maintained: (1) no armed forces or other combatants present, (2) no mobile weapons or mobile military equipment present, (2) no hostile use of fixed military establishments or installations, (4) no acts of warfare by the authorities or the population, and (5) no activities in support of military operations. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-3(e).
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) contains provisions regarding the establishment of undefended areas, which mirror the conditions prescribed by the 1977 Additional Protocol I. 
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, § 77.
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South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Israel
The Report on the Practice of Israel notes that during the Arab-Israeli conflict, no use was made of the concept of “non-defended localities” and that, as a consequence, Israel and the Israel Defense Forces (IDF) have no experience of this concept. 
Report on the Practice of Israel, 1997, Chapter 1.8.
Japan
According to the Report on the Practice of Japan, the Japanese Government explained to the Diet in 1984 that “authorities which may declare non-defended localities and may open them to enemy occupation are States party to a conflict or authorities responsible for the defense of the localities in question”. They are “generally speaking, States or military authorities”, but “a local government is not excluded from those authorities if it possesses command authority and has the power to promise an opponent not to defend itself”. 
Japan, Explanation by the Government at the House of Councillors Standing Committee on Foreign Affairs, 31 July 1984, Minutes of the House of Councillors Standing Committee on Foreign Affairs, No. 13, pp. 3–5, Report on the Practice of Japan, 1998, Chapter 1.8.
Serbia and Montenegro
In its oral pleadings before the ICJ in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) in 2006, Serbia and Montenegro stated:
As regards the safe areas actually proclaimed by the Security Council, and to which the Applicant refers in its Reply (Chap. 5, para. 174), admittedly these should not have been exposed to armed attack. At the same time, however, they should have been completely disarmed in order to be completely protected. 
Serbia and Montenegro, Oral pleadings before the ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), 15 March 2006, Verbatim Record CR 2006/19, p. 10, § 146.
Syrian Arab Republic
The Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers Article 59 of the 1977 Additional Protocol I to be part of customary international law. 
Report on the Practice of the Syrian Arab Republic, 1997, Chapter 1.8.
Yugoslavia, Federal Republic of
According to the Report on the Practice of the Federal Republic of Yugoslavia (FRY), “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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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that non-defended localities are “improvised protected zones … from which military objectives and activities have been taken out and which: a) are situated near or in a zone where armed forces are in contact; and b) are open for occupation by the enemy”. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 419.
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