Practice Relating to Rule 37. Open Towns and Non-Defended Localities
Section B. Establishment of non-defended localities
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.
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’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.
In its chapter entitled “Communications and contact between opposing forces”, the manual further states:
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.