Practice Relating to Rule 37. Open Towns and Non-Defended Localities
Section B. Establishment of non-defended localities
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”.
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”.
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.”