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

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:

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. 

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. 

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. 

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. 

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.  

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:

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. 

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:

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:

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. 

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:

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:

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. 

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:

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. 

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.

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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. 

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:

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.

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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. 

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.  [emphasis in original]

II.3.3. Non-defended localities

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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:

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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. 

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. 

Such areas are improvised protected zones from which military objectives and activities have been removed, and which:

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).

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The conditions to be fulfilled by both demilitarized zones and non-defended localities are the same in practice. They are:

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:

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. 

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:

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. 

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.

When appropriate, special agreements should be made between the parties to the conflict or with neutral States in order to:

Improvised protected areas are places where there are no military objectives or activities and which are:

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. 

When appropriate, special agreements should be made between the parties to the conflict or with neutral States in order to:

Improvised protected areas are places where there are no military objectives or activities and which are:

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. 

[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. 

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“Non-defended localities” are improvised protected inhabited areas from which military objectives and military activities have been removed, and which:

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:

- 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.

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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:

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.

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The Occupying Power has all the responsibilities of the legitimate State. Its responsibilities include to:

- Preplanned protected zones are established by agreement between Parties to the conflict. …

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- 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

- 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

For a locality to be declared undefended, it must meet the following conditions:

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. 

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:

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. 

“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). 

5.38.1. The term “non-defended locality” has a special meaning. It is one where all the following conditions are met:

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. 

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. 

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.

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The accused’s position is stated to be that this Court has no jurisdiction to try him.

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… 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. …

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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.

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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. …

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… 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.

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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.

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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. …

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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

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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.

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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. …

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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].

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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. 

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.

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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:

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.  [footnotes in original omitted]

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. 

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. 

Military objectives within a non-defended locality, from which hostile acts are being conducted, can be attacked, subject to weapon and targeting considerations … Otherwise, non-defended localities cannot be attacked. 

5.37 Towns, villages, dwellings or buildings which are undefended are also protected from attack …

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7.27 The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited. The reason for this rule is that there is no military need to attack a place that is not being defended. It can simply be occupied without resistance or bypassed. The concept of an undefended place does not apply to places in rear areas behind enemy lines. It applies only to places that are open to occupation by ground forces.

7.28 It is prohibited for parties to a conflict to attack, by any means whatsoever, non-defended localities.

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7.35 Attack on towns, villages, habitations or buildings that are undefended is prohibited unless they have become military objectives. 

[The 1977 Additional Protocol I] extends the definition of grave breaches to include the following … acts when committed wilfully, in violation of the relevant provisions of the protocol, and causing death or serious injury to body or health:

1. It is prohibited for parties to a conflict to attack, by any means whatsoever, non-defended localities.

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3. A […] non-defended locality must normally satisfy the following conditions:

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.

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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. 

IV.2. Protected zones

The law of armed conflicts makes provision for various protected zones or localities. … 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 localities are sometimes also called open towns. 

In order to protect the civilian population as a whole or particularly vulnerable persons … 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.  [emphasis in original]

II.3.3. Non-defended localities

It is prohibited for the Parties to the conflict to attack, by any means whatsoever, 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. …

…

Any area loses its status as 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. 

Belligerents are forbidden to bombard a city or town that is undefended and that is open to immediate entry by their own or allied forces. A city or town behind enemy lines is, by definition, neither undefended nor open, and military targets therein may be destroyed or bombarded. 

1. … [T]he provisions of the otherwise obsolete IX Hague Convention concerning the respect and protection of the victims of armed conflict should be considered as bearing a perpetual binding effect.

2. To the above effect, the significance of the codified text of IX Hague Convention is great and the following provisions should be applied by the belligerents:

The bombardment of undefended towns, villages and buildings is prohibited if:

Where protected zones or localities (… non-defended localities) have been agreed upon, the competent commanders shall issue instructions for action and behaviour near and towards such zones or localities. 

Parties to a conflict are prohibited from attacking undefended localities. This is a development of the older “open city” doctrine …

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. 

A locality which ceases to fulfil the conditions laid down for it to qualify as an undefended place, loses its status, but remains protected by the other rules of armed conflict relating to bombardment, attack, means and methods of combat, and the like. 

Article 59 of [the 1977] Additional Protocol I places a prohibition on the Parties to the conflict to attack non-defended localities by any means whatsoever.

…

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 [law of armed conflict]. 

…

- [1977] Additional Protocol I article 85 provides further examples of grave breaches, in that it stipulates that the following acts shall be regarded as grave breaches when committed willfully, and causing death or serious injury to body or health:

“The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.” The reason for this rule is that there is no military need to attack a place that is not being defended. It can simply be occupied without resistance or bypassed.

…

“It is prohibited for the Parties to the conflict to attack, by any means whatsoever, non-defended localities.” 

15.25. It is prohibited to attack or bombard, by whatever means, towns, villages, dwellings, or buildings that are undefended.

15.25.1. If a town, village, or building is undefended and can be occupied without resistance, there is no need to attack it and it is prohibited to do so. It is also prohibited to attack buildings unless they are military objectives. Undefended towns and villages that cannot be occupied because they are behind enemy lines or are in areas controlled by enemy forces may also not be attacked as such. Attacks against specific military objectives in those towns and villages are permitted, though precautions must be taken to minimize incidental loss or damage.

15.25.2. The other rules on protective zones applicable in international armed conflicts may be applied by analogy to internal armed conflicts. 

Additional Protocol I extends the definition of grave breaches to include the following:

In addition to the “grave breaches” of the Geneva Conventions of 1949, the following acts are representative of violations of the law of war (“war crimes”):

Cities behind enemy lines and not open to occupation may contain military objectives. The application of this undefended rule to aerial warfare, where the object of the attack was not to occupy the city but to achieve some specific military advantage by destroying a particular military objective, caused disagreements in the past. In the US view, it has been recognized by the practice of nations that any place behind enemy lines is a defended place because it is not open to unopposed occupation. Thus, although such a city is incapable of defending itself against aircraft, nonetheless if it is in enemy held territory and not open to occupation, military objectives in the city can be attacked. 

Towns, villages, cities, refugee camps, and other areas containing a concentration of civilians should not be bombarded if they are undefended and open to occupation or capture by friendly ground forces in the vicinity. Any military objectives that might exist in these towns (for example, military supplies) can be seized or destroyed by the ground forces. 

The attack or shelling by any means whatsoever of undefended towns, villages, dwellings, or buildings is prohibited. This means that military targets can be attacked wherever they are located, but a town with no military targets must be spared. 

Belligerents are forbidden to bombard a city or town that is undefended and that is open to immediate entry by their own or allied forces. A city or town behind enemy lines is, by definition, neither undefended nor open, and military targets therein may be destroyed or bombarded. 

Belligerents are forbidden to bombard a city or town that is undefended and that is open to immediate entry by their own or allied forces. A city or town behind enemy lines is, by definition, neither undefended nor open, and military targets therein may be destroyed by bombardment. 

A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for life. 

A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for life. 

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] …, as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

Whoever, in violation of the rules of international law in time of war or armed conflict, orders or perpetrates any of the following acts:

shall be punished by imprisonment for a term of not less than ten years or long-term imprisonment. 

[The following are] considered as war crimes:

…

B. Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts:

“War crimes” means crimes which are committed as part of a plan or policy or as part of a large-scale commission of such crimes, in particular:

any person who, whatever his nationality, commits in the Republic or outside the Republic any grave breach of the provisions of the Protocol, or takes part or assists or incites another person in the commission of such a breach. 

Crimes against humanity are grave violations of international humanitarian law committed against any civilian population before or during war.

Crimes against humanity are not necessarily linked to the state of war and can be committed not only between persons of different nationality, but even between subjects of the same State.

The grave breaches listed hereafter, affecting, by action or omission, the persons and objects protected by the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977, constitute crimes against humanity, repressed according to the provisions of the present Code, without prejudice to more severe penal provisions provided by the ordinary Penal Code:

The offences contained in the preceding article are punished with penal servitude for life.

If those contained in points 1, 2, 5, 6, 10 to 14 of the same article lead to the death or cause grave injury to the physical integrity or health of one or several persons, the perpetrators are liable to the death penalty. 

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

Any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence. 

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 

A member of the military or police shall be imprisoned for a period of no less than eight and no more than 15 years if he or she in the context of an international or non-international armed conflict:

A member of the military or the police shall be punished with deprivation of liberty of not less than six years and not more than twenty-five years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she:

A war crime is one of the following acts, committed during armed conflicts against persons or property protected under the Geneva Conventions of 12 August 1949 and its Additional Protocols I and II of 8 June 1977:

Shall be punished by one of the following penalties any person having committed one of the war crimes provided for in Article 8 of this law:

1° the death penalty or life imprisonment where he has committed a crime provided for in point 1°, 2°, 3°, 9°, 11° or 16° of Article 8 of this law. 

b) other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(1) A person of whatever nationality commits an offence if that person, whether within or outside Sierra Leone[,] commits, aids, abets or procures any other person to commit a grave breach specified in –

(1) Any person who, whether within or outside the Republic, commits a grave breach of the [1949 Geneva] Conventions, is guilty of an offence.

(2) For the purposes of subsection (1), “a grave breach” means –

Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.

…

1 The penalty shall be a custodial sentence of not less than three years for any person who in the context of an armed conflict directs an attack against:

Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.

…

1 The penalty shall be a custodial sentence of not less than three years for any person who in the context of an armed conflict directs an attack against:

26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.

26.3. The following are war crimes:

88 … [T]he defendant … is accused of [committing a] war crime by launching attacks against non-defended localities, which is a punishable act according to article 8(2)(b)(v) [of the 1998 ICC Statute]. The constitutive elements of this crime are:

89 … [I]n the present case, several villages were attacked and burned, including Nyankunde and seven other localities in the Groupement Musedzo, and the defendant … knew that those attacks were associated with an armed conflict. Therefore, this Court finds that there is sufficient evidence to establish substantial grounds to believe that the defendant committed a war crime by launching attacks against non-defendant localities. 

[T]he constitutional provisions of the Democratic Republic of the Congo, namely articles 153(4) and 215 of 18 February 2006 [Constitution (2006)], authorize both civil and military courts and tribunals to apply duly ratified international agreements and treaties, and give them higher authority than domestic legislation. This constitutional authorization combined with the self-executing nature of the … [1998 ICC] Statute justify the direct application of this treaty by Congolese courts and tribunals. 

Dropping an atomic bomb on undefended towns should … be deemed the same as blind bombing, if it is not an attack on defended towns. Such an act should be recognized as violating international law at that time. 

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. 

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:

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.  [footnotes in original omitted]

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. 

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.