Practice Relating to Rule 36. Demilitarized Zones
Section B. Attacks on demilitarized zones
Panmunjom Armistice Agreement
Article I(6) of the 1953 Panmunjom Armistice Agreement provides: “Neither side shall execute any hostile act … against the demilitarised zone”.
Agreement between the Commander-in-Chief, United Nations Command, on the one hand, and the Supreme Commander of the Korean People’s Army and the Commander of the Chinese People’s Volunteers, on the other hand, concerning a Military Armistice in Korea, Panmunjom, 27 July 1953, Article I(6).
Additional Protocol I
Article 60(1) of the 1977 Additional Protocol I provides:
It is prohibited for the Parties to the conflict to extend their military operations to zones on which they have conferred by agreement the status of demilitarized zone, if such extension is contrary to the terms of this agreement.
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 60(1). Article 60 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 215.
Additional Protocol I
Article 60(7) of the 1977 Additional Protocol I provides:
If one of the Parties to the conflict commits a material breach of the provisions of paragraphs 3 or 6 [concerning the conditions to be fulfilled by a zone to be established as a demilitarized zone and the prohibition to use the zone for purposes related to the conduct of military operations], the other Party shall be released from its obligations under the agreement conferring upon the zone the status of demilitarized zone. In such an eventuality, the zone loses its status but shall continue to enjoy the protection provided by the other provisions of this Protocol and the other rules of international law applicable in armed conflict.
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 60(7). Article 60 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 215.
Additional Protocol I
Under Article 85(3)(d) of the 1977 Additional Protocol I, “making … demilitarized zones the object of attack” is a grave breach of the Protocol.
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 85(3)(d). Article 85 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.44, 30 May 1977, p. 291.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Pursuant to Article 20(e)(iii) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, “[a]ttack, or bombardment, by whatever means, of … demilitarized zones” is a war crime.
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 20(e)(iii).
Argentina
Argentina’s Law of War Manual (1989) prohibits attacks on demilitarized zones by any means whatsoever and states that the prohibition of such attacks subsists only as long as such zones comply with the conditions set out in Article 60 of the 1977 Additional Protocol I.
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 4.06.
The manual further qualifies attacks against demilitarized zones as grave breaches of IHL.
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, § 8.03.
Australia
Australia’s Defence Force Manual (1994) states: “Generally, demilitarised zones are protected from attack.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 943; see also § 737 and Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 928.
The manual further provides that “making … demilitarised zones the object of attack” constitutes a grave breach or a serious war crime likely to warrant institution of criminal proceedings.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1315(k); see also Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1305(k).
Australia
Australia’s LOAC Manual (2006) states: “Generally, demilitarised zones are protected from attack.”
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.44.
The manual further states:
[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:
…
• making … demilitarised zones the object of attack.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.26.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Benin
Benin’s Military Manual (1995) prohibits attacks on demilitarized zones.
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule III, p. 12.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) lists “an attack against … demilitarized zones” as a violation of the law of war.
Burundi, Règlement n° 98 sur le droit international humanitaire
, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 46; see also Part I bis, pp. 68 and 115.
Cameroon
Cameroon’s Instructors’ Manual (1992) mentions the duty to avoid hostilities from the air over demilitarized zones and emphasizes that, while these zones cannot be made the object of an attack, it is also prohibited to launch an attack from a demilitarized zone.
Cameroon, Droit International Humanitaire et Droit de la Guerre, Manuel de l’Instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 113, § 423(1).
Cameroon
Cameroon’s Instructor’s Manual (2006) states that in air operations “[demilitarized zones] must not be the object of bombardments, nor constitute the basis for launching attacks”.
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 259, § 614.
The manual further states that “an attack against … demilitarized zones” constitutes a grave breach of IHL.
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, pp. 295–296, § 661.
Canada
Canada’s LOAC Manual (1999) states: “It is prohibited for parties to a conflict to conduct military operations in or to attack an area that they have agreed to treat as a demilitarized zone.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-11, § 115.
The manual further states that an area loses its status as a demilitarized zone if used “for purposes related to the conduct of military operations where it has agreed not to do so”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-11, § 118(b).
The manual considers that “making … demilitarized zones the object of attack” constitutes a grave breach 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. 16-3, § 16(d).
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
1. It is prohibited for parties to a conflict to conduct military operations in or to attack an area that they have agreed to treat as a demilitarized zone.
…
4. An area loses its status as a demilitarized zone where:
…
b. a party uses the demilitarized zone for purposes related to the conduct of military operations where it has agreed not to do so.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 457.1 and 4.b.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual provides that “making … demilitarized zones the object of attack” constitutes a grave breach of the 1977 Additional Protocol I.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1608.2.d.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police): “The following prohibitions must be respected: … attacking or bombarding … demilitarized zones”.
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter III, Section 1.
Chad
Chad’s Instructor’s Manual (2006) states that it is prohibited to attack “protected zones or areas”.
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 78.
The manual also states: “Military operations must be maintained at a distance from … demilitarized zones.”
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 93.
The manual further states that attacks on “demilitarized zones” are a grave breach of the 1977 Additional Protocol I and thus a war crime.
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 108.
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. …
Attacks against these zones or localities are prohibited.
…
IV.7. Demilitarized zones
These zones are areas in which combat is excluded, established in order to protect the civilian population against attacks … Demilitarized zones must not be occupied, nor used in any manner whatsoever for military purposes.
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 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 … it is possible, by common agreement between the parties, to establish safety zones … Such zones must not be attacked militarily. On the other hand, they must also no longer be defended against the advancing of the enemy.
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.3.4. Demilitarized zones
It is prohibited for the Parties to the conflict to lead military operations or attacks in an area which they have agreed to treat as a demilitarized zone.
…
A demilitarized zone must normally respect 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;
- any activity linked to the military effort must have ceased.
…
An area loses its status as a demilitarized zone if:
- one Party breaches the conditions described above;
- one Party uses the demilitarized zone for purposes linked to the conduct of military operations if it has agreed not to do so;
- one Party unilaterally revokes the status of demilitarized zone of an area when it has agreed not to do so.
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, pp. 42–43.
Croatia
Croatia’s Commanders’ Manual (1992) imposes a duty to issue appropriate instructions when military activities are conducted near demilitarized zones, in order to ensure the protection of such zones.
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, Article 48.
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states that the following “are currently considered as war crimes, … if committed against any person not or no longer participating in hostilities: … attacking … demilitarized zones”.
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 50.
Ecuador
Ecuador’s Naval Manual (1989) provides that demilitarized zones established by agreement must not be attacked.
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 8.5.1.3.
France
In prohibiting attacks against demilitarized areas, France’s LOAC Manual (2001) is guided by Article 60(1) of the 1977 Additional Protocol I.
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. 125.
Germany
Germany’s Military Manual (2001) provides that “it is prohibited for each party to the conflict to attack or occupy [demilitarized] zones”.
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 Konflikten – Handbuch, August 1992, § 461.
The manual points out that, if one of the parties to the conflict breaches the provisions concerning the conditions for the establishment of demilitarized zones, the zone in question will lose its special protection”.
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 Konflikten – Handbuch, August 1992, § 462.
The manual further provides that grave breaches of IHL are in particular “launching attacks against … demilitarized zones”.
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 Konflikten – Handbuch, August 1992, § 1209.
Hungary
Hungary’s Military Manual (1992) states: “Commanders shall issue orders and/or instructions to regulate behaviour in the vicinity of protected zones.”
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 65.
The manual further states that such zones “shall be respected and be taken over without combat”.
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 72.
Italy
Italy’s LOAC Elementary Rules Manual (1991) states:
Where protected zones or localities (… demilitarized zones …) have been agreed upon, the competent commanders shall issue instructions for action and behaviour near and towards such zones or localities.
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 47.
The manual also provides: “Protected zones shall be respected.”
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 70.
Italy
Italy’s IHL Manual (1991) qualifies “indiscriminate attacks against … demilitarized zones” as war crimes.
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 85.
Kenya
According to Kenya’s LOAC Manual (1997), demilitarized zones are protected from “attack and military operations”.
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 13.
Netherlands
The Military Manual (1993) of the Netherlands states: “The parties to the conflict are prohibited from extending their military operations to demilitarized zones.” It also states that “attacking … demilitarized zones” in violation of IHL constitutes a grave breach.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-16, § 14 and p. IX-5.
Netherlands
The Military Manual (2005) of the Netherlands states: “It is prohibited for the parties to a conflict to extend their military operations to demilitarized zones.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0554.
In its chapter on non-international armed conflict, the manual states: “It is prohibited to attack demilitarized zones.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1036.
In its chapter on peace operations, the manual states: “Terms such as undefended places, demilitarized zones and neutralized territory … are sometimes described in peace operations as safe havens or safe areas.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1221.
New Zealand
New Zealand’s Military Manual (1992) states:
Any material breach of [the conditions for a zone to be established as a demilitarized zone] releases the other Party from its obligations under the agreement and the zone loses its special status. It shall, however, continue to enjoy the normal protection provided by the customary and treaty law of armed conflict.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 412(5).
The manual further states that “making … demilitarized zones the object of attack” constitutes a grave breach of the 1977 Additional Protocol I.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1703(3)(d).
Nigeria
Nigeria’s Military Manual (1994) states: “Preplanned protected zones are established by agreement between belligerent parties … [including] demilitarised zones”.
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 43, § 14.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states: “objects protected by international humanitarian law include … demilitarized zones … Attacks against such objects are prohibited by international humanitarian law with the exception of cases stipulated by this law.”
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.
South Africa
South Africa’s LOAC Manual (1996) qualifies attacks against demilitarized zones as grave breaches of the 1977 Additional Protocol I.
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 41.
South Africa
South Africa’s Revised Civic Education Manual (2004) provides that “[a]ny attack on [a] demilitarised zone” is a grave breach of the law of armed conflict and a war crime.
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 57.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Special Protection in the Civilian Field
- The special protection regarding protection of civilians and civilian objects is aimed at[:]
…
- Ensuring the protection of a large number of civilians by prohibiting attacks;
…
- In demilitarised zones.
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, p. 56.
The manual also states:
5.1 War Crimes and Grave Breaches 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:
…
- Making non-defended localities and demilitarised zones the object of attack[.]
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 5, pp. 236–237.
Spain
According to Spain’s LOAC Manual (1996), demilitarized zones are areas in which military operations may not be carried out and against which attacks are prohibited. The manual refers to Article 60 of the 1977 Additional Protocol I.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, §§ 4.5.b.(3)(b) and 7.3.b.(5).
The manual further states that “launching an attack against demilitarized zones” constitutes a war crime. Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 11.8.b.(1).
Spain
Spain’s LOAC Manual (2007) states:
It is prohibited to extend military operations to zones on which the parties to the conflict have conferred by agreement the status of demilitarized zone, if such extension is contrary to the terms of the agreement.
…
If one of the parties commits an act of hostility in any such area or uses it for purposes relating to military operations, the other party is released from its obligations in this regard.
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); see also § 7.3.b.(5).
Switzerland
Switzerland’s Basic Military Manual (1987) prohibits attacks on demilitarized zones by any means.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 32(1).
The manual considers that demilitarized zones lose their protected status as soon as they are improperly used for military purposes.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 32(4).
The manual further provides that “launching an attack against … demilitarized zones” constitutes a grave breach of the 1977 Additional Protocol I.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 193(1)(d).
Togo
Togo’s Military Manual (1996) prohibits attacks on demilitarized zones.
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule III, p. 12.
Ukraine
Ukraine’s IHL Manual (2004) states: “Attacks against or hostilities within … demilitarized zones shall be prohibited.”
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.50; see also §§ 1.2.51 and 1.8.5.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
It is prohibited for the Parties to the conflict to extend their military operations to zones on which they have conferred by agreement the status of demilitarized zone, if such extension is contrary to the terms of this agreement.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.39.
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.
In its chapter on enforcement of the law of armed conflict, the manual notes:
Additional Protocol I extends the definition of grave breaches to include the following:
…
b. any of 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:
…
(4) making non-defended localities and demilitarized zones the object of attack.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.25.
United States of America
The US Air Force Pamphlet (1976) states:
Doubtless the creation of [safety or demilitarized] zones would be one of the most effective measures to enhance protection of one’s own civilian population, and if the conditions required to make a zone were fulfilled and maintained, virtually all civilian casualties would be avoided in this zone.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-4(c).
United States of America
The US Air Force Commander’s Handbook (1980), in a section entitled “Neutralized and Demilitarized Zones”, provides:
By agreement, the parties to a conflict may establish certain zones where civilians, the sick and wounded, or other noncombatants may gather to be safe from attack.
A party to conflict cannot establish such a zone by itself; neutralized zones need only be respected if established by agreement between the parties, either in oral or written, or by parallel declarations. Such an agreement may be concluded either before or during hostilities.
United States forces need not respect such a zone unless the United States has agreed to respect it. Even in an unrecognized zone, of course, only legitimate military objectives … may be attacked.
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 3-6(b).
United States of America
The US Naval Handbook (1995) provides: “An agreed demilitarized zone is also exempt from bombardment.”
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 8.5.1.3; see also § 8.6.2.2 (protected places and objects).
United States of America
The US Naval Handbook (2007) states: “An agreed demilitarized zone is also exempt from bombardment.”
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.9.1.3.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) prohibits attacks against demilitarized zones.
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, § 78.
Armenia
Under Armenia’s Penal Code (2003), “targeting … demilitarized zones” during an armed conflict constitutes a crime against the peace and security of mankind.
Armenia, Penal Code, 2003, Article 390.3(4).
Australia
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides that “a person who, in Australia or elsewhere, commits a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence”.
Australia, Geneva Conventions Act, 1957, as amended in 2002, Section 7(1).
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act 1995.
Australia
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to war crimes that are grave breaches of 1977 Additional Protocol I:
268.98 War crime – attacking undefended places or demilitarized zones
A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks one or more towns, villages, dwellings, buildings or demilitarized zones; and
(b) the towns, villages, dwellings or buildings are open for unresisted occupation; and
(c) the attack results in death or serious injury to body or health; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.98, p. 371.
Australia
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the list of war crimes of the Criminal Code grave breaches of the 1977 Additional Protocol I, including “attacking … demilitarised zones”.
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.98.
Azerbaijan
Azerbaijan’s Criminal Code (1999) provides that “directing attacks against … demilitarized zones” constitutes a war crime in international and non-international armed conflicts.
Azerbaijan, Criminal Code, 1999, Article 116(7).
Belarus
Belarus’s Criminal Code (1999) provides that it is a war crime to “direct attacks against demilitarized zones”.
Belarus, Criminal Code, 1999, Article 136(2).
Belgium
Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (1993), as amended in 1999, provides that “making demilitarized zones the object of attack” constitutes a crime under international law.
Belgium, Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1993, as amended in 1999, Article 1(3)(14).
Belgium
Belgium’s Penal Code (1867), as amended in 2003, provides:
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 … :
24. making demilitarized zones … the object of attack or bombardment, by whatever means …
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 quater, § 1(24).
Belgium
Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
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 … :
14. making demilitarized zones … the object of attack or bombardment, by whatever means …
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 ter, § 1(14).
Bosnia and Herzegovina
Under the Federation of Bosnia and Herzegovina’s Criminal Code (1998), it is a war crime to order that “demilitarized zones be indiscriminately targeted” or to carry out such targeting.
Bosnia and Herzegovina, Federation, Criminal Code, 1998, Article 154(2).
The Republika Srpska’s Criminal Code (2000) contains the same provision.
Bosnia and Herzegovina, Republika Srpska, Criminal Code, 2000, Article 433(2).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) contains the following war crimes provision:
Whoever, in violation of the rules of international law in time of war or armed conflict, orders or perpetrates any of the following acts:
…
b) Targeting indiscriminately … demilitarized zones;
…
shall be punished by imprisonment for a term of not less than ten years or long-term imprisonment.
Bosnia and Herzegovina, Criminal Code, 2003, Article 173(2)(b).
Canada
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides: “Every person who, whether within or outside Canada, commits a grave breach [of the 1977 Additional Protocol I] … is guilty of an indictable offence.”
Canada, Geneva Conventions Act, 1985, as amended in 2007, Section 3(1).
Cook Islands
The Geneva Conventions and Additional Protocols Act (2002) of the Cook Islands punishes “any person who in the Cook Islands or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach … of [the 1977 Additional Protocol I]”.
Cook Islands, Geneva Conventions and Additional Protocols Act, 2002, Section 5(1).
Croatia
Under Croatia’s Criminal Code (1993), “indiscriminate attacks affecting … demilitarized zones” are war crimes.
Croatia, Criminal Code, 1993, Article 120(2).
Croatia
Croatia’s Criminal Code (1997), as amended to 2006, states that a war crime is committed by “whoever violates the rules of international law in time of war, armed conflict or occupation by ordering [or committing] an attack against … demilitarized zones”.
Croatia, Criminal Code, 1997, as amended in June 2006, Article 158(2).
Cyprus
Cyprus’s Additional Protocol I Act (1979) punishes “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”.
Cyprus, Additional Protocol I Act, 1979, Section 4(1).
Czech Republic
The Czech Republic’s Criminal Code (1961), as amended in 1999, provides for the punishment of “a commander who, contrary to the provisions of international law on means and methods of warfare, intentionally: … (b) leads an attack against a … demilitarized zone”.
Czech Republic, Criminal Code, 1961, as amended in 1999, Article 262(2)(b).
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Article 165
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.
Article 166
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:
…
13. Making non-defended localities and demilitarized zones the object of attack;
…
Article 167
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.
Democratic Republic of the Congo, Military Penal Code, 2002, Articles 165–167.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
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].
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
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].
Denmark, Military Criminal Code, 2005, § 36(2).
Estonia
Under Estonia’s Penal Code (2001), “an attack against … a demilitarized zone” is a war crime.
Estonia, Penal Code, 2001, § 106.
Georgia
Under Georgia’s Criminal Code (1999), “making … demilitarized zones the object of attack” in an international or non-international armed conflict is a punishable crime.
Georgia, Criminal Code, 1999, Article 411(1)(d).
Germany
Germany’s Law Introducing the International Crimes Code (2002) provides for the punishment of anyone who, “in connection with an international armed conflict or with an armed conflict not of an international character, … directs an attack by military means against … demilitarized zones”.
Germany, Law Introducing the International Crimes Code, 2002, Article 1, § 11(1)(2).
Hungary
Under Hungary’s Criminal Code (1978), as amended in 1998, “a military commander who, in violation of the rules of international law concerning warfare, … takes offensive against … a weapon-free zone” commits a war crime.
Hungary, Criminal Code, 1978, as amended in 1998, Section 160(b).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that grave breaches of the 1977 Additional Protocol I are punishable offences.
Ireland, Geneva Conventions Act as amended, 1962, Section 3(1).
The Act adds that any “minor breach” of the 1977 Additional Protocol I, including violations of Article 60, is also a punishable offence.
Ireland, Geneva Conventions Act as amended, 1962, Section 4(1) and (4).
Jordan
Jordan’s Military Penal Code (2002) states that the following shall be deemed a war crime when committed in the event of armed conflict: “Intentionally directing attacks on … demilitarized zones”.
Jordan, Military Penal Code, 2002, Article 41(a)(12).
Lithuania
Under Lithuania’s Criminal Code (1961), as amended in 1998, “a military attack against … a demilitarized zone” constitutes a war crime.
Lithuania, Criminal Code, 1961, as amended in 1998, Article 337.
Netherlands
Under the International Crimes Act (2003) of the Netherlands, it is a crime, during an international armed conflict, to commit “the following acts, when they are committed intentionally and in violation of the relevant provisions of Additional Protocol (I) and cause death or serious injury to body or health: … making … demilitarized zones the object of attack”.
Netherlands, International Crimes Act, 2003, Article 5(2)(c)(iv).
New Zealand
New Zealand’s Geneva Conventions Act (1958), as amended in 1987, provides:
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.
New Zealand, Geneva Conventions Act, 1958, as amended in 1987, Section 3(1).
Niger
According to Niger’s Penal Code (1961), as amended in 2003, “putting under attack … demilitarized zones” is a war crime.
Niger, Penal Code as amended, 1961, Article 208.3(14).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
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.
Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).
Norway
Norway’s Penal Code (1902), as amended in 2008, states: “Any person is liable to punishment for a war crime who in connection with an armed conflict … directs an attack … against demilitarised zones.”
Norway, Penal Code, 1902, as amended in 2008, § 106(e).
Peru
Peru’s Military and Police Criminal Code (2010), in a chapter entitled “Crimes involving the use of prohibited methods in the conduct of hostilities”, states:
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:
…
2. Attacks by any means civilian objects, provided that they are protected as such under International Humanitarian Law, in particular … demilitarized zones.
Peru, Military and Police Criminal Code, 2010, Article 91(2).
Rwanda
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
Article: 8
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:
…
11° making duly agreed non-defended localities or demilitarized zones the object of attack, by whatever means;
…
Article: 9
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.
Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Articles 8–9.
Serbia
Serbia’s Criminal Code (2005) states that ordering or committing an attack against “demilitarized zones”, in violation of international law, constitutes a war crime.
Serbia, Criminal Code, 2005, Article 372(2).
Sierra Leone
Sierra Leone’s Geneva Conventions Act (2012) states:
2. Grave breaches of the [1949 Geneva] Conventions and the [1977] First [Additional] Protocol.
(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 –
…
(e) … paragraph … 3 … of Article 85 of the First Protocol [on, inter alia, the grave breach of making non-defended localities and demilitarized zones the object of attack].
Sierra Leone, Geneva Conventions Act, 2012, Section 2(1)(e).
Slovakia
Slovakia’s Criminal Code (1961), as amended, provides for the punishment of “a commander who, contrary to the provisions of international law on means and methods of warfare, intentionally: … (b) leads an attack against a … demilitarized zone”.
Slovakia, Criminal Code, 1961, as amended, Article 262(2)(b).
Slovenia
Under Slovenia’s Penal Code (1994), “a random attack … on demilitarized areas” is a war crime.
Slovenia, Penal Code, 1994, Article 374(2).
South Africa
South Africa’s Implementation of the Geneva Conventions Act (2012) states:
5. Breach of Conventions and penalties
(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 –
…
(e) a grave breach referred to in Article … 85 of [the 1977 Additional] Protocol I.
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 5(1)–(2)(e).
Spain
Spain’s Penal Code (1995) provides for the punishment of “anyone who, in the event of armed conflict, should … knowingly violate the protection due to … demilitarized zones … which are duly identified with signs or the appropriate distinctive signals”.
Spain, Penal Code, 1995, Article 612(1).
Spain
Spain’s Penal Code (1995), as amended in 2003, states:
Anyone who [commits any of the following acts] during armed conflict shall be punished with three to seven years’ imprisonment:
1. Knowingly violating the protection owed to … demilitarized zones which are marked by the appropriate distinctive signs.
Spain, Penal Code, 1995, as amended on 25 November 2003, Article 612(1).
Switzerland
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”:
Art. 110
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.
…
Art. 112
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:
…
c. … demilitarized zones that are not military objectives.
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 110 and 112(1)(c).
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states under the title “War crimes”:
Art. 264b
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.
…
Art. 264d
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:
…
c. … demilitarized zones that are not military objectives.
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 264b and 264d (1)(c).
Tajikistan
Tajikistan’s Criminal Code (1998), in the section on “Serious violations of international humanitarian law”, provides for the punishment of “wilful breaches of norms of international humanitarian law committed in an international or non-international armed conflict, i.e. … making … demilitarized zones the object of attack”.
Tajikistan Criminal Code, 1998, Article 403(1).
United Kingdom of Great Britain and Northern Ireland
The UK Geneva Conventions Act (1957), as amended in 1995, punishes
any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of, a grave breach of … [the 1977 Additional Protocol I].
United Kingdom, Geneva Conventions Act, 1957, as amended in 1995, Section 1(1).
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
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:
…
41. Launching attacks against demilitarized zones.
Uruguay, Law on Cooperation with the ICC, 2006, Article 26.2 and 26.3.41.
Yemen
Yemen’s Military Criminal Code (1998), in a part on war crimes, provides for the punishment of “unjustified attacks against demilitarized zones”.
Yemen, Military Criminal Code, 1998, Article 21(8).
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, provides for the punishment of “any person who may order the following in violation of the rules of international law during armed conflict or occupation: … indiscriminate attacks on … demilitarized zones”.
Yugoslavia, Socialist Federal Republic, Penal Code, 1976, as amended in 2001, Article 142(2).
Zimbabwe
Zimbabwe’s Geneva Conventions Act (1981), as amended in 1996, punishes “any person, whatever his nationality, who, whether in or outside Zimbabwe, commits any such grave breach of … [the 1977 Additional Protocol I]”.
Zimbabwe, Geneva Conventions Act, 1981, as amended in 1996, Section 3(1).
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.
Venezuela
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated:
[The] … laws [of war] prohibit attacks on civilians or persons uninvolved in the conflict and on non-military targets … In order to avoid harming the latter, specific zones are drawn and some are declared off-limits: … [such as] demilitarized [zones].
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, p. 8.
Angola
The Report on the Practice of Angola notes that Article 60 of the 1977 Additional Protocol I prohibits attacks against demilitarized zones.
Report on the Practice of Angola, 1998, Chapter 5.
Bosnia and Herzegovina
In a letter dated 6 March 1994 addressed to the UNPROFOR Command, the Commander-in-chief of the Headquarters of Bosnian Armed Forces denounced the killing and imprisonment of civilians in the demilitarized zones of Srebrenica and Žepa. The UN forces were requested to re-establish the previous positions of the lines, which had been shifted by the adverse party in the attempt to take over the demilitarized zone, and to deploy observers in the zones.
Report on the Practice of Bosnia and Herzegovina, 2000, Chapter 1.8.
Botswana
The Report on the Practice of Botswana states that demilitarized zones established by agreement between the belligerents shall not be attacked.
Report on the Practice of Botswana, 1998, Chapter 1.8.
Democratic People’s Republic of Korea
In 1996, in a letter to the President of the UN Security Council, the Democratic People's Republic of Korea transmitted a statement concerning the situation in the area of the military demarcation line. In the statement, claiming that the military authorities of the Republic of Korea had disregarded the armistice agreement, the spokesperson of the Panmunjom Mission of the Korean People’s Army drew up a list of alleged violations of the demilitarized zone. He declared, inter alia, that the Republic of Korea had introduced tanks, various kinds of artillery pieces and heavy weapons, as well as a large number of armed military personnel, into the zone, and had even built large military facilities there. According to the spokesperson, the area’s status did not correspond to the real meaning of a demilitarized zone since it had been armed and turned into a new attack position. The spokesperson thus stated that the Korean People’s Army did not consider itself any longer bound by the article of the armistice agreement concerning the demilitarized zone, and announced that since the status of this zone could not be maintained any longer, “self-defensive measures” would be considered.
Democratic People’s Republic of Korea, Letter dated 5 April 1996 to the President of the UN Security Council, UN Doc. S/1996/253, 8 April 1996.
Egypt
According to the Report on the Practice of Egypt, “Egypt thinks that protection of … demilitarized zones … consists in refraining from launching attacks against … these areas”, which implies that “attacks against such places are prohibited”.
Report on the Practice of Egypt, 1997, Chapter 1.8.
Islamic Republic of Iran
The Report on the Practice of the Islamic Republic of Iran notes that the Islamic Republic of Iran objected on several occasions to the bombardment of demilitarized zones by Iraqi forces during the Iran–Iraq War, but adds that no other relevant practice could be found in this regard and that, therefore, no conclusion can be drawn from Iranian practice concerning the prohibition on the targeting of demilitarized zones.
Report on the Practice of the Islamic Republic of Iran, 1997, Chapter 1.8.
Nigeria
The Report on the Practice of Nigeria states that it is Nigeria’s opinio juris that the protection of demilitarized zones is part of customary international law.
Report on the Practice of Nigeria, 1997, Chapter 1.8.
Pakistan
The Report on the Practice of Pakistan notes that a demilitarized zone was created under the 1949 Karachi Agreement. The report emphasizes that Pakistan has been respecting the said zone and has periodically reported violations of it by India to the UN Observer Group. The report, referring to a statement by a spokesperson of Pakistan’s Foreign Office made in 1997, also underlines that Pakistan has formally opposed any suggestion of terminating UNMOGIP.
Report on the Practice of Pakistan, 1998, Chapter 1.8, referring to Statement by the Foreign Office spokesperson, 24 April 1997.
Rwanda
The Report on the Practice of Rwanda notes that, although no practice was found regarding demilitarized zones, the President of the Military Tribunal confirmed that such zones would be protected according to the modalities agreed upon by the belligerents.
Report on the Practice of Rwanda, 1997, Chapter 1.8, referring to an interview with the President of Rwanda’s Military Tribunal, 23 October 1997.
Syrian Arab Republic
The Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers Article 60 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.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support the principle that attacks shall not be made against appropriately declared or agreed demilitarized zones.”
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 427.
United States of America
The Report on US Practice considers that US opinio juris generally conforms to the rules and conditions prescribed in Article 60 of the 1977 Additional Protocol I.
Report on US Practice, 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 an attack against a demilitarized zone constitutes a grave breach of the law of war.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 418.
ICRC
In a working paper on war crimes submitted in 1997 to the Preparatory Committee for the Establishment of an International Court, the ICRC proposed that “making demilitarized zones the objects of attack”, when committed in an international armed conflict, be subject to the jurisdiction of the Court.
ICRC, Working paper on war crimes submitted to the Preparatory Committee for the Establishment of an International Criminal Court, New York, 14 February 1997, § 1(b)(iv).
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