Practice Relating to Rule 37. Open Towns and Non-Defended Localities
New Zealand’s Military Manual (1992) defines an “undefended place” as:
one from which all combatants, as well as mobile weapons and mobile military equipment, have been removed; where no hostile use is made of fixed military installations or establishments; where no hostile acts are committed by the authorities or the population; and where no activities in support of military operations are undertaken.
The manual specifies that such requirements “relate to places behind enemy lines, for if the place is in a combat zone and open to occupation by enemy forces, the problem does not arise”.
Furthermore, the manual notes that, while “under customary law, the adverse Party had to agree to treat a place as undefended, by the 1977 Additional Protocol I the appropriate authorities of a Party to the conflict may declare as undefended any inhabited place near or in a zone where the armed forces of the Parties are in contact, rendering it open for occupation by the adverse Party”.
Referring to the possibility, under Article 59(5) of the 1977 Additional Protocol I, that the parties to a conflict agree to treat as undefended any place which does not fulfil the conditions laid down in the 1977 Additional Protocol I, the manual states: “This provision merely confirms the position under customary law.”
New Zealand’s Military Manual (1992) recalls: “The law of armed conflict forbids attack by any means of undefended places.”
The manual provides:
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.
The manual further states that “making non-defended localities … the object of attack” constitutes a grave breach of the 1977 Additional Protocol I.
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.
Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crime defined in Article 8(2)(b)(v) of the 1998 ICC Statute.