Practice Relating to Rule 24. Removal of Civilians and Civilian Objects from the Vicinity of Military Objectives
Note: For practice concerning the evacuation of the civilian population for security reasons, see Rule 129, Section B.
Additional Protocol I
Article 58(a) of the 1977 Additional Protocol I states that the parties to the conflict shall, to the maximum extent feasible, “without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives”.
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 58(a). Article 58 was adopted by 80 votes in favour, none against and 8 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 214.
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 8 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property provides: “The Parties to the conflict shall, to the maximum extent feasible: a) remove movable cultural property from the vicinity of military objectives or provide for adequate in situ protection.”
Second Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Article 8.
New Delhi Draft Rules
Article 11 of the 1956 New Delhi Draft Rules states:
The parties to the conflict shall, so far as possible, take all necessary steps to protect the civilian population subject to their authority from the dangers to which they would be exposed in attack – in particular by removing them from the vicinity of military objectives and from threatened areas. However, the rights conferred upon the population in the event of transfer or evacuation under Article 49 of the Fourth Geneva Convention of 12 August 1949 are expressly reserved.
Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, drafted by the International Committee of the Red Cross, September 1956, submitted to governments for their consideration on behalf of the 19th International Conference of the Red Cross, New Delhi, 28 October–7 November, Res. XIII, Article 11.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 58 of the 1977 Additional Protocol I.
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 58 of the 1977 Additional Protocol I.
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
Argentina
Argentina’s Law of War Manual (1989) states: “The parties to the conflict shall, to the extent possible, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives.”
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, § 4.07(2).
Australia
Australia’s Defence Force Manual (1994) requires commanders to remove civilians and civilian objects under their control “from the vicinity of military objectives”.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 556(a).
Australia
Australia’s LOAC Manual (2006) requires commanders to remove “civilians and civilian objects from the vicinity of military objectives”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.61.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Benin
Benin’s Military Manual (1995) states: “Civilians must be evacuated from zones located in proximity to military objectives.”
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule III, p. 12.
The manual repeats this rule and gives some further specifications to the effect that:
Civilian persons and objects must be separated from military objectives as far as possible … Civilian persons removed from the vicinity of military objectives shall be taken preferably to locations they know and which present no danger for them.
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule III, p. 15.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “civilians and civilian objects must be removed from military objectives”.
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. 64.
The Regulations also states: “Sufficient distance must be maintained between these [cultural] objects and military objectives. Moreover, they must be located at sufficient distance from important industrial centres or any important military objective.”
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. 87.
Cameroon
Cameroon’s Instructor’s Manual (1992) provides:
On the approach of the enemy or of combat towards zones of civilian habitation, the civilian population must be evacuated towards zones free of combat. The means and organization of this evacuation are the responsibility of the national civilian and military authorities. All persons must be evacuated, with priority given to women and children.
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. 67, § 242(1).
Cameroon
Cameroon’s Instructor’s Manual (2006) states: “At the approach of the enemy or in the case of combat in residential areas, the civilian population must be evacuated to zones outside the area of combat.”
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. 187, § 492.B.
Canada
Canada’s LOAC Manual (1999) states:
To protect civilians, the parties to a conflict shall, to the maximum extent feasible, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of legitimate targets.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-4, § 30(a).
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
To protect civilians, the parties to a conflict shall, to the maximum extent feasible:
a. endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of legitimate targets.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 421.1.a.
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): “Civilians must be evacuated from zones located in proximity to military objectives”.
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; see also Chapter III, Section 3.
Also in Volume 3, the manual states: “Civilian persons removed from the vicinity of military objectives must preferably be moved to familiar locations which do not present a danger to them.”
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 3.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):
IV.2.1. Obligations in the planning of defensive actions
… [P]ersons participating in the preparation or conduct of defensive operations must take into account the following demands defined by the law of armed conflict.
So far as possible, civilians must be removed from military objectives. The military shall warn the civilian population in advance and help in their evacuation. If possible, civilians shall be taken to places they know and which are not dangerous to them. Cooperation between civilian and military authorities may be necessary to provide food, methods of transport, or even accommodation for these civilians. Whenever it is possible, children should be evacuated with the families.
…
IV.3.2. The civilian population staying
The civilian population can choose to stay in a town under siege. In this case, the defenders have considerable responsibilities as regards protection. They must ensure that the civilian population is removed from the vicinity of military objectives and is not used as a human shield.
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. 49–51; see also 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. 71 and 72–73.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
In order to protect civilians, the Parties to the conflict shall, to the maximum extent feasible:
- endeavour to remove the civilian population, individual civilians and civilian objects under their control from legitimate objectives.
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, p. 29.
Croatia
Croatia’s Commanders’ Manual (1992) states: “Endangered civilian persons and objects shall be removed from military objectives.”
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 59.
Ecuador
Ecuador’s Naval Manual (1989) states: “Any party to an armed conflict must remove civilians and other noncombatants under its control from the vicinity of targets of likely enemy attacks.”
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 11.2.
France
France’s LOAC Summary Note (1992) states: “Civilians and civilian objects must be kept away from the dangers [resulting from military operations] and, if necessary, be removed from the vicinity of military objectives.”
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 1.4.
It further states: “The commander organizes the cooperation with the civilian authorities and sets the priorities, in particular with respect to the precautionary measures to be taken for the protection of civilian populations.”
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 5.2.
Israel
Israel’s Manual on the Laws of War (1998) states: “One should try and remove the civilian population from military targets.”
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 39.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
The rules of war have laid down a number of rules of engagement in a theatre of war containing civilians:
- An attempt should be made to move the civilian population away from military targets by distributing leaflets, issuing warnings through loudspeakers, giving sufficient notice of an attack, etc, unless there are overriding, compelling military needs (immediate attack, surprise attack).
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 27.
The manual further states: “Civilians must be removed from military targets so that they will not be harmed.”
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 36.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s LOAC Elementary Rules Manual (1991) states: “Endangered civilian persons and objects shall be removed from military objectives.”
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 59.
Kenya
Kenya’s LOAC Manual (1997) states: “Civilians should be removed from the vicinity of military objectives as far as possible.”
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 2.
The manual later repeats this rule and gives some additional specifications:
Civilian persons and objects shall be removed from military objectives. To that end, commanders shall seek the co-operation of the civilian authorities … Civilian persons removed from the vicinity of military objectives shall be taken preferably to locations they know and which present no danger for them. Civilian objects shall be removed primarily to locations outside the vicinity of military objectives.
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 9.
Madagascar
Madagascar’s Military Manual (1994) provides: “Civilian persons and objects shall be removed from military objectives.”
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 6-O, § 33.
Netherlands
The Military Manual (1993) of the Netherlands provides that one of the precautions against the effects of attacks consists of:
trying to evacuate the civilian population, individual civilians and civilian objects from the vicinity of military objectives … Although the physical separation of civilians and civilian objects from military objectives is an obvious measure for the protection of the population, it is nevertheless a measure that will often encounter great difficulties in densely populated areas. It is essential that the civilian population is not used as a human shield for military operations.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-12, § 10.
Netherlands
The Military Manual (2005) of the Netherlands states:
Section 8 - Precautions against (effects of) attacks
0549. Precautions when attacking
This is about the measures which a party to an armed conflict must take against the consequences of attacks on military objectives in the area under its control.
…
The precautions are as follows:
- to endeavour to remove the civilian population, individual civilians and civilian objects from the vicinity of military objectives.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0549.
[emphasis in original]The manual further states: “As far as possible, movable cultural property should be removed from the vicinity of military objectives, or otherwise suitably protected.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0530.
In its chapter on non-international armed conflict, the manual states: “They [participants in an internal armed conflict] must strive to remove the civilian population, individual civilians and civilian objects from the vicinity of military objectives, or otherwise offer sufficient protection.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1046.
New Zealand
New Zealand’s Military Manual (1992) states: “The Parties to the conflict shall, to the maximum extent feasible, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 519(1)(a).
Nigeria
Nigeria’s Military Manual (1994) considers that one of the aims and objectives of the 1949 Geneva Conventions is “to evacuate and prevent that civilians and civilian objects in conflict zones are attacked”.
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 6, § 6(d).
The manual further states: “Commander[s] shall seek the cooperation of civilians so as to remove them from [the vicinity of] military objectives.”
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 44, § 15.
Peru
Peru’s IHL Manual (2004) states: “Defending forces must minimize civilian casualties to the maximum extent feasible by … removing the civilian population from the vicinity of military objectives”.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 30.
The manual also states: “It is prohibited to use civilian objects to shield military operations.”
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 30.a.
The manual further states:
r. Movement of civilians
When civilians are moved away from military objectives, they should preferably be taken to locations they are familiar with and which pose no danger to them.
s. Movement of civilian objects
Civilian objects should preferably be moved to locations that are not in the vicinity of military objectives.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 30.r and s; see also § 106.
Peru
Peru’s IHL and Human Rights Manual (2010) states: “Defending forces must minimize civilian casualties to the maximum extent feasible by … removing the civilian population from the vicinity of military objectives”.
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 31, p. 245.
The manual also states: “It is prohibited to use civilian objects to shield military operations”.
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 31(a), p. 245.
The manual further states:
r. Movement of civilians
When civilians are moved away from military objectives, they should preferably be taken to locations they are familiar with and which pose no danger to them.
s. Movement of civilian objects
Civilian objects should preferably be moved to locations that are not in the vicinity of military objectives.
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 31(r)–(s), p. 247.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
To the greatest possible extent … the civilian population, individual civilians and civilian objects in the territory controlled by the military command shall be evacuated from the areas adjacent to military objectives.
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, § 54.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
[1977] Additional Protocol I article 58 determines that Parties to conflicts shall to the maximum extent feasible,
- Attempt to remove the civilian population, individual civilians, and civilian objects under their control from the vicinity of military objectives;
…
Protection of protected persons entails the following:
…
- Parties to conflicts shall to the maximum extent feasible attempt to remove the civilian population, individual civilians, and civilian objects under their control from the vicinity of military objectives, avoid locating military objectives within or near densely populated areas and take all necessary precautions to protect the civilian population, individual civilians, and civilian objects under their control against the dangers resulting from military operations.
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, pp. 119–120 and 124–125.
Spain
Spain’s LOAC Manual (1996) lists among the required precautionary measures to be taken in defence the duty “to remove, as far as possible, civilian persons or objects under military control from the vicinity of military objectives”.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, §§ 2.3.b.(4) and 4.5.a.(2).
Spain
Spain’s LOAC Manual (2007) states: “As far as possible, the civilian population, individual civilians and civilian objects under military control should be removed from the vicinity of military objectives.”
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, § 2.3.b.(4); see also § 4.5.a.(2).
Sweden
Sweden’s IHL Manual (1991) states: “The parties to the conflict shall endeavour to move the civilian population, civilian persons and civilian objects from the vicinity of military objectives.”
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.5, p. 73.
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “To the extent possible, that is, as far as the interests of Swiss national defence allow, … civilians close to military objectives will be removed”.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 29(3); see also Article 151(2)(a) and (3).
Switzerland
Switzerland’s Aide-Memoire on the Ten Basic Rules of the Law of Armed Conflict (2005) states: “I spare and protect civilians and keep them away from the combat zone.”
Switzerland, The Ten Basic Rules of the Law of Armed Conflict, Aide-memoire 51.007/IIIe, Swiss Army, issued based on Article 10 of the Ordinance for Organisation of the Federal Department for Defence, Civil Protection and Sports dated 7 March 2003, entry into force on 1 July 2005, Rule 6.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
165 The following precautionary measures must be taken into consideration when making decisions, when issuing orders and in particular when conducting military operations.
…
170 Anyone who acts in defence:
1 must endeavour, to the extent possible, to remove civilians and civilian objects from the vicinity of military works and objectives.
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 165 and 170(1). The German version of § 170(1) notes: “must endeavour, to the extent practically [praktisch] possible, to remove civilians as well as civilian objects [sowohl Zivilpersonen als auch zivile Objekte] from the vicinity of military objects and objectives [von militärischen Objekten und Zielen]”.
[emphasis in original]Togo
Togo’s Military Manual (1996) states: “Civilians must be evacuated from zones located in proximity to military objectives.”
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.
The manual repeats this rule and gives some further specifications to the effect that:
Civilian persons and objects must be separated from military objectives as far as possible … Civilian persons removed from the vicinity of military objectives shall be taken preferably to locations they know and which present no danger for them.
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule III, p. 15.
Ukraine
Ukraine’s IHL Manual (2004) states:
Civilian persons and civilian objects shall be removed from the locations of military objectives. To that end commanders (commanding officers) shall take all measures to interact with local authorities.
Removal of civilians from areas located near military objectives shall be performed to safe areas known to them.
If circumstances permit, effective warning of the defensive actions affecting the civilian population shall be made in advance (e.g. for evacuation of persons from certain buildings or areas).
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 2.3.2.1.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) provides: “Civilians should be removed from the vicinity of military objectives so far as possible.”
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 4, p. 14, § 4(d).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “Parties to a conflict are required, to the maximum extent feasible, to … endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives”.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.36.
United States of America
The US Air Force Pamphlet (1976) states:
As a corollary to the principle of general civilian immunity, the parties to a conflict should, to the maximum extent feasible, take necessary precautions to protect the civilian population, individual civilians, and civilian objects under their authority against the dangers resulting from military operations. Accordingly, they should endeavor to remove civilians from the proximity of military objectives … It is incumbent upon states, desiring to make protection of their own civilian population fully effective, to take appropriate measures to segregate and separate their military activities from the civilian population and civilian objects. Substantial military advantages may in fact be acquired by such separation.
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(a).
United States of America
The US Naval Handbook (1995) states:
A party to an armed conflict has an affirmative duty to remove civilians under its control as well as the wounded, sick, shipwrecked, and prisoners of war from the vicinity of targets of likely enemy attacks.
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), § 11.2.
United States of America
The US Naval Handbook (2007) states: “A party to an armed conflict has an affirmative duty to remove civilians under its control (as well as the wounded, sick, shipwrecked, and prisoners of war) from the vicinity of objects of likely enemy attack.”
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, § 8.3.2.
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).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 58(a), is a punishable offence.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Japan
Japan’s Civil Protection Law (2004) states:
1. If the Commissioner for Cultural Affairs deems that it is especially necessary to protect important cultural properties … important tangible folk cultural properties … or historic sites, places of scenic beauty and natural monuments … from destruction, damage, or other harm caused by armed attack disaster, the Commissioner may order or recommend owners, management representatives … or local governments or corporations managing important cultural properties … to change the locations or method of management of the important cultural properties etc. and take other necessary measures to protect them.
…
4. … [I]f owners etc. of national treasures … or special historic sites, places of scenic beauty and natural monuments … do not comply with the order, or the Commissioner for Cultural Affairs deems that it is not appropriate to have the owners etc. implement measures to protect national treasures or special historic sites, places of scenic beauty and natural monuments from destruction, damage or other harm, the Commissioner may implement necessary measures by himself/herself.
Japan, Civil Protection Law, 2004, Article 125(1) and (4).
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).
Philippines
The Philippines’ General Order No. 7 (2007) states:
Now, Therefore, I, Gloria M. Arroyo, President of the Philippines and Commander-in-Chief of all the armed forces of the Philippines, by the powers vested in me by the Constitution and the laws of the land, do hereby order:
1. Keep Basilan and Sulu operations firmly controlled to minimize civilian casualties, with NDCC [National Disaster Coordinating Council] help in evacuating them.
Philippines, General Order No. 7, 2007, preamble and Section 1.
Colombia
In 2006, in the Constitutional Case No. T-165/06, the First Appeals Chamber of Colombia’s Constitutional Court stated:
[The principles of distinction, limitation and proportionality] are found throughout IHL. Regarding the protection of victims in international or non-international armed conflicts, they materialize in concrete rules, such as … [the one] that: … binds the parties to a conflict to … take the precautionary measure against the effects of attacks of removing the civilian population and civilian objects from the vicinity of military objectives.
Colombia, Constitutional Court, Constitutional Case No. T-165/06, Judgment of 7 March 2006, p. 8
[footnote in original omitted]Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
The precautionary principle is the cornerstone of a number of specific rules which are considered to have attained customary status and to be applicable in internal armed conflicts … Among these rules is … the obligation of the parties to a conflict to remove, to the extent feasible, civilian persons and objects under their control from the vicinity of military objectives.
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 99.
[footnote in original omitted]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.
Australia
In 2009, in a ministerial statement before the House of Representatives on the situation in Sri Lanka, Australia’s Minister for Foreign Affairs stated:
Australia calls on all those involved in the fighting to make protecting civilians an absolute priority:
…
- All parties must ensure that civilians can leave the conflict zone safely.
… Australia calls on the LTTE [Liberation Tigers of Tamil Eelam] to allow civilians caught in the conflict zone to leave.
Australia, House of Representatives, Minister for Foreign Affairs, Ministerial statement: Situation in Sri Lanka, Hansard, 5 February 2009, p. 623.
Australia
In 2009, in a ministerial statement before the House of Representatives on the humanitarian crisis in Sri Lanka, Australia’s Minister for Foreign Affairs stated:
[T]here remains much human suffering among the civilians trapped in the conflict zone. Reports of abuses from within the conflict zone include accounts of civilians forced by the LTTE [Liberation Tigers of Tamil Eelam] to stay in its territory. … Australia urges the LTTE to allow civilians caught in the conflict zone to leave.
Australia, House of Representatives, Minister for Foreign Affairs, Ministerial statement: Humanitarian Crisis in Sri Lanka, Hansard, 12 May 2009, p. 3502.
Egypt
According to the Report on the Practice of Egypt, Egypt considers that parties to a conflict are required to take precautions against the effects of attack, in particular the removal of the civilian population and civilian objects from the vicinity of military objectives.
Report on the Practice of Egypt, 1997, Chapter 1.7.
India
In 2009, in a statement during a debate in the Lower House of Parliament (Lok Sabha) on the situation in Sri Lanka, India’s Minister of External Affairs and Minister of Finance stated:
A serious source of concern to us has been the condition of the civilians and internally displaced persons (IDPs), mostly Tamil, caught up in the zone of conflict. Estimates on the number of civilians trapped vary, but 70,000 or so are estimated to be there now. The LTTE [Liberation Tigers of Tamil Eelam] were reportedly using them as human shields.
Hon. Members may rest assured that our strong concerns for the safety, security and welfare of the civilians caught in the conflict have led us to stay actively engaged to prevent a further deterioration of humanitarian conditions. We have sent relief supplies to the civilians and the internally displaced persons (IDPs), facilitated access by international and UN organisations, and suggested ways for civilians and IDPs to escape from the conflict zone. …
I personally visited Colombo on 27th January. In my discussions with Sri Lankan President His Excellency Mahinda Rajapaksa, I stressed the need to give an opportunity to civilians and IDPs caught up in the conflict to emerge from the LTTE held areas, and suggested a pause in hostilities to provide the necessary environment. On 29th January 2009, the Sri Lankan President announced a 48-hour period for civilian safe passage to secure areas. He also appealed to the LTTE to allow civilians to leave and assured the safety and security of the civilians who did so.
In the last two weeks, nearly 35,000 civilians have come out of LTTE-held areas. Sadly some of those escaping from the conflict have been caught in cross-fire and, in recent incidents have been stopped and even killed by LTTE cadres. As the conflict enters what may be the final phase of military operations, the LTTE would best serve the interest of the Tamils by immediately releasing all civilians and laying down arms.
The Government of India is ready to facilitate the evacuation of civilians trapped in the area of conflict, working with the Government of Sri Lanka and the ICRC who would take responsibility for the security, screening and rehabilitation of these internally displaced persons.
India, Statement by the Minister of External Affairs and Minister of Finance during a debate in the Lower House of Parliament (Lok Sabha) on the situation in Sri Lanka, 18 February 2009.
India
In 2009, in answer to a written question in the Lower House of Parliament (Lok Sabha) regarding Sri Lanka, India’s Minister of External Affairs stated:
External Affairs Minister of India visited Sri Lanka on 27th January 2009. … He also took up India’s concerns for the safety, security and welfare of the civilians with President Mahinda Rajapaksa. He emphasized the need for the Sri Lankan Government to give an opportunity for the civilians and internally displaced persons to come out of the LTTE [Liberation Tigers of Tamil Eelam] held areas. He was assured that the Government of Sri Lanka would take all necessary measures to minimize the effects of the conflict on Tamil civilians including providing uninterrupted relief supplies, respecting and expanding safe zones and preventing civilian casualties. Subsequently, on 29th January 2009, President Rajapaksa announced a 48 hour period for civilians to leave the conflict zone, appealed to the LTTE to allow the civilians to leave, and assured the safety and security of civilians who did so.
India, Answer by the Minister of External Affairs to written question 216 in the Lower House of Parliament (Lok Sabha) regarding Sri Lanka, 18 February 2009.
India
In 2009, in answer to a written question in the Upper House of Parliament (Rajya Sabha) regarding Sri Lanka, India’s Minister of External Affairs stated:
Government of India’s strong concerns for the safety, security and welfare of Sri Lankan Tamil civilians caught up in the conflict in Northern Sri Lanka have been taken up with the Sri Lankan Government, including at the highest levels. During the visit of the External Affairs Minister to Sri Lanka on 27th January 2009, he emphasized the need for the Sri Lankan Government to give safe passage to civilians and internally displaced persons to come out of the LTTE [Liberation Tigers of Tamil Eelam] held areas, to respect and expand safe zones, and to provide relief supplies.
India, Answer by the Minister of External Affairs to written question 1052 in the Upper House of Parliament (Rajya Sabha) regarding Sri Lanka, 26 February 2009.
India
In 2009, India’s High Commission issued a press release entitled “Statement of Minister of External Affairs H.E. Mr Pranab Mukherjee on appeal to Government of Sri Lanka to work out safe passage for trapped civilians”, which stated:
There are reports that over 70,000 civilians are trapped in the conflict zone in Sri Lanka and there is acute shortage of food, water and medicines. Many innocent lives have been lost in the conflict zone. The Government of India has repeatedly expressed its concern for the security and passage to safe zones of the civilian population.
It is reported that the LTTE [Liberation Tigers of Tamil Eelam] has offered a ceasefire. While this may fall short of a declaration of willingness to lay down arms, it is our view that the Government of Sri Lanka should seize the opportunity presented by the offer to bring about a pause in the hostilities. The Government of India would, therefore, appeal to the Government of Sri Lanka to immediately work out safe passage for trapped civilians to secure locations. This would require the cooperation of the LTTE.
The pause in hostilities must be utilised to facilitate the movement of Tamil population out of the war-affected areas to secure locations where proper rehabilitation is possible and international aid organisations, as also the ICRC, have free access and scope to provide medical and other forms of humanitarian aid. Government of India is making arrangements to send an emergency medical unit and medicines to render medical assistance to internally displaced persons in Northern Sri Lanka.
India, High Commission of India, “Statement of Minister of External Affairs H.E. Mr Pranab Mukherjee on appeal to Government of Sri Lanka to work out safe passage for trapped civilians”, Press Release, 28 February 2009.
India
In 2009, in a statement on the situation in Sri Lanka, India’s External Affairs Minister stated:
India is deeply concerned about the humanitarian situation in Sri Lanka. The continuing conflict has taken a heavy toll on Tamil civilians and internally displaced persons caught in the cross fire. The Government of India has repeatedly expressed its concern for their security and sought to ensure safe passage to secure zones for the civilian population.
We had welcomed the announcement by Sri Lankan President Mahinda Rajapakse of a cessation of hostilities for the Tamil and Sinhala New Year over the last two days. The Government of Sri Lanka must extend this pause in hostilities to prevent further casualties and enable trapped civilians to leave the area to secure locations … While is incumbent on the LTTE [Liberation Tigers of Tamil Eelam] to release all civilians and IDPs [internally displaced persons] under their control, the Government of Sri Lanka cannot be oblivious to the evolving human tragedy and the fate of the Tamil civilian population caught up in the so-called No Fire Zone.
India, Statement by the Minister of External Affairs on the situation in Sri Lanka, 17 April 2009.
Iraq
On the basis of the reply by Iraq’s Ministry of Defence to a questionnaire, the Report on the Practice of Iraq states: “The Iraqi Armed Forces undertook, in numerous instances, to evacuate the civilian population living inside the occupied territories, in order to safeguard them in the instances where counter attacks were expected to take place by the Iranian forces.” With respect to measures taken inside Iraqi territory, the report cites the following examples: construction of shelters and keeping civilians away from the areas of military operations.
Report on the Practice of Iraq, 1998, Reply by the Iraqi Ministry of Defence to a questionnaire, July 1997, Chapter 1.7.
Israel
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:
The parties in control of the territory where the hostilities take place also have obligations under the Law of Armed Conflict to minimise civilian harm, including with regard to their own population. Thus, the parties to the conflict “shall, to the maximum extent feasible, take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.” [1977 Additional Protocol I, Article 58(c)] This means … [that] in anticipation of hostilities, they must “endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives.” [1977 Additional Protocol I, Article 58(a)] To do the opposite – to … encourage civilians to gather in areas that are likely military targets – violates the Law of Armed Conflict, because such tactics inevitably increase civilian casualties beyond what otherwise might occur in connection with an attack on a legitimate military target.
Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, § 139.
[emphasis in original; footnote in original omitted]Jordan
The Report on the Practice of Jordan refers to the legal obligation to remove endangered civilian persons and objects from the vicinity of military targets. It gives the example of the evacuation of civilians from a dangerous zone (though not a military objective) when in 1968 Jordan ordered the evacuation of civilians who had fled the West Bank in 1967 and lived in areas between Jordan and Israel. The evacuation was aimed at protecting the civilians from intensive military operations.
Report on the Practice of Jordan, 1997, Chapter 1.7.
Kuwait
The Report on the Practice of Kuwait states that in practice Kuwait has made every possible effort to remove the civilian population from the vicinity of military objectives. During the “crisis” in February 1998, the Kuwaiti authorities deemed the border area a possible theatre of military operations and evacuated civilians from the vicinity.
Report on the Practice of Kuwait, 1997, Answers to additional questions on Chapter 1.7.
Malaysia
The Report on the Practice of Malaysia refers to the obligation to remove all civilians from the vicinity of military objectives.
Report on the Practice of Malaysia, 1997, Answers to additional questions on Chapter 1.7.
Switzerland
In 2005, Switzerland withdrew its reservations to Articles 57 and 58 of the 1977 Additional Protocol I.
Switzerland, Withdrawal of reservations to the 1977 Additional Protocol I, 17 June 2005.
Switzerland
In 2013, Switzerland’s Federal Department of Foreign Affairs (FDFA) issued a press release entitled “Situation in the Syrian city of Al-Kusair – Statement of the FDFA”, which stated:
The FDFA is extremely concerned about the situation in Syria, notably intensified fighting in the city of Kusair.
The civilian population must immediately be allowed to leave the area, …
The FDFA appeals again to all parties to the conflict to respect their obligations under international law and take all measures to protect the civilian population as well as all people who are not involved in the fighting.
Switzerland, Federal Department of Foreign Affairs, “Situation in the Syrian city of Al-Kusair – Statement of the FDFA”, Press Release, 3 June 2013.
Switzerland
In 2013, in a statement before the UN Human Rights Council during an interactive dialogue with the Commission of Inquiry on the situation of human rights in Syria, the representative of Switzerland stated: “The parties [to the conflict] must do everything in their power to protect the civilian population, inter alia by giving civilians the opportunity to flee the zones of combat.”
Switzerland, Statement by the representative of Switzerland during an interactive dialogue with the Commission of Inquiry on the situation of human rights in Syria at the 23rd Session of the UN Human Rights Council, 4 June 2013.
Syrian Arab Republic
The Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers Article 58 of the 1977 Additional Protocol I to be part of customary international law.
Report on the Practice of the Syrian Arab Republic, 1997, Chapter 1.7.
United States of America
In 1972, the General Counsel of the US Department of Defense stated:
The principle [contained in paragraph 1(c) of UN General Assembly Resolution 2444 (XXIII) of 1969 that a distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the civilians be spared as much as possible] addresses primarily the Party exercising control over members of the civilian population. This principle recognizes the interdependence of the civilian community with the overall war effort of a modern society. But its application enjoins the party controlling the population to use its best efforts to distinguish or separate its military forces and war making activities from members of the civilian population to the maximum extent feasible so that civilian casualties and damage to civilian objects incidental to attacks on military objectives, will be minimized as much as possible.
United States, Letter from J. Fred Buzhardt, General Counsel of the Department of Defense, to Senator Edward Kennedy, Chairman of the Subcommittee on Refugees of the Committee on the Judiciary, 22 September 1972, AJIL, Vol. 67, 1973, p. 123.
United States of America
In 1991, in response to an ICRC memorandum on the applicability of IHL in the Gulf region, the US Department of the Army stated:
The obligation of distinguishing combatants and military objectives from civilians and civilian objects is a shared responsibility of the attacker, defender, and the civilian population as such. An attacker must exercise reasonable precautions to minimize incidental or collateral injury to the civilian population, consistent with mission accomplishment and allowable risk to the attacking force. A defender must exercise reasonable precaution to separate the civilian population and civilian objects from military objectives. Civilians must exercise reasonable precaution to remove themselves from the vicinity of military objectives or military operations. The force that has control over the civilians has an obligation to place them in a safe place.
United States, Message from the Department of the Army to the legal adviser of the US Army forces deployed in the Gulf, 11 January 1991, § 8(E), Report on US Practice, 1997, Chapter 1.7.
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
Historically, and from a common sense standpoint, the party controlling the civilian population has the opportunity and responsibility to minimize the risk to the civilian population through the separation of military objects from the civilian population, evacuation of the civilian population from near immovable military objects, and development of air raid precautions … The defending party must exercise reasonable precautions to separate the civilian population and civilian objects from military objectives, and avoid placing military objectives in the midst of the civilian population.
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 625.
In the report, the Department of Defense accused Iraq of having violated its obligations:
Iraqi authorities elected not to move civilians away from objects they knew were legitimate military targets, thereby placing those civilians at risk of injury incidental to Coalition attacks against these targets, notwithstanding the efforts by the Coalition to minimize risk to innocent civilians … The Government of Iraq elected not to take routine air-raid precautions to protect its civilian population. Civilians were not evacuated in any significant numbers from Baghdad, nor were they removed from proximity to legitimate military targets. There were air raid shelters for less than 1 percent of the civilian population of Baghdad … The Government of Iraq was aware of its law of war obligations. In the month preceding the Coalition air campaign, for example, a civil defense exercise was conducted, during which more than one million civilians were evacuated from Baghdad. No government evacuation program was undertaken during the Coalition air campaign.
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, pp. 623 and 625–626.
United States of America
In 1993, in its report to Congress on the protection of natural and cultural resources during times of war, the US Department of Defense stated:
The obligation to take reasonable measures to minimize damage to natural resources and cultural property is shared by both an attacker and a defender … The defender has certain responsibilities as well, not the least of which is to take all reasonable measures to separate military objectives from civilian objects and the civilian population. Regrettably, in conflicts such as the Korean and Vietnam Wars, as well as the 1991 Persian Gulf War, the armed forces of the United States have faced opponents who have elected to use their civilian populations and civilian objects to shield military objectives from attack. Notwithstanding such actions, U.S. forces have taken reasonable measures to minimize collateral injury to civilians and damage to civilian objects while conducting their military operations, often at increased risk to U.S. personnel.
United States, Department of Defense, Report to Congress on International Policies and Procedures Regarding the Protection of Natural and Cultural Resources During Times of War, 19 January 1993, p. 203.
United States of America
The Report on US Practice states:
It is the opinio juris of the United States that parties to a conflict should, to the maximum extent feasible, segregate and separate their military activities from the civilian population to protect the latter. Alternatively, where feasible, it may be necessary to remove civilians from the vicinity of military operations in order to protect them from the effects of attacks.
Report on US Practice, 1997, Chapter 1.7.
Zimbabwe
The Report on the Practice of Zimbabwe states that the provisions of Article 58 of the 1977 Additional Protocol I would be regarded as customary by Zimbabwe because of its adoption of the Geneva Conventions Amendment Act which incorporates the 1977 Additional Protocol I into Zimbabwe’s law and practice.
Report on the Practice of Zimbabwe, 1998, Chapter 1.7.
No data.
No data.
No data.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kupreškić case in 2000, the ICTY Trial Chamber noted that Article 58 of the 1977 Additional Protocol I was now part of customary international law, not only because it specified and fleshed out general pre-existing norms, but also because it did not appear to be contested by any State, including those who had not ratified the Protocol.
ICTY, Kupreškić case, Judgment, 14 January 2000, § 524.
With reference to the Martens Clause, the Trial Chamber held:
The prescriptions of … [Article 58 of the 1977 Additional Protocol I] (and of the corresponding customary rules) must be interpreted so as to construe as narrowly as possible the discretionary power to attack belligerents and, by the same token, so as to expand the protection accorded to civilians.
ICTY, Kupreškić case, Judgment, 14 January 2000, § 525.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Galić case in 2003, the ICTY Trial Chamber stated:
As suggested by the Defence, the parties to a conflict are under an obligation to remove civilians, to the maximum extent feasible from the vicinity of military objectives and to avoid locating military objectives within or near densely populated areas. However, the failure of a party to abide by this obligation does not relieve the attacking side of its duty to abide by the principles of distinction and proportionality when launching an attack.
ICTY, Galić case, Judgment, 5 December 2003, § 61.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Dragomir Milošević case before the ICTY in 2007, the Trial Chamber stated: “The parties to a conflict are under an obligation to remove civilians, to the maximum extent feasible, from the vicinity of military objectives”.
ICTY, Dragomir Milošević case, Judgment, 12 December 2007, § 949.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
Civilian persons and objects shall be removed from military objectives. To that purpose commanders shall seek the cooperation of the civilian authorities … The removal of civilian persons from the vicinity of military objectives shall take place preferably to locations they know and which present no danger for them. The removal of civilian objects shall take place primarily to locations outside the vicinity of military objectives … When the tactical situation permits, effective advance warning shall be given (e.g. for the removal and/or shelter of civilian persons).
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, §§ 439, 443, 444 and 449.
ICRC
In an appeal issued in 1979 with respect to the conflict in Rhodesia/Zimbabwe, the ICRC specifically requested that the Patriotic Front “clearly separate civilian establishments, particularly refugee camps, from military installations”.
ICRC, Conflict in Southern Africa: ICRC appeal, 19 March 1979, § 7, IRRC, No. 209, 1979, p. 89.
ICRC
In 1994, in a Memorandum on Respect for International Humanitarian Law in Angola, the ICRC stated:
All feasible precautions shall be taken to avoid injuries, loss and damage to the civilian population; … civilians must, in particular, be kept out of dangers resulting from military operations and … their evacuation shall be organized or facilitated, wherever required and insofar as the security situation permits.
ICRC, Memorandum on Respect for International Humanitarian Law in Angola, 8 June 1994, § II, IRRC, No. 320, 1997, pp. 503–504.
ICRC
In 1994, in a Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Opération Turquoise in the Great Lakes region, the ICRC stated:
All feasible precautions shall be taken to avoid injury or losses inflicted on the civilian population and damage to civilian objects; civilians must, in particular, be kept away from dangers resulting from military operations and their evacuation must be organized or facilitated where safety conditions so require or permit.
ICRC, Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Opération Turquoise, 23 June 1994, § II, reprinted in Marco Sassòli and Antoine A. Bouvier, How Does Law Protect in War?, ICRC, Geneva, 1999, p. 1308.
Institute of International Law
In a resolution adopted during its Edinburgh Session in 1969, the Institute of International Law stated: “The provisions of the preceding paragraphs do not affect the application of the existing rules of international law which prohibit the exposure of civilian populations and of non-military objects to the destructive effects of military means.”
Institute of International Law, Edinburgh Session, Resolution on the Distinction between Military Objectives and Non-military Objects in General and Particularly the Problems Associated with Weapons of Mass Destruction, 9 September 1969, § 5.
Sudan People’s Liberation Movement/Army (SPLM/A)
According to the Report on SPLM/A Practice, the SPLM/A has on many occasions successfully warned and removed the civilian population to safe places when attacks by the Sudanese Government were imminent. For example, in March 1993, it instructed a considerable number of minors to move away from the town of Pochalla.
Report on SPLM/A Practice, 1998, Chapter 1.7.
In addition, according to the same report, it has been SPLM/A practice to establish camps for refugees and displaced civilian populations away from army encampments and barracks.
Report on SPLM/A Practice, 1998, Chapter 1.7.
