Practice Relating to Rule 37. Open Towns and Non-Defended Localities
Section C. Attacks on open towns and non-defended localities
Hague Regulations (1899)
Article 25 of the 1899 Hague Regulations provides: “The attack or bombardment of towns, villages, habitations or buildings which are not defended, is prohibited.”
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, Article 25.
Hague Regulations (1907)
Article 25 of the 1907 Hague Regulations provides: “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.”
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 25.
Hague Convention (IX)
Article 1(1) of the 1907 Hague Convention (IX) prohibits “the bombardment by naval forces of undefended ports, towns, villages, dwellings or buildings”.
Hague Convention (IX) concerning Bombardment by Naval Forces in Time of War, The Hague, 18 October 1907, Article 1(1).
Additional Protocol I
Article 59(1) of the 1977 Additional Protocol I provides: “It is prohibited for the Parties to the conflict to attack, by any means whatsoever, non-defended localities.”
Article 59(7) provides: “A locality loses its status as a non-defended locality when it ceases to fulfil the conditions laid down in paragraph 2 or in the agreement referred to in paragraph 5.”
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 59(1) and (7). Article 59 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 non-defended localities … 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.
ICC Statute
Pursuant to Article 8(2)(b)(v) of the 1998 ICC Statute, “[a]ttacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives” constitutes a war crime in international armed conflicts.
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2)(b)(v).
Brussels Declaration
Article 15 of the 1874 Brussels Declaration states: “Fortified places are alone liable to be besieged. Open towns, agglomerations of dwellings, or villages which are not defended can neither be attacked nor bombarded.”
Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, Article 15.
Oxford Manual
Under Article 32(c) of the 1880 Oxford Manual, it is forbidden “[t]o attack and to bombard undefended places”.
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 32(c).
Report of the Commission on Responsibility
Based on several documents supplying evidence of outrages committed during the First World War, the 1919 Report of the Commission on Responsibility lists violations of the laws and customs of war which should be subject to criminal prosecution, including the “deliberate bombardment of undefended places”.
Report submitted to the Preliminary Conference of Versailles by the Commission on Responsibility of the Authors of the War and on Enforcement of Penalties, Versailles, 29 March 1919.
ILA Draft Convention for the Protection of Civilian Populations against New Engines of War
Article 2 of the 1938 ILA Draft Convention for the Protection of Civilian Populations against New Engines of War provides: “The bombardment by whatever means of towns, ports, villages or buildings which are undefended is prohibited in all circumstances.”
Draft Convention for the Protection of Civilian Populations against New Engines of War, adopted by the International Law Association, Fortieth Conference, Amsterdam, 29 August–2 September 1938, Article 2.
Franco-German Declaration on the War in Bosnia and Herzegovina
In paragraph 3 of the 1993 Franco-German Declaration on the War in Bosnia and Herzegovina, France and Germany stated that they “considered the establishment of safe areas necessary for the protection of the Bosnian civilian population” in the former Yugoslavia.
Franco-German Declaration on the War in Bosnia and Herzegovina, 61st French-German Consultations, Beaune, 2 June 1993, § 3.
ICTY Statute
According to Article 3(c) of the 1993 ICTY Statute, among the violations of the laws or customs of war in respect to which the Tribunal is competent ratione materiae, is “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings”.
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 3(c).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Under 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 undefended towns, villages, dwellings or buildings” 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).
UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(b)(v), “[a]ttacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives” constitutes a war crime in international armed conflicts.
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 6(1)(b)(v).
Argentina
Argentina’s Law of War Manual (1969) states: “It is prohibited to attack or bombard undefended cities, localities, dwellings or buildings.”
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 1.011.
Argentina
Argentina’s Law of War Manual (1989) states that it is prohibited to “attack, by whatever means, non-defended localities”.
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 non-defended localities 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: “Towns, villages, dwellings or buildings which are undefended are also protected from attack.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 534; see also § 732 (siege warfare).
With respect to non-defended localities, the manual states:
Military objectives within a non-defended locality, from which hostile acts are being conducted, can be attacked, subject to weapon and targeting considerations … Otherwise, non-defended localities cannot be attacked.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, §§ 726 and 732.
The manual further provides that “making non-defended localities … 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:
5.37 Towns, villages, dwellings or buildings which are undefended are also protected from attack …
…
Undefended localities
7.27 The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited. The reason for this rule is that there is no military need to attack a place that is not being defended. It can simply be occupied without resistance or bypassed. The concept of an undefended place does not apply to places in rear areas behind enemy lines. It applies only to places that are open to occupation by ground forces.
Non-defended locality
7.28 It is prohibited for parties to a conflict to attack, by any means whatsoever, non-defended localities.
…
Siege warfare
7.35 Attack on towns, villages, habitations or buildings that are undefended is prohibited unless they have become military objectives.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 5.37, 7.27, 7.28 and 7.35; see also §§ 9.24 and 9.43.
The manual also 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 non-defended localities … 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).
Belgium
Belgium’s Teaching Manual for Soldiers contains a slide illustrating the prohibition of bombardment of a village in which no combatants or military objects are located.
Belgium, Droit de la Guerre, Dossier d’Instruction pour Soldat, à l’attention des officiers instructeurs, JS3, Etat-Major Général, Forces Armées belges, undated, p. 86 and slide 7/2.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Military Instructions (1992) provides: “It is prohibited to attack a place which has been declared an ‘open city’.”
Bosnia and Herzegovina, Instructions on the Implementation of the International Law of War in the Armed Forces of the Republic of Bosnia and Herzegovina, Official Gazette of ABiH, No. 2/92, 5 December 1992, § 6.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended” constitutes a “grave breach” of IHL.
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, pp. 25–26.
The Regulations also states that “an attack against non-defended localities” constitutes 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 Instructor’s Manual (2006) states that “an attack against undefended localities …” 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 attack, by any means whatsoever, non-defended localities.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-11, § 109.
Under the manual, a non-defended locality loses its status when it ceases to fulfil the conditions described by the manual (which are the same as those listed in Article 59 of the 1977 Additional Protocol I) or in an agreement between adverse parties to establish that non-defended locality.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-11, § 114.
The manual further provides that “making non-defended localities … 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 attack, by any means whatsoever, non-defended localities.
…
3. A […] non-defended locality must normally satisfy the following conditions:
a. all combatants, as well as mobile weapons and mobile military equipment, must have been evacuated;
b. no hostile use shall be made of fixed military installations or establishments;
c. no acts of hostility shall be committed by the authorities or by the population; and
d. no activities in support of military operations shall be undertaken.
4. However, the parties to a conflict may agree to the establishment of a non-defended locality even where these conditions are not all satisfied.
…
6. An area loses its status as a non-defended locality when it ceases to fulfil the conditions described above or in an agreement between adverse parties to establish the non-defended locality.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 456.1, 3–4 and 6.
In its chapter on land warfare, the manual further states in the context of siege warfare: “An assault against or bombardment of towns, villages, dwellings or buildings that are undefended is prohibited.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 614.1.
In its chapter entitled “War crimes, individual criminal liability and command responsibility”, the manual provides that “making non-defended localities … 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 undefended places”.
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 attacks on “undefended areas” are grave breaches of the 1977 Additional Protocol I and thus constitute war crimes.
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.6. Non-defended localities
They are places deliberately left without defence, in order to protect the civilian population and its goods against any attack or damage. … These localities are sometimes also called open towns.
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 36–37.
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, both during the conflict (for example in the form of an “open town”), or “demilitarized zones” in time of peace. Such zones must not be attacked militarily. On the other hand, they must also no longer be defended against the advancing of the enemy.
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.3.3. Non-defended localities
It is prohibited for the Parties to the conflict to attack, by any means whatsoever, non-defended localities. …
A Party to the conflict may declare as a non-defended locality any inhabited place in or near a zone where armed forces are in contact. The non-defended locality is therefore open for occupation by the adverse Party. …
…
Any area loses its status as non-defended locality if it ceases to respect the conditions described above or agreed between the adverse Parties regarding the establishment of non-defended localities.
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. 42.
Croatia
Croatia’s LOAC Compendium (1991) qualifies “unlawful attacks on … undefended localities” as war crimes.
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 56.
Croatia
Croatia’s Commanders’ Manual (1992) states that it is a commander’s duty to give relevant instructions concerning the protection of undefended areas when military activities are conducted in the vicinity of such areas.
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 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 undefended localities”.
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) states:
Belligerents are forbidden to bombard a city or town that is undefended and that is open to immediate entry by their own or allied forces. A city or town behind enemy lines is, by definition, neither undefended nor open, and military targets therein may be destroyed or bombarded.
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
France’s LOAC Teaching Note (2000) includes non-defended localities among the zones that are specially protected by IHL. It states that, while occupation of non-defended localities is permitted, attacks against such localities are prohibited, provided they are completely demilitarized.
France, Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 5.
France
France’s LOAC Manual (2001) includes undefended localities in the list of specially protected objects and states that it is prohibited for the parties to a conflict to attack them by any means whatsoever.
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. 31.
The manual also prohibits attacks on open towns.
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. 124.
Germany
Germany’s Military Manual (1992) prohibits “the attack or bombardment of non-defended localities”.
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, § 458.
The manual further provides that grave breaches of IHL are in particular “launching attacks against non-defended localities”.
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.
Greece
The Hellenic Navy’s International Law Manual (1995) provides:
1. … [T]he provisions of the otherwise obsolete IX Hague Convention concerning the respect and protection of the victims of armed conflict should be considered as bearing a perpetual binding effect.
2. To the above effect, the significance of the codified text of IX Hague Convention is great and the following provisions should be applied by the belligerents:
a. The prohibition of bombardment of undefended ports, towns, villages, dwellings or buildings (art.1).
Greece, International Law Manual, Hellenic Navy General Staff, Directorate A2, Division IV, 1995, Chapter 7, Part II, §§ 1–2.
Hungary
Hungary’s Military Manual (1992) qualifies “unlawful attacks on … undefended localities” as war crimes.
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 90.
Indonesia
Indonesia’s Air Force Manual (1990) states:
The bombardment of undefended towns, villages and buildings is prohibited if:
(a) there are no armed forces or combatants in these areas;
(b) there are no weapons or other mobile equipment;
(c) there are no installations or permanent military equipment in order to achieve a military purpose;
(d) there is no act of war by the authority or its inhabitants;
(e) there is no activity which supports military operations.
Indonesia, The Basics of International Humanitarian Law in Air Warfare, Indonesian Air Force, 1990, § 59.
Italy
Italy’s IHL Manual (1991) qualifies “indiscriminate attacks against … non-defended localities” 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.
Italy
Italy’s LOAC Elementary Rules Manual (1991) states:
Where protected zones or localities (… non-defended localities) have been agreed upon, the competent commanders shall issue instructions for action and behaviour near and towards such zones or localities.
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 that “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.
Kenya
Kenya’s LOAC Manual (1997) provides that it is forbidden “to attack or bombard undefended towns, villages, dwellings or buildings”.
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 2; see also p. 6.
Mexico
Mexico’s Army and Air Force Manual (2009) states: “It is prohibited to: … attack or bombard cities, towns, villages, dwellings or buildings which are inhabited and undefended.”
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 389(D).
Netherlands
The Military Manual (1993) of the Netherlands states: “Parties to a conflict may not attack undefended areas and this is a result of the ‘open town doctrine’.”
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-15, § 13.
The manual further states that “attacking … undefended areas” in violation of IHL constitutes a grave breach.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IX-5.
Netherlands
The Military Handbook (1995) of the Netherlands prohibits attacks on “undefended cities, villages and buildings”.
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-36.
Netherlands
The Military Manual (2005) of the Netherlands states:
Parties to a conflict are prohibited from attacking undefended localities. This is a development of the older “open city” doctrine …
During the Second World War, cities were several times declared “open”. In June 1940, for example, the French Government declared Paris and Bordeaux, among other places, open cities. In 1945 the Allies declared Rome an open city after landing in Italy.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0552.
In its chapter on non-international armed conflict, the manual states: “It is prohibited to attack or bomb undefended cities, towns, villages, places or buildings.”
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) recalls: “The law of armed conflict forbids attack by any means of undefended places.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 412(6).
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.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 412(8).
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, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, 1703(3)(d).
Nigeria
According to Nigeria’s Manual on the Laws of War, “firing on undefended localities” is a war crime.
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 6.
Republic of Korea
The Republic of Korea’s Military Regulation 187 (1991) qualifies “attacks against non-defended localities” as a war crime.
Republic of Korea, Military Regulation 187, 1 January 1991, Article 4(2).
Republic of Korea
The Republic of Korea’s Operational Law Manual (1996) states that attacks on undefended cities, towns, houses and buildings are prohibited.
Republic of Korea, Operational Law Manual, 1996, pp. 131–132.
Russian Federation
The Russian Federation’s Military Manual (1990) states that “the bombardment by military aircraft or vessels of cities, ports, villages, dwellings or buildings … which are undefended and not used for military purposes” is a prohibited method of warfare.
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 5(n).
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states: “objects protected by international humanitarian law include … non-defended … 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) states: “It is prohibited to attack or bombard, by whatever means, undefended towns, villages, dwellings or buildings. A facility which is occupied by medical units alone is not regarded as defended.”
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, § 28(e).
The manual further states that “firing on localities which are undefended and without military significance” constitutes a grave breach of IHL.
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, § 38(b).
South Africa
South Africa’s Revised Civic Education Manual (2004) states: “It is prohibited to attack or bombard, by whatever means, undefended towns, villages, dwellings and buildings. A facility which is occupied by medical units only, is not regarded as defended.”
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 50(e).
The manual also provides that “[a]ny attack on an undefended locality” 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:
Article 59 of [the 1977] Additional Protocol I places a prohibition on the Parties to the conflict to attack non-defended localities by any means whatsoever.
…
A non-defended locality shall lose its status when it ceases to fulfil the abovementioned conditions. However, if that should happen, the locality shall continue to enjoy the protection provided by the other provisions of the LOAC [law of armed conflict].
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. 148–149.
The manual also states:
5.1 War Crimes and Grave Breaches of the LOAC
…
- [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
Spain’s LOAC Manual (1996) prohibits attacks against open towns and non-defended localities.
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).
The manual further states that “launching an attack against … non-defended localities” 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) prohibits attacks against open towns and non-defended localities.
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).
Sweden
Sweden’s IHL Manual (1991) refers to Article 59 of the 1977 Additional Protocol I and states that the chief rule relating to non-defended localities has the status of customary law.
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3, p. 19.
Switzerland
Switzerland’s Basic Military Manual (1987) states: “It is prohibited to attack or bombard, by whatever means, undefended cities, villages, housing areas or buildings.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 32(1).
The manual further provides that “launching an attack against non-defended localities” 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).
Ukraine
Ukraine’s IHL Manual (2004) states: “Attacks against or hostilities within non-defended localities … 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 Military Manual (1958) states, with reference to Article 25 of the 1907 Hague Regulations, that the distinction between “defended” and “undefended” localities still exists and is not invalidated by the considerable destructive power of modern artillery and guided missiles. It clearly states the prohibition of any attack against undefended localities.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 290.
The manual further states: “In addition to the ‘grave breaches’ of the 1949 [Geneva] Conventions … the following are examples of punishable violations of the laws of war, or war crimes: … (c) firing on undefended localities”.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 626(c).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states that it is forbidden “to attack or bombard undefended towns, villages, dwellings or buildings”.
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, § 5(c).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
“The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.” The reason for this rule is that there is no military need to attack a place that is not being defended. It can simply be occupied without resistance or bypassed.
…
“It is prohibited for the Parties to the conflict to attack, by any means whatsoever, non-defended localities.”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.38; see also § 12.26 (air operations).
With regard to internal armed conflict, the manual states:
15.25. It is prohibited to attack or bombard, by whatever means, towns, villages, dwellings, or buildings that are undefended.
15.25.1. If a town, village, or building is undefended and can be occupied without resistance, there is no need to attack it and it is prohibited to do so. It is also prohibited to attack buildings unless they are military objectives. Undefended towns and villages that cannot be occupied because they are behind enemy lines or are in areas controlled by enemy forces may also not be attacked as such. Attacks against specific military objectives in those towns and villages are permitted, though precautions must be taken to minimize incidental loss or damage.
15.25.2. The other rules on protective zones applicable in international armed conflicts may be applied by analogy to internal armed conflicts.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 15.25–15.25.2.
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 Field Manual (1956) reproduces Article 25 of the 1907 Hague Regulations and states:
In addition to the “grave breaches” of the Geneva Conventions of 1949, the following acts are representative of violations of the law of war (“war crimes”):
…
d. Firing on localities which are undefended and without military significance.
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 39 and 504(d).
United States of America
The US Air Force Pamphlet (1976) reproduces Article 25 of the 1907 Hague Regulations and states:
Cities behind enemy lines and not open to occupation may contain military objectives. The application of this undefended rule to aerial warfare, where the object of the attack was not to occupy the city but to achieve some specific military advantage by destroying a particular military objective, caused disagreements in the past. In the US view, it has been recognized by the practice of nations that any place behind enemy lines is a defended place because it is not open to unopposed occupation. Thus, although such a city is incapable of defending itself against aircraft, nonetheless if it is in enemy held territory and not open to occupation, military objectives in the city can be attacked.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-3(e).
United States of America
The US Air Force Commander’s Handbook (1980) states:
Towns, villages, cities, refugee camps, and other areas containing a concentration of civilians should not be bombarded if they are undefended and open to occupation or capture by friendly ground forces in the vicinity. Any military objectives that might exist in these towns (for example, military supplies) can be seized or destroyed by the ground forces.
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(a).
United States of America
The US Instructor’s Guide (1985) states:
The attack or shelling by any means whatsoever of undefended towns, villages, dwellings, or buildings is prohibited. This means that military targets can be attacked wherever they are located, but a town with no military targets must be spared.
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 6.
The manual also provides: “In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … firing on facilities which are undefended and without military significance.”
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 13.
United States of America
The US Rules of Engagement for Operation Desert Storm (1991) prohibits firing at civilian populated areas or buildings which are not defended nor are being used for military purposes.
United States, Desert Storm – Rules of Engagement, Pocket Card, US Central Command, January 1991, reprinted in Operational Law Handbook, International and Operational Law Department, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia, 1995, pp. 8-7 and 8-8, § B.
United States of America
The US Naval Handbook (1995) states:
Belligerents are forbidden to bombard a city or town that is undefended and that is open to immediate entry by their own or allied forces. A city or town behind enemy lines is, by definition, neither undefended nor open, and military targets therein may be destroyed or bombarded.
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:
Belligerents are forbidden to bombard a city or town that is undefended and that is open to immediate entry by their own or allied forces. A city or town behind enemy lines is, by definition, neither undefended nor open, and military targets therein may be destroyed by bombardment.
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 open towns and non-defended localities.
Yugoslavia, Socialist Federal Republic, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, §§ 77 and 81.
Armenia
Under Armenia’s Penal Code (2003), “targeting undefended areas” 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 War Crimes Act (1945) considers “any war crime within the meaning of the instrument of appointment of the Board of Inquiry [set up to investigate war crimes committed by enemy subjects]” as a war crime, including the deliberate bombardment of undefended places.
Australia, War Crimes Act, 1945, Section 3.
Australia
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides: “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 serious war crimes that are committed in the course of an international armed conflict:
268.39 War crime – attacking undefended places
A person (the perpetrator) commits an offence if:
(a) the perpetrator attacks or bombards one or more towns, villages, dwellings or buildings; and
(b) the towns, villages, dwellings or buildings are open for unresisted occupation; and
(c) the towns, villages, dwellings or buildings do not constitute military objectives; 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, § 268.39, p. 328.
The Criminal Code Act states with respect to war crimes that are grave breaches of the 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 Criminal Code the war crimes defined in the 1998 ICC Statute, including “attacking undefended places” in international armed conflicts.
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.39; see also § 268.98 (grave breach of the 1977 Additional Protocol I).
Azerbaijan
Azerbaijan’s Criminal Code (1999) provides that “directing attacks against non-defended localities” 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 attack against non-defended localities”.
Belarus, Criminal Code, 1999, Article 136(7).
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 non-defended localities … 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(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 … towns, villages, dwellings, or buildings which are undefended and which are not military objectives … 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 … towns, villages, dwellings, or buildings which are undefended and which are not military objectives … 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 “non-defended localities … 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 … non-defended places …
…
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); see also Article 179(2)(b).
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
[The following are] considered as war crimes:
…
B. Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts:
…
e) attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives.
Burundi, Law on Genocide, Crimes against Humanity and War Crimes, 2003, Article 4(B)(e).
Burundi
Burundi’s Penal Code (2009) states:
“War crimes” means crimes which are committed as part of a plan or policy or as part of a large-scale commission of such crimes, in particular:
…
2. … [S]erious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
…
5°. Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives.
Burundi, Penal Code, 2009, Article 198(2)(5°).
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).
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act.
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
China
China’s Law Governing the Trial of War Criminals (1946) provides that “deliberate bombing of non-defended areas” constitutes a war crime.
China, Law Governing the Trial of War Criminals, 1946, Article 3(27).
Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) defines war crimes with reference to the categories of crimes set out in Article 8 of the 1998 ICC Statute.
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 4.
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 … non-defended localities” 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 … undefended places”.
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 defenceless place”.
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 settlement or structure without military protection” is a war crime.
Estonia, Penal Code, 2001, § 106.
France
France’s Penal Code (1992), as amended in 2010, states in its section on war crimes related to international armed conflict: “Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives is punishable by life imprisonment.”
France, Penal Code, 1992, as amended in 2010, Article 461-24.
Georgia
Under Georgia’s Criminal Code (1999), “making non-defended localities … 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 … undefended towns, villages, dwellings or buildings”.
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, 1962, as amended in 1998, 1962, Section 3(1).
The Act adds that any “minor breach” of the 1977 Additional Protocol I, including violations of Article 59(1), is also a punishable offence.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, 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 non-defended localities”.
Jordan, Military Penal Code, 2002, Article 41(a)(12).
Lithuania
Under Lithuania’s Criminal Code (1961), as amended in 1998, “a military attack against an undefended settlement” constitutes a war crime.
Lithuania, Criminal Code, 1961, as amended in 1998, Article 337.
Mali
Under Mali’s Penal Code (2001), “attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are not defended and which do not constitute military objectives” constitutes a war crime in international armed conflict.
Mali, Penal Code, 2001, Article 31(i)(6).
Netherlands
Under the Definition of War Crimes Decree (1946) of the Netherlands, the “deliberate bombardment of undefended places” constitutes a war crime.
Netherlands, Definition of War Crimes Decree, 1946, Article 1.
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 non-defended localities … the object of attack”.
Netherlands, International Crimes Act, 2003, Article 5(2)(c)(iv).
Likewise, under the Act, “attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives” constitutes a crime, when committed in time of international armed conflict.
Netherlands, International Crimes Act, 2003, Article 5(5)(c).
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).
New Zealand
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.
New Zealand, International Crimes and ICC Act, 2000, Section 11(2).
Niger
According to Niger’s Penal Code (1961), as amended in 2003, “putting under attack non-defended localities” is a war crime.
Niger, Penal Code, 1961, as amended in 2003, 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 towns, villages, dwellings or buildings which are undefended and which are not military objectives”.
Norway, Penal Code, 1902, as amended in 2008, § 106(e).
Peru
Peru’s Code of Military and Police Justice (2006) states:
A member of the military or police shall be imprisoned for a period of no less than eight and no more than 15 years if he or she in the context of an international or non-international armed conflict:
…
2. Directs an attack by any means against civilian objects if they are protected by international humanitarian law, in particular … cities, towns, villages or buildings which are undefended.
Peru, Code of Military and Police Justice, 2006, Article 95(2).
This article is no longer in force. Along with certain other articles in this legislation, it was declared unconstitutional by the Constitutional Court (en banc decision for case file No. 0012-2006-PI-TC, 8 January 2007) because it does not stipulate a crime committed in the line of duty that would fall under the jurisdiction of a military court pursuant to Article 173 of Peru’s Constitution.
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 … undefended towns, villages, dwellings or buildings.
Peru, Military and Police Criminal Code, 2010, Article 91(2).
Poland
Poland’s Penal Code (1997) provides for the punishment of “any person who, during hostilities, attacks a non-defended locality or object”.
Poland, Penal Code, 1997, Article 122(1).
Republic of Korea
The Republic of Korea’s ICC Act (2007) provides for the punishment of anyone who commits the war crime of “[d]irecting attacks … against undefended towns, villages, dwellings or buildings” in both international and non-international armed conflicts.
Republic of Korea, ICC Act, 2007, Article 13(1)(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.
Senegal
Senegal’s Penal Code (1965), as amended in 2007, states that the following constitute war crimes:
b) other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
…
4. attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives.
Senegal, Penal Code, 1965, as amended in 2007, Article 431-3(b)(4).
Serbia
Serbia’s Criminal Code (2005) states that ordering or committing an attack against “undefended places”, 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 an unprotected place”.
Slovakia, Criminal Code, 1961, as amended, Article 262(2)(b).
Slovenia
Under Slovenia’s Penal Code (1994), “a random attack on … non-defended areas” is a war crime.
Slovenia, Penal Code, 1994, Article 374(2).
South Africa
South Africa’s ICC Act (2002) reproduces the war crimes listed in the 1998 ICC Statute, including in international armed conflicts: “attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives”.
South Africa, ICC Act, 2002, Schedule 1, Part 3, § (b)(v).
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 … undefended areas … which are duly identified with signs or the appropriate distinctive signals”.
Spain, Penal Code, 1995, 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. … undefended settlements or buildings … 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. … undefended settlements or buildings … 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 non-defended areas … 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).
United Kingdom of Great Britain and Northern Ireland
Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(b)(v) of the 1998 ICC Statute.
United Kingdom, ICC Act, 2001, Sections 50(1) and 51(1) (England and Wales) and Section 58(1) (Northern Ireland).
United States of America
Under the US War Crimes Act (1996), violations of Article 25 of the 1907 Hague Regulations are war crimes.
United States, War Crimes Act, 1996, Section 2441(c)(2).
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:
…
13. Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives.
Uruguay, Law on Cooperation with the ICC, 2006, Article 26.2 and 26.3.13.
Venezuela
Venezuela’s Code of Military Justice (1998), as amended, provides for the punishment of “those who should bomb inhabited places which are not fortified, which are not occupied by enemy forces and which do not oppose resistance”.
Venezuela, Code of Military Justice, 1998, as amended, Article 474(10).
Yugoslavia, Socialist Federal Republic of
Under the Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, “indiscriminate attacks on … non-defended localities” are a war crime.
Yugoslavia, Socialist Federal Republic, Penal Code as amended, 1976, Article 142(2).
In a footnote related to the “use of prohibited means of combat”, the Code further provides that “the following methods of combat are banned under international law: … bombing and other forms of attacks on non-defended towns, villages and other localities and buildings”. Yugoslavia, Socialist Federal Republic, Penal Code, 1976, as amended in 2001, Commentary on Article 148(1)(a).
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).
Canada
In 2013, in the Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.”
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
Croatia
In the Perišić and Others case in 1997 in a trial in absentia before a Croatian district court, several persons were convicted of ordering the shelling of the city of Zadar and its surroundings on the basis of Article 25 of the 1907 Hague Regulations, common Article 3 of the 1949 Geneva Conventions and Articles 13–14 of the 1977 Additional Protocol II, as incorporated in Article 120 of Croatia’s Criminal Code.
Croatia, District Court of Zadar, Perišić and Others case, Judgment, 24 April 1997.
Democratic Republic of the Congo
In 2010, in the Barnaba Yonga Tshopena case, the Military Garrison Court of Ituri-Bunia convicted a leader of the Front for Patriotic Resistance in Ituri (FRPI) of several war crimes, including attacking non-defended localities. The Court stated:
88 … [T]he defendant … is accused of [committing a] war crime by launching attacks against non-defended localities, which is a punishable act according to article 8(2)(b)(v) [of the 1998 ICC Statute]. The constitutive elements of this crime are:
- The perpetrator must have attacked one or more towns, villages, dwellings or buildings;
- Such towns, villages, dwellings or buildings were open for unresisted occupation;
- Such towns, villages, dwellings or buildings did not constitute military objectives;
- The conduct took place in the context of and was associated with an armed conflict;
- The perpetrator must be aware of the factual circumstances that established the existence of an armed conflict.
89 … [I]n the present case, several villages were attacked and burned, including Nyankunde and seven other localities in the Groupement Musedzo, and the defendant … knew that those attacks were associated with an armed conflict. Therefore, this Court finds that there is sufficient evidence to establish substantial grounds to believe that the defendant committed a war crime by launching attacks against non-defendant localities.
Democratic Republic of the Congo, Military Garrison Court of Ituri-Bunia, Barnaba Yonga Tshopena case, Judgment, 9 July 2010, §§ 88–89.
Regarding the applicable law, the Court stated:
[T]he constitutional provisions of the Democratic Republic of the Congo, namely articles 153(4) and 215 of 18 February 2006 [Constitution (2006)], authorize both civil and military courts and tribunals to apply duly ratified international agreements and treaties, and give them higher authority than domestic legislation. This constitutional authorization combined with the self-executing nature of the … [1998 ICC] Statute justify the direct application of this treaty by Congolese courts and tribunals.
Democratic Republic of the Congo, Military Garrison Court of Ituri-Bunia, Barnaba Yonga Tshopena case, Judgment, 9 July 2010, § 63.
Japan
In its judgment in the Shimoda case in 1963, Japan’s District Court of Tokyo stated:
Dropping an atomic bomb on undefended towns should … be deemed the same as blind bombing, if it is not an attack on defended towns. Such an act should be recognized as violating international law at that time.
Japan, District Court of Tokyo, Shimoda case, Judgment, 7 December 1963.
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.
Angola
The Report on the Practice of Angola recalls Article 59 of the 1977 Additional Protocol I and the prohibition on waging hostilities against undefended areas.
Report on the Practice of Angola, 1998, Chapter 5.
Bosnia and Herzegovina
The Report on the Practice of Bosnia and Herzegovina states: “It is forbidden to attack a place which has been declared an ‘open city’.”
Report on the Practice of Bosnia and Herzegovina, 2000, Chapter 1.8.
Botswana
The Report on the Practice of Botswana states that, in general, non-defended localities should not be attacked and cites Article 59 of the 1977 Additional Protocol I.
Report on the Practice of Botswana, 1998, Chapter 1.8.
China
During the Korean War, the Chinese Government blamed US forces for the bombardment of undefended areas. In a statement before the 18th International Conference of the Red Cross in Toronto in 1952, the head of the Chinese delegation denounced the fact that “undefended cities and villages were wantonly bombarded” and “a large number of peaceful civilians killed”.
China, Statement of 30 July 1952 at the 18th International Conference of the Red Cross, Toronto, 26 July–7 August 1952, reprinted in Documents on Foreign Affairs of the People’s Republic of China, World Knowledge Press, Beijing, Vol. 2, pp. 82–83.
China
The Report on the Practice of China states that an occupying power shall not damage or destroy a city and its facilities in case of enemy withdrawal from the occupied territory, the reason being that the city is then, in fact, undefended.
Report on the Practice of China, 1997, Chapter 1.8.
Egypt
In its written comments on other written statements submitted to the ICJ in the Nuclear Weapons case in 1995, Egypt declared: “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.”
Egypt, Written comments on other written statements submitted to the ICJ, Nuclear Weapons case, September 1995, p. 21, § 50.
Egypt
According to the Report on the Practice of Egypt, “Egypt thinks that protection of open towns [and] undefended areas … 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.
France
The Report on the Practice of France states that attacks against protected zones are prohibited.
Report on the Practice of France, 1999, Chapter 1.8.
India
The Report on the Practice of India states: “In cases of internal conflict there will be rare occasions when special protection is necessary for open towns or undefended areas.”
Report on the Practice of India, 1997, Chapter 1.8.
Iraq
According to the Report on the Practice of Iraq, all official documents, including military communiqués and political speeches, issued during the Iran–Iraq War confirm that open cities were not subjected to strikes of any kind.
Report on the Practice of Iraq, 1998, 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 undefended areas by Iraqi armed forces during the Iran–Iraq War.
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 undefended areas is part of customary international law.
Report on the Practice of Nigeria, 1997, Chapter 1.8.
Rwanda
The Report on the Practice of Rwanda notes that no practice could be found concerning undefended areas. However, referring to an interview held with the President of the Military Tribunal, it also states that such zones would be protected according to the modalities of the agreement concluded between 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.
Serbia and Montenegro
In its oral pleadings before the ICJ in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) in 2006, Serbia and Montenegro stated:
As regards the safe areas actually proclaimed by the Security Council, and to which the Applicant refers in its Reply (Chap. 5, para. 174), admittedly these should not have been exposed to armed attack. At the same time, however, they should have been completely disarmed in order to be completely protected.
Serbia and Montenegro, Oral pleadings before the ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), 15 March 2006, Verbatim Record CR 2006/19, p. 10, § 146.
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 non-defended localities.”
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
According to the Report on US Practice, the opinio juris of the United States concerning open towns and undefended areas generally follows the conditions and rules prescribed in Articles 59 and 60 of the 1977 Additional Protocol I.
Report on US Practice, 1997, Chapter 1.8.
Zimbabwe
According to the Report on the Practice of Zimbabwe, non-defended areas are not to be attacked, but they may be occupied.
Report on the Practice of Zimbabwe, 1998, Chapter 1.8.
No data.
No data.
No data.
No data.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that non-defended localities are “improvised protected zones” and that an attack against a non-defended locality constitutes a grave breach of the law of war.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, §§ 419 and 420.
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 the following war crime, when committed in an international armed conflict, be subject to the jurisdiction of the Court: “making non-defended localities the objects of attack”.
ICRC, Working paper on war crimes submitted to the Preparatory Committee for the Establishment of an International Criminal Court, 14 February 1997, § 1(b)(iv).
No data.
