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

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

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

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

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

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

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

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

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

4. However, the parties to a conflict may agree to the establishment of a non-defended locality even where these conditions are not all satisfied.

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6. An area loses its status as a non-defended locality when it ceases to fulfil the conditions described above or in an agreement between adverse parties to establish the non-defended locality. 

IV.2. Protected zones

The law of armed conflicts makes provision for various protected zones or localities. … Attacks against these zones or localities are prohibited.

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IV.6. Non-defended localities

They are places deliberately left without defence, in order to protect the civilian population and its goods against any attack or damage. … These localities are sometimes also called open towns. 

In order to protect the civilian population as a whole or particularly vulnerable persons … it is possible, by common agreement between the parties, to establish safety zones, both during the conflict (for example in the form of an “open town”), or “demilitarized zones” in time of peace. Such zones must not be attacked militarily. On the other hand, they must also no longer be defended against the advancing of the enemy.  [emphasis in original]

II.3.3. Non-defended localities

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

A Party to the conflict may declare as a non-defended locality any inhabited place in or near a zone where armed forces are in contact. The non-defended locality is therefore open for occupation by the adverse Party. …

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Any area loses its status as non-defended locality if it ceases to respect the conditions described above or agreed between the adverse Parties regarding the establishment of non-defended localities. 

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

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

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

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

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

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

During the Second World War, cities were several times declared “open”. In June 1940, for example, the French Government declared Paris and Bordeaux, among other places, open cities. In 1945 the Allies declared Rome an open city after landing in Italy. 

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

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

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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]. 

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

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

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

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

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

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

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

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

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

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

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

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

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

A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for life. 

A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for life. 

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

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

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

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

[The following are] considered as war crimes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

26.3. The following are war crimes:

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

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

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

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

The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

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

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… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …

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On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

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The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …

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… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

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To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

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Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …

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

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

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In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

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To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

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According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

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I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

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Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 

As regards the safe areas actually proclaimed by the Security Council, and to which the Applicant refers in its Reply (Chap. 5, para. 174), admittedly these should not have been exposed to armed attack. At the same time, however, they should have been completely disarmed in order to be completely protected.