Protected Zones in Warfare: Practical Considerations and the Role of the Legal Advisor
International humanitarian law (IHL) contemplates that the parties to an armed conflict may create protected zones. These zones can shield certain categories of persons from the direct and indirect effects of armed conflict.
There are various kinds of protected zones. Hospital zones are intended to shelter the wounded and sick, both military personnel and civilians (Geneva Convention (GC) I, art. 23; GC IV, art. 14). Safety zones are intended for vulnerable persons, such as those who are “wounded, sick, and aged persons, children under fifteen, expectant mothers, and mothers of children under seven” (GC IV, art. 14). Demilitarized zones are areas that may not be occupied or used for military operations (Additional Protocol I, art. 60). Neutralized zones are intended to shelter civilians who take no part in hostilities as well as wounded and sick combatants. Unlike hospital, safety and demilitarized zones—which are meant to be away from the hostilities —neutralized zones are generally established in the actual regions where fighting is taking place (GC IV, art. 15).
This post addresses some of the practical considerations related to protected zones and the legal advisor’s (LEGAD’s) role regarding such zones. Although few have been established in past armed conflicts, we believe that protected zones offer promise for expanding humanitarian protection. Agreements relating to such zones must be carefully crafted to protect those sheltered in the zones, ensure proper supervision, and minimize misunderstandings that could lead to abuse or violations within the zone.
Crafting the Agreement
Parties to a conflict may establish protected zones by verbal or written agreement. Agreements may be concluded either directly or through a Protecting Power or any impartial humanitarian organization.
To initiate such an agreement, it must first be determined who has the authority to conclude a bilateral or multilateral agreement creating a zone under the domestic legal framework of the State concerned. For some States, the relevant head of State could be the approving authority. This authority could also be delegated. In some cases, the chief of defence staff will have the proper authority for such agreements. In other cases, such as neutralized zones, which are generally meant to be established where fighting is taking place, a task force commander or other similarly placed senior military officer could be the appropriate authority for the agreement.
Once the decision to establish a zone and seek mutual recognition is taken, the agreement must be negotiated between the parties. The negotiation of details for these zones should be based on what is needed and achievable in the circumstances. In practice, zones can be combined. For example, decisionmakers may choose to accommodate wounded civilians, civilians seeking shelter and wounded members of the armed forces in the same zone.
Where the choice is a written instrument, legal advisors should consider the principles reflected in the Vienna Convention on the Law of Treaties. States parties may choose a treaty format or establish their consent by exchange of diplomatic notes or letters. A carefully drafted written agreement can prevent misunderstanding and support effective implementation of the proposed zone. Verbal agreements, on the other hand, have the advantage of simplicity and speed. As an example, the Red Cross Box—a zone at sea established during the Falklands War with no special written agreement—illustrates that parties can successfully establish protected or other zones without an express written agreement.
The annexes to Geneva Conventions I and IV contain detailed model agreements for hospital and safety zones. Parties to a conflict may use them as draft agreements for any protected zones and make “such amendments as they may consider necessary” (GC I, art. 23; GC IV, art. 14). The goal is to avoid uncertainty and reduce the potential for violations caused by misunderstandings.
LEGADs must be aware of their clients’ tactical, operational, and strategic constraints and restraints to properly support negotiations. LEGADs should also work closely with operational clients to help ensure that any conditions proposed in an agreement are legally supportable and can be implemented and achieved.
Practical Considerations
Regarding location, the zone should generally be distant from the hostilities, free of military objectives, and unlikely to become significant for the conduct of the armed conflict. As noted above, this is not the case for neutralized zones which, in contrast, are intended to be located near the hostilities. As zones may be established in occupied territory, LEGADs should consider the legal obligations related to occupation.
The zone should be appropriately limited in terms of size, categories and number of people accommodated, and duration. Parties will be less likely to see a reasonably sized zone as an inappropriate attempt to shield territory, a potential military threat, or an unreasonable impediment to military operations. Failing to limit the scope of the zone could make decision-makers more cautious about concluding an agreement, as they necessarily balance competing military considerations such as freedom of maneuver.
From a resource perspective, a limited scope may increase the potential for both meeting the needs of individuals sheltering in the zone and for addressing security concerns as they arise. Larger zones may put additional strain on limited military personnel resources, which could negatively affect a party’s willingness and ability to establish or maintain the zone.
In addition, the agreement should provide clear guidance on who is allowed into the zone, the criteria for screening, and responsibilities of the security personnel who conduct such screening. Properly addressing these matters will help to ensure the legitimacy of the zone and thwart attempts to use it unlawfully. This is especially important where third party adversaries might seek to infiltrate zones and either undermine their effectiveness or otherwise exploit them to their advantage.
Another practical detail involves identifying who will be responsible for operating the zone and for providing for the basic needs of individuals in the zone. Historically, these roles were assumed by the International Committee of the Red Cross (ICRC) (e.g. Osijek Hospital). However, the ICRC has no mandate to carry out screening, disarming, or maintenance of law and order.
A mechanism to address violations of the agreement could increase mutual trust and help to prevent a zone from losing its status. As an example, Article 9 of the draft agreements found in the annexes of Geneva Conventions I and IV proposes the creation of a Special Commission and a period of five days to correct a violation before the opposing party is no longer bound by the agreement.
LEGADs at all levels can bring significant value to the successful establishment and operation of a zone in a variety of ways. For example, LEGADs can help ensure that the agreement’s terms are consistently reflected in orders, targeting directives, no-strike lists, rules of engagement (ROE), and soldier cards for personnel (including for security, screening, and monitoring tasks). They can also support training for the military forces assigned to the zone, including on IHL and the approved ROE framework. LEGADs’ support to the tactical chain of command, as they brief the ROE, can assist with proper interpretation of the agreement, build confidence and clarity for soldiers protecting the zone, and reduce the likelihood of an unauthorized use of force. LEGADs can also add value by supporting key leader engagements between their commanders and those entities that share responsibility and concern for the successful operation of the zone (whether international agencies, host nation representatives, or even designated interlocutors from other parties to the armed conflict).
As mentioned above, in cases where the agreement is not respected, a protected zone may lose its protection under IHL. LEGADs can play a critical role to help commanders understand the circumstances in which a zone that has lost its protection can be lawfully attacked. As with any attack, legal advisors must be prepared to advise commanders on the applicable IHL rules (such as distinction, proportionality, and precautions).
Concluding Thoughts
By maintaining close and proactive integration with commanders and staff at all stages from planning to execution and beyond, LEGADs can identify key issues at an early stage, and provide practical advice to address them. This can help decision-makers successfully navigate the many challenges associated with the establishment and implementation of protected zones, which are an important but often underutilized tool for enhancing protection for those persons negatively affected by armed conflict.
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LCdr Amélie Aubut is the Deputy Director and a Legal Officer in the Directorate of International and Operational Law of the Office of the Judge Advocate General in the Canadian Armed Forces.
Photo credit: Ministry of Defense of Ukraine
