Ukraine Symposium – Protected Zones in International Humanitarian Law

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| Aug 24, 2022

Protected Zones

Ongoing hostilities between Russia and Ukraine are placing the Zaporizhzhia nuclear power plant, which lies in Russian-occupied territory, at great risk. Damage to the facility could be so catastrophic that U.N. Secretary-General Guterres has warned, “We must tell it like it is – any potential damage to Zaporizhzhia is suicide.”

In light of that reality, he has repeatedly called on the parties to address the situation. Last Thursday, for instance, he urged,

The facility must not be used as part of any military operation. Instead, agreement is urgently needed to reestablish Zaporizhhia as purely civilian infrastructure and to ensure the safety of the area…. Military equipment and personnel should be withdrawn from the plant. Further deployment of forces or equipment to the site must be avoided. The area needs to be demilitarized (emphasis added).

Sadly, Russian opposition makes the establishment of a demilitarized zone highly unlikely.

In this series on Ukraine, Professor Tom Dannenbaum has twice (here and here) analyzed the situation at the plant under international humanitarian law (IHL). Therefore, in this “explainer” on IHL zones, I will limit any discussion of Zaporizhzhia to the legal framework for demilitarized zones. I then widen the aperture to survey other types of protected zones, such as hospital zones, safety zones, neutralized zones, and non-defended localities. Finally, I will briefly mention safe areas that are declared outside the framework of IHL.

Although the emphasis is on the law governing zones in international armed conflict, parties to a conflict may establish them by special agreement during a non-international armed conflict. Common Article 3(3) of the four 1949 Geneva Conventions expressly provides for this possibility. And the ICRC asserts, reasonably so, that the Rules in its Customary International Humanitarian Law study regarding attacks on protected zones that I cite below also apply in non-international armed conflict.

Before turning to the zones themselves, it must be emphasized that other IHL rules providing protection to persons, objects, and activities continue to apply fully in them. The protection offered by establishing a zone is additional to that already in operation. Sadly, however, it is when the parties to a conflict are not complying with those IHL protections that the establishment of protected zones is usually considered.

Demilitarized Zones

Demilitarized zones are areas that may not be occupied or used for military operations. They may be established where no forces are present or where they are currently located. In the former case, the area may not be used for military operations following establishment, whereas in the latter, troops and equipment involved in operations must be withdrawn. Typically, demilitarized zones are located some distance from the hostilities (unlike the neutralized zones discussed below), although, as the Zaporizhzhia case illustrates, this need not always be the case.

Such zones have been created by treaty as part of an armistice or for political reasons, as with the Korean DMZ agreed to in the 1953 Armistice Agreement. However, the ICRC’s 1987 Commentary points out that the zones contemplated in IHL “have a humanitarian and not a political aim; they are specially intended to protect the population living there against attacks.” In the case of Zaporizhzhia, that protection would be from the danger posed by a radioactive release that extends well beyond the local area, even into Russia.

Article 60 of the 1977 Additional Protocol I to the 1949 Geneva Conventions, to which both Russia and Ukraine are Party, provides for such zones. They are established through an express agreement between the parties that may be executed verbally or in writing. Parties to the conflict can directly negotiate them, or negotiations can be conducted through an intermediary such as a Protecting Power or an “impartial humanitarian organization” like the ICRC. In practice, the ICRC is usually heavily involved. Potential adversaries also may negotiate such an agreement during peacetime, although the ICRC’s 1987 Commentary to the article labels that possibility “rather theoretical.”

While the parties may tailor individual agreements to the circumstances, Article 60 describes what a typical demilitarized zone agreement should include. It should, of course, set out its boundaries. Further, the agreement would typically require the removal of combatants, weapons, and mobile military equipment from the area; prohibit the use of military installations and establishments within the zone for military purposes; ban acts of hostility into or in the zone by the parties or the population; and require the cessation of any activities in the zone related to military operations. In addition, demilitarized zones should be visibly marked in a manner agreed upon by the parties.

If one of the parties “materially breaches” (see Vienna Convention on Treaties, art. 3(3)) the terms of the agreement, the other party may terminate it, should it so wish. In such a case, the zone is no longer demilitarized. Still, as noted earlier, persons and objects protected by IHL, like civilians, civilian objects, and nuclear electrical generating stations such as Zaporizhzhia, would continue to enjoy the protections to which IHL otherwise provides. These include the prohibition on direct targeting, the benefits of the rule of proportionality, and the requirement to take precautions in attack to minimize the risk of collateral damage to them during an attack on a lawful military objective.

In addition to the limits and requirements outlined in Article 60, the ICRC’s Customary International Humanitarian Law study observes that customary law prohibits “directing an attack against a demilitarized zone agreed upon between the parties to the conflict” (Rule 36), a prohibition that is implicit in Article 60.

Hospital Zones and Localities for Wounded and Sick Members of the Armed Forces

Article 23 of the 1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field contemplates establishing hospital zones and localities to protect wounded and sick combatants and medical personnel (see also DoD Law of War Manual, § 5.14.3.2). The establishment of such zones may occur before the conflict (never done to my knowledge) or by agreement on or following the outbreak of hostilities. Importantly, occupying powers may create a hospital zone or continue one its adversary established before occupation. Protecting Powers, if any, and the ICRC may facilitate the adoption of an agreement and subsequent recognition of hospital zones and localities.

The zones should not contain military objectives, and targetable combatants must not seek shelter within them. An Annex to the Convention contains a detailed draft agreement, Article 2 of which provides, “No persons residing, in whatever capacity, in a hospital zone shall perform any work, either within or without the zone, directly connected with military operations or the production of war material.” Other provisions ban the transport of military personnel or equipment through the zone and forbid defending them militarily (art. 5). The zones should “comprise only a small part of the territory governed by the Power which has established them;” be sparsely populated; be distant from “military objectives, or large industrial or administrative establishments;” and be located in areas unlikely to become of military importance (art. 4).

Although Article 23 does not address marking, the draft agreement provides that the zones must be marked with a Red Cross, Red Crescent, or Red Crystal (art. 6, as modified by Additional Protocol III). Failure to be so marked does not deprive a medical facility or location of IHL protection if the enemy is aware of its use for medical purposes. Perfidious misuse of these emblems is an IHL violation and a grave breach, which is discussed below (Additional Protocol I, art. 85(3)(f)).

The ICRC’s International Humanitarian Law study cites the creation of hospital zones during conflicts in Bangladesh, Cambodia, Chad, Cyprus, Nicaragua, Lebanon, Sri Lanka, and the former Yugoslavia. Interestingly, during the Falkland/Malvinas war between the United Kingdom and Argentina, the parties negotiated a location at sea (the so-called “Red Cross Box”) where hospital ships were located, and the wounded could be exchanged. This was so even though the Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea contains no provision analogous to Article 23 of GC I.

Rule 35 of the ICRC’s Customary International Law study convincingly provides that “[d]irecting an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities is prohibited” under customary law. Note that the rule would apply equally to the hospital and safety zones for civilians and neutralized zones discussed in subsequent sections.

Hospital and Safety Zones and Localities for Civilians

Article 14 of the 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons provides for zones to protect the wounded, sick, elderly (undefined), children under fifteen years of age, expectant mothers, and mothers of children under seven (see also DoD Law of War Manual, § 5.14.3.1). As the ICRC’s 1958 Commentary explains, “[t]hese various categories among the civilian population are based on a very simple criterion: they are persons who are taking no part in the hostilities and whose weakness makes them incapable of contributing to the war potential of their country; they thus appear to be particularly deserving of protection.”

Hospital zones and localities serve the same function as those discussed above for wounded or sick combatants. Safety zones are areas where the individuals enumerated in Article 14 can seek shelter. Although the provision cites specific categories of especially vulnerable persons, IHL does not bar other civilians from finding shelter in the zones, so long as they comply with the limits described below.

Like the zones for wounded and sick military personnel, these zones may be established during peacetime, although that has not occurred. The parties may also agree to their establishment and recognition upon the outbreak of, or during, the conflict. Article 14 provides that Protecting Powers and the ICRC may facilitate establishing and recognizing such zones and localities.

As with GC I, GC IV contains a draft agreement in an annex. It includes provisions tracking those in GC I’s draft agreement. The draft bars persons residing in a hospital or safety zone from performing work related to military operations or the production of war materials, including when they perform that work outside the zone (art. 2). The party that established the zone should also “take all necessary measures” to bar individuals who are not residing in the zone from entering it (art. 3). And the draft agreement imposes the same limitations described above for military hospital zones regarding size, population density, proximity to military objectives, and likelihood of becoming the site of hostilities (art. 4), while also prohibiting the transportation of military personnel and material through the area and defending it militarily (art. 5).

Civilian hospital and safety zones should be marked with oblique red bands on a white background placed on buildings and in other visible areas. Additionally, facilities exclusively used to treat the wounded and sick must be marked, like their military counterparts, with a Red Cross, Red Crescent, or Red Crystal (annex, art. 6). Perfidious misuse of medical marking is, as with those on military medical facilities, a violation of IHL by the party concerned and a grave breach [Additional Protocol I, art. 85(3)(f)].

Although such zones are established for civilians, the medical facilities concerned may treat wounded combatants without forfeiting the zone’s protected status. The same is true analogously for hospital zones established for military personnel; they may treat civilians without losing their protected status.

Both the Russian and Ukrainian IHL manuals recognize the protection to which hospital and safety zones are entitled (see here).

Neutralized Zones

Geneva Convention IV also provides for neutralized zones in areas where hostilities are occurring (see also DoD Law of War Manual, § 5.14.3.3). According to Article 15, a party may propose the establishment of a zone in the vicinity of the fighting to protect the 1) wounded and sick, whether military or civilian, and 2) civilians who take no part in the hostilities and, while residing in the zone, perform no “work of a military character.” Neutralized zones are typically used as quick, temporary solutions when hostilities pose an immediate and serious risk to these individuals. In this sense, they differ from hospital and safety zones, which are more permanent and usually further removed from the hostilities.

The reference to “no part in hostilities” predated the advent of the term “direct part in hostilities” in the 1977 Additional Protocols that was the subject of the somewhat controversial (see vol. 42(3)) 2009 ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities (AP I, art. 51.3; AP II, art. 13(3)). In its 1958 Commentary to Article 15, the ICRC gives the example of members of a levée en masse or an organized resistance movement. Nevertheless, those who qualify as direct participants in the current sense of the term would also be excluded from the neutralized zone.

As they are generally responsive to a tactical situation where fighting is occurring, neutralized zones are established only during armed conflict. Article 15 refers to a written agreement, but the ICRC’s Commentary clarifies that verbal agreements (e.g., by radio) are permissible in emergency situations. The agreement should set the zone’s location, administration, food supply, and supervision. It may be negotiated directly or facilitated by a neutral state (not limited to a Protecting Power) or a humanitarian organization like the ICRC. Since a neutralized zone is generally set up on a temporary basis, the agreement would indicate its duration.

The area concerned need not be completely de-militarized before being protected unless provided for in the agreement. This is because of the speed with which one may need to be set up to provide protection from the hostilities. But the ICRC’s Commentary emphasizes that “any activity which helped current military operations, directly or indirectly, would be incompatible with the very idea of neutralized zones.” Clearly, attacks into the zone are prohibited so long as the terms of the agreement are materially honored. If they are not, the aggrieved party may terminate the agreement, although doing so is not required. While Article 15 does not set forth a method of marking a neutralized zone, the Commentary suggests doing so in the same manner as provided for in the Geneva Convention for annex regarding hospital and safety zones and localities.

Note that zones may have multiple purposes. For instance, the 1991 Agreement between Croatia and the Socialist Federal Republic of Yugoslavia on a Protected Zone around the Hospital of Osijek was adopted in accordance with Article 23 of GC I and Articles 14 and 15 of GC IV. Placed under ICRC supervision, the area was open only to

sick and wounded civilian and military personnel; family members visiting patients recovering in the hospital; persons aged over 65 years, children under 15, expectant mothers and mothers of children under seven, taking no part in the hostilities; medical and administrative personnel of the hospital of Osijek; [and] ICRC delegates and ICRC local staff. (para. 4(1)).

Non-defended Localities

Article 59 of Additional Protocol I provides for non-defended localities that parties to the conflict are prohibited from attacking “by any means whatsoever.” They consist of inhabited areas “near or in a zone where armed forces are in contact” that a party declares “open” for occupation by its adversary.

The prohibition in Article 59 draws on Article 25 of the Regulations annexed to the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land: “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited” (see also 1899 Hague II Regulations, art. 25). As the DoD Law of War Manual explains,

Historically, open or undefended status for a town, village, or city would be sought as opposing military forces approached and the military forces previously controlling the city abandoned it. Undefended or open status would essentially surrender the city to the opposing force; this minimized injury to the inhabitants and damage to civilian objects within the city because the city could be occupied without resistance or bypassed (§ 5.15.1).

It must be cautioned that the non-defended zone must be near or in a zone of hostilities and open for occupation. The Law of War Manual emphasizes this point:

Thus, a city in rear areas behind enemy lines cannot be ‘undefended.’ For example, a party to a conflict cannot declare a city or other population center to be undefended if it is several hundred miles behind the area of ground conflict where it would not be feasible for opposing ground forces to occupy it (§ 5.15.3.1).

To enjoy non-defended status, all combatants (except the wounded and sick), weapons, and mobile military equipment must be removed from the area; fixed military installations may not be used for hostile purposes; local authorities and the civilian population must refrain from acts of hostility; and activities supporting military operations have to be forbidden (AP I, art. 59(2) and DoD Law of War Manual, § 5.15.4).

The party declaring the zone must transmit its declaration to the adversary, which must acknowledge and respect it so long as the aforementioned conditions are satisfied. The ICRC’s 1987 Commentary to Article 59 discusses procedures for situations in which the adversary objects that the requite conditions have not been satisfied. In rare cases, however, the parties may agree that certain conditions need not be fulfilled fully before the protections of non-defended locality status apply (as in the case of ongoing removal of military forces, see DoD Law of War Manual, § 5.15.5). Non-defended localities should be marked as agreed upon between the parties.

It should be cautioned that the failure to have an agreement in place does not permit an attack on a location that is undefended. As the DoD Law of War Manual points out, “[a]lthough there is no explicit treaty requirement that a city be declared undefended before achieving that status, the practice has been to make such declarations to the opposing party” (§5.15.3.2).

Humanitarian Corridors

While IHL does not expressly provide for humanitarian corridors, the parties may negotiate their establishment to facilitate safe passage through an area for a set time. For example, they may be used to allow evacuation of a besieged area or the transportation of humanitarian assistance into an area.

Such corridors have been established in the Russia-Ukraine war with the assistance of the ICRC and the United Nations. Most notable in this regard was the evacuation of over 10,000 civilians in March 2022 from Sumy and Mariupol. They also have been used in other conflicts, as in the 2016 evacuation of 25,000 civilians from Eastern Aleppo in an operation facilitated by the ICRC and the Syrian Red Cross.

Safe Areas

The previous zones are expressly provided for in IHL treaty law, much of which reflects customary law. But a practical limiting factor is that their establishment requires a degree of agreement between the parties. Indeed, the requirement for agreement accounts, as in the case of Zaporizhzhia, for the infrequency of zones being established. This explains why several types of “safe areas” (also labeled “safe havens” or “safe humanitarian zones”) have been established without the parties’ consent (see Emanuela-Chiara Gillard).

The soundest legal basis for the non-consensual establishment of a protective zone is when the U.N. Security Council exercises its authority under Chapter VII of the U.N. Charter (see discussion in 1999 Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict). This was most memorably done in 1993 when the Security Council established one for Srebrenica and surrounding areas in Bosnia and Herzegovina (S/RES 819). The Council soon extended it to various other locations, including Sarajevo and Tuzla (S/RES/824). Although the Security Council authorized the U.N. Protection Force (UNPROFOR) to use force to protect the safe areas (S/RES/836), it failed to do so when in July 1995 the Bosnian Serb army massacred 8,000 Bosniak men and boys in Srebrenica.

Sometimes, the legal basis for establishing a safe area has been questionable, leading some to label them “unlawful but legitimate.” Noteworthy in this regard were the safe havens enforced in part by no-fly zones over northern and southern Iraq established following the first Gulf War (Provide Comfort, Southern Watch, Northern Watch). Provide Comfort was ostensibly based on Security Council Resolution 688, which required Iraq to afford access to humanitarian assistance. But the legal basis for using ground and air forces to secure the humanitarian zones was somewhat less definitive (see here).

International Criminal Law

Although attacking the zones described above may constitute an internationally wrongful act by the State concerned, in some cases, those involved may also be individually criminally responsible.

Under Additional Protocol I, “making non-defended localities and demilitarized zones the object of attack” is a “grave breach” (art. 85(3)(d)). As a grave breach, Parties to the treaty must adopt legislation criminalizing such attacks, search for those who have engaged them, and bring those individuals before its courts or extradite them to another State. All States enjoy jurisdiction over grave breaches. The ICRC’s 2016 Commentary appears to suggest that the status would equally apply to attacks on hospital and safety zones, presumably regardless of whether for combatants or civilians (¶ 1909). By this approach, with which I agree, attacking a neutralized zone would also amount to a grave breach.

The prohibition also appears in the Rome Statute of the International Criminal Court. Article 8(2)(b)(v) makes “[a]ttacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives” a war crime. Further, “[i]ntentionally directing attacks against … hospitals and places where the sick and wounded are collected, provided they are not military objectives” is a war crime under Articles 8(b)(ix) (international armed conflict) and 8(2)(e)(iv) (non-international). Of course, attacking civilians is a war crime regardless of whether they are in a protected zone (arts. (8)(2)(b)(i) and 8(2)(e)(i). Other tribunals likewise treat such actions as war crimes. For instance, Article 3(c) of the Statute of the International Tribunal for the Former Yugoslavia qualifies an “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings” as such.

Finally, the International Law Commission’s 1996 Draft Code of Crimes against Peace and Security of Mankind provides that “[a]ttack, or bombardment, by whatever means, of …demilitarized zones” is a war crime  (art. 20(e)(iii)).

Concluding Thoughts

Except for the limited humanitarian corridors that were torturously negotiated, the conflict in Ukraine has sadly seen the establishment of none of the protected zones described above. This fact signals the weakness inherent in requiring agreement between the parties for the establishment of IHL zones. And the presence on the U.N. Security Council of Russia, which wields a veto and is engaged in repeated IHL violations, illustrates the baked-in challenge of establishing safe areas outside the IHL framework.

However, the absence of protected zones to date does not detract from the possible benefits they may offer later in this conflict or future ones. Given the requirement that such zones not be used for military purposes, there is little reason for belligerents to oppose their establishment, so long as all sides are willing to respect them. They deserve far greater attention than they have enjoyed.

***

Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading; Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College; and Strauss Center Distinguished Scholar and Visiting Professor of Law at the University of Texas.

 

Photo credit: Pexels

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