(a) Specific protection must be provided to civil defence organizations and their personnel, whether civilian or military. They must be entitled to perform their civil defence tasks except in the case of imperative military necessity.
[Commentary]
(b) Specific protection must also be provided to buildings and materiel used for civil defence purposes and to shelters provided for the civilian population. Objects used for civil defence purposes may not be destroyed or diverted from their proper use except by the Belligerent Party to which they belong.
[Commentary]
- Rule 90 (a) pertains to the specific protection of civil defence organizations and their personnel; in particular, the obligation to respect and protect such organizations and their personnel. It is based on two different provisions of AP/I, namely, Art. 62 (1) of AP/I[512] concerning civilian civil defence organizations and their personnel, and Art. 67 (1) of AP/I[513] concerning members of the armed forces and military units assigned to civil defence organizations. Although Rule 90 covers both civilian and military civil defence organizations and personnel, some disparities exist in the legal regime applicable to civilian or military civil defence. These will be dealt with below.
- For the purpose of this Manual, the term “civil defence organizations” comprises those establishments and other units which are organized or authorized by the competent authorities of a Belligerent Party to per-form any civil defence tasks, and which are assigned and devoted exclusively to such tasks.[514] The notion of “organizations” does not imply a large organizational set up. These organizations may be rather small establishments.
- For the purpose of this Manual, the “personnel” of civil defence organizations means those persons exclusively assigned by a Belligerent Party to the performance of civil defence tasks. This definition encompasses, in particular, individuals formally embodied in a unit corresponding to the definition of a civil defence organization.
- Rule 90 (a) ought not to be interpreted as restricting the specific protection to civil defence organizations and their personnel. Accordingly, civilians responding to an appeal from − and acting under the control of − the authorities of a Belligerent Party must equally be provided specific protection while performing civil defence tasks, even if they are not members of a civil defence organization.[515]
- Medical and religious personnel assigned to civil defence organizations retain their protection as medical or religious personnel. On the protection of medical and religious personnel[516], see Section K, in particular Rule 71.
- Assignment to civil defence tasks for a limited and even relatively short period is possible, provided that it is exclusive throughout that period. The fact that a civil defence assignment provides specific protection only when a person is exclusively so assigned does not detract from the general protection as a civilian this person enjoys before and after the assignment. During the assignment, and as long as the civilian exclusively performs civil defence tasks, he is entitled to specific protection beyond the general protection enjoyed as a civilian, as described in this Section of the Manual.
- The flexible system admitting a switch to and from civil defence assignments does not apply to military units of civil defence. These military units only benefit from specific protection if a number of cumulative conditions are fulfilled, including those of being permanently assigned and exclusively devoted to the performance of civil defence tasks and of not performing any other military duties during the conflict.[517] Once such personnel or units have been assigned to civil defence, they are forbidden − for the whole duration of the armed conflict − to perform any other military duty, in particular combat or combat support duty.[518]
- The obligation to respect and to protect civil defence organizations and their personnel implies that they may not be deliberately attacked and that they may not be unnecessarily prevented from carrying out their tasks. This latter element − expressly spelled out in the second sentence of Rule 90 − is subject to one exception: the right to perform civil defence functions is suspended in case of “imperative military necessity”. This limitation implies that military operations cannot be hindered by the activities of civil defence: a Belligerent Party is not compelled to change major operational military plans in order to avoid affecting civil defence activities.
- Art. 62 (1) of AP/I (“General Protection”): “Civilian civil defence organizations and their personnel shall be respected and protected, subject to the Rules of this Protocol, particularly the Rules of this Section. They shall be entitled to perform their civil defence tasks except in case of imperative military necessity.”
- Art. 67 (1) of AP/I (“Members of the armed forces and military units assigned to civil defence organizations.”): “1. Members of the armed forces and military units assigned to civil defence organizations shall be respected and protected, provided that:(a) such personnel and such units are permanently assigned and exclusively devoted to the performance of any of the tasks mentioned in Article 61; (b) if so assigned, such personnel do not perform any other military duties during the conflict; (c) such personnel are clearly distinguishable from the other members of the armed forces by prominently displaying the international distinctive sign of civil defence, which shall be as large as appropriate, and such personnel are provided with the identity card referred to in Chapter V of Annex I to this Protocol certifying their status; (d) such personnel and such units are equipped only with light individual weapons for the purpose of maintaining order or for self-defence. The provisions of Article 65, paragraph 3 shall also apply in this case; (e) such personnel do not participate directly in hostilities, and do not commit, or are not used to commit, outside their civil defence tasks, acts harmful to the adverse Party; (f) such personnel and such units perform their civil defence tasks only within the national territory of their Party. The non-observance of the conditions stated in (e) above by any member of the armed forces who is bound by the conditions prescribed in (a) and (b) above is prohibited.”
- Art. 61 (b) of AP/I: “For the purposes of this Protocol: … ‘civil defence organizations’ means those establishments and other units which are organized or authorized by the competent authorities of a Party to the conflict to per-form any of the tasks mentioned under sub-paragraph (a), and which are assigned and devoted exclusively to such tasks.”
- Art. 62 (2) of AP/I: “The provisions of paragraph 1 shall also apply to civilians who, although not members of civilian civil defence organizations, respond to an appeal from the competent authorities and perform civil defence tasks under their control.”
- Art. 8 (c) of AP/I, see fn. 394.
See also Art. 8 (d) (iv) of AP/I concerning religious personnel assigned to civil defence organizations, see fn. 395.
- Art. 67 (1) of AP/I, see fn. 513.
- Art. 67 (1) (a) and (b) of AP/I, see fn. 513.
- Rule 90 (b) extends the specific protection to buildings and materiel used for civil defence purposes and to shelters provided for the civilian population. Buildings used for civil defence purposes include those accommodating civil defence organizations. Examples include buildings for administrative purposes, stations for personnel of civil defence organizations on guard duty for civilian purposes, facilities used for storing of materiel, garages housing vehicles etc.[519]
- “Civil defence materiel” comprises equipment and supplies, as well as means of transport of civil de-fence organizations (on land, water or in the air).[520]
- Civil defence organizations may use aircraft for purposes such as rescuing or evacuating civilians from a zone of danger, extinguishing fires or transporting civil defence materiel. There is no explicit regulation of civil defence air transportation. However, the specific protection due to civil defence aircraft may be envisaged by analogy with that granted to medical aircraft. In other words, civil defence aircraft benefit from specific protection − even without the consent of the enemy − when operating in and over land areas physically controlled by friendly forces or in and over sea areas not physically controlled by the enemy. In and over areas controlled by the enemy, as well as in and over those parts of the contact zone which are physically controlled by friendly forces or the physical control of which is not clearly established, the protection of civil defence aircraft can be fully effective only by prior consent obtained from the enemy. In the absence of such consent, civil defence aircraft operate at their own risk. They must nevertheless be respected once they have been identified as such (see Rule 77 and Rule 78).
- Objects used for civil defence purposes may not be directly attacked. They may, however, suffer from collateral damage caused by an attack on a lawful target (see Rule 14). To a large extent, their vulnerability to becoming collateral damage depends on their separation from lawful targets. By comparison to other civilian objects, objects used for civil defence purposes can be marked with a distinctive sign (see Art. 66 of AP/I)[521], thereby enhancing the likelihood that they will be identified as civilian objects entitled to specific protection (see Rule 91).
- The right to destroy objects used for civil defence purposes or to divert them from their proper use is granted only to “the Party to which they belong”.[522]
- Para. 2454 of the ICRC Commentary on AP/I, pertaining to Art. 62 of AP/I: “The buildings concerned are those accommodating civil defence organizations, i.e., primarily their administrative services, but also the locations for personnel on guard duty, stores for ‘matériel,’ garages housing vehicles intended for civil defence etc.”
- Art. 61 (d) of AP/I: “For the purposes of this Protocol: … (d) ‘Matériel’ of civil defence organizations means equipment, supplies and transports used by these organizations for the performance of the tasks mentioned under sub-paragraph (a).”
- Art. 66 of AP/I, see fn. 523.
- Art. 62 (3) of AP/I: “Buildings and ‘matériel’ used for civil defence purposes and shelters provided for the ci-vilian population are covered by Article 52. Objects used for civil defence purposes may not be destroyed or diverted from their proper use except by the Party to which they belong.”
Belligerent Parties have to endeavour to ensure that – while exclusively devoted to the performance of civil defence tasks − their civil defence organizations, personnel, buildings and materials, as well as shelters provided to the civilian population, are identified as such by the recognized international distinctive sign for civil defence and any other appropriate means of identification.
[Commentary]
- Rule 91 is derived from Art. 66 of AP/I;[523] as well as from Art. 67 (1) of AP/I[524] and Art. 67 (3) of AP/I[525] dealing with identification of civil defence organizations, personnel, buildings and materials.
- The international distinctive sign of civil defence is an “equilateral blue triangle on an orange ground”.[526]
- Specific protection is granted to civilian civil defence organizations, personnel, buildings and materials because of their functions. The practical value of the recognized international distinctive sign (and any other appropriate means of identification) is to facilitate protection by increasing the likelihood that protected per-sons and objects will be identified as such. In fact, it would be complicated − under armed conflict conditions − to ensure effective protection of civil defence personnel and objects if there was no practical way of recognizing them. However, protection of civilian civil defence organizations, personnel, buildings and materiel is not dependent on their being marked with the international distinctive sign of civil defence; they are to be respected and protected from the moment they have been identified as such, even if they do not dis-play the international distinctive sign. By analogy, see Rule 72 (c) − (d), as well as Rule 76 (d).
- Military, as distinct from civilian, civil defence personnel benefit from specific protection only if they clearly distinguish themselves from combat personnel (see Art. 67 (1) (c) of AP/I).[527]
- Civil defence organizations, personnel, buildings and materiel must not display the distinctive sign if they are not exclusively devoted to civil defence tasks.
- Belligerent Parties have an obligation to supervise the use of the distinctive sign and to prevent and re-press possible misuse (see Art. 66 (8) of AP/I).[528] It would be a misuse of the emblem to display it as a civil defence protective sign on organizations, personnel, buildings or materiel which do not exclusively serve a civil defence purpose. In other words, even if a facility serves civil defence purposes, it may not use the emblem if the facility is also used for purposes inconsistent with its civil defence status. The defending Belligerent Party has an important role in ensuring the protection of these facilities by preventing misuse and thus promoting confidence in the right of the facilities to protection (see Section H).
- Belligerent Parties may agree upon the use of signals for identification purposes in addition to the distinctive sign (see Art. 66 (5) of AP/I).[529] This may be particularly important in the context of civil defence air transportation, where the distinctive emblem may provide insufficient protection due to “beyond visual range” targeting capabilities.
- Art. 66 of AP/I: “(1) Each Party to the conflict shall endeavour to ensure that its civil defence organizations, their personnel, buildings and matériel are identifiable while they are exclusively devoted to the performance of civil defence tasks. Shelters provided for the civilian population should be similarly identifiable. (2) Each Party to the conflict shall also endeavour to adopt and implement methods and procedures which will make it possible to recognize civilian shelters as well as civil defence personnel, buildings and matériel on which the international distinctive sign of civil defence is displayed. (3) In occupied territories and in areas where fighting is taking place or is likely to take place, civilian civil defence personnel should be recognizable by the international distinctive sign of civil defence and by an identity card certifying their status. (4) The international distinctive sign of civil defence is an equilateral blue triangle on an orange ground when used for the protection of civil defence organizations, their personnel, buildings and matériel and for civilian shelters. (5) In addition to the distinctive sign, Parties to the conflict may agree upon the use of distinctive signals for civil defence identification purposes. (6) The application of the provisions of paragraphs 1 to 4 is governed by Chapter V of Annex I to this Protocol. (7) In time of peace, the sign described in paragraph 4 may, with the consent of the competent national authorities, be used for civil defence identification purposes. (8) The High Contracting Parties and the Parties to the conflict shall take the measures necessary to supervise the display of the international distinctive sign of civil defence and to prevent and repress any misuse thereof. (9) The identification of civil defence medical and religious personnel, medical units and medical transports is also governed by Art. 18.”
- Art. 67 (1) of AP/I, see fn. 513.
- Art. 67 (3) of AP/I: “The buildings and major items of equipment and transports of military units assigned to civil defence organizations shall be clearly marked with the international distinctive sign of civil defence. This distinctive sign shall be as large as appropriate.”
- Art. 16 of Annex I to AP/I.
- Art. 67 (1) (c) of AP/I, see fn. 513.
- Art. 66 (8) of AP/I, see fn. 523.
- Art. 66 (5) of AP/I, see fn. 523.
The protection to which civilian civil defence organizations, their personnel, buildings, shelters and materiel are entitled does not cease unless they commit or are used to commit, outside their proper tasks, acts harmful to the enemy. Protection may, however, cease only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded.
[Commentary]
- Rule 92 restates almost verbatim Art. 65 (1) of AP/I.[530] It applies only to “civilian” civil defence organizations, their personnel, buildings, shelters and materiel in situations where there is valid reason for discontinuing the protection because they commit, or are used to commit, outside their proper tasks, acts harmful to the enemy. It ought to be noted that an act may be “harmful” without necessarily being “hostile”, i.e. acts without hostile intent may also lead to a loss of specific protection.[531]
- Art. 65 (2) of AP/I[532] provides for acts which are not considered as harmful to the enemy. These include the possibility that civil defence and military personnel cooperate in the performance of civil defence tasks or that civil defence tasks are carried out under the direction or control of military authorities. If the performance of civil defence tasks incidentally benefits military victims (particularly, those who are hors de combat), it cannot be considered as harmful to the enemy.
- According to Art. 65 (3) of AP/I,[533] civilian civil defence personnel are permitted to bear weapons without thereby losing their specific protection. However, this permission is subject to strict conditions. First, civil defence personnel are only entitled to bear light individual weapons (on the definition of this ex-pression, see paragraph 3 of the Commentary on Rule 74 (c) (i)). In the combat zone, the weapons must be limited to handguns − an even narrower concept than light individual weapons (see Rule 74 (c) (i) and Rule 82). Second, these weapons must only be used for the purpose of maintaining law and order in a stricken area or for self-defense against marauders or armed assailants, but not against the enemy. These provisions are modelled on those applicable to medical and religious personnel.
- Rule 92 needs to be read against the background of Rule 38. The requirement to issue a warning as per Rule 92 is an absolute one. This is to be differentiated from warnings mentioned, e.g., in Rule 37, which must be issued “unless circumstances do not permit”.
- Before protection ceases, a warning setting a reasonable time-limit must have been issued and ignored. The time-limit, however, need only be set “whenever appropriate”. There are situations in which it is impracticable to set a time-limit (see Commentary on Rule 74 (b)).
- The period must furthermore be “reasonable”, i.e. either (i) long enough to allow the acts harmful to the enemy to be stopped; or (ii) long enough for the wounded and sick who are within the medical units or medical transports to be removed to a place of safety. In some cases, it may be reasonable to require imme-diate compliance with a warning to desist from the acts harmful to the enemy or to remove the wounded and sick to a place of safety.
- The termination of specific protection to which civilian civil defence organizations, their personnel, buildings, shelter and matériel are entitled, does not necessarily mean that they can be attacked as such. It must be borne in mind that they may then benefit from the generic protection of civilians and civilian objects. An attack is contingent on the person or object qualifying as a lawful target (see Sections D; E; F and G).
- Art. 65 (1) of AP/I: “The protection to which civilian civil defence organizations, their personnel, buildings, shelters and ‘matériel’ are entitled shall not cease unless they commit or are used to commit, outside their proper tasks, acts harmful to the enemy. Protection may, however, cease only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded.”
- Para. 2588 of the ICRC Commentary on AP/I, pertaining to Art. 65 (1) of AP/I: “This expression [acts harmful to the enemy] was contested by some who would have preferred the term “hostile”, because of its “more specific” character. It is true that a harmful act can be committed unintentionally and the word “hostile” would have had the advantage of indicating intent to harm. … ”
- Art. 65 (2) of AP/I: “The following shall not be considered as acts harmful to the enemy: (a) that civil defence tasks are carried out under the direction or control of military authorities; (b) that civilian civil defence personnel co-operate with military personnel in the performance of civil defence tasks, or that some military personnel are attached to civilian civil defence organizations; (c) that the performance of civil defence tasks may incidentally benefit military victims, particularly those who are hors de combat.”
- Art. 65 (3) of AP/I: “It shall also not be considered as an act harmful to the enemy that civilian civil defence personnel bear light individual weapons for the purpose of maintaining order of for self-defence. However, in areas where land fighting is taking place or is likely to take place, the Parties to the conflict shall undertake the appropriate measures to limit these weapons to handguns, such as pistols or revolvers, in order to assist in distinguishing between civil defence personnel and combatants. Although civil defence personnel bear other light individual weapons in such areas, they shall nevertheless be respected and protected as soon as they have been recognized as such.”
(a) Belligerent Parties must refrain from any use of cultural property and its immediate surroundings, or of the appliances in use for its protection, for purposes which are likely to expose it to destruction or damage.
[Commentary]
(b) Cultural property or its immediate surroundings may only be used for military purposes in cases where military necessity imperatively so requires. Such decision can only be implemented after the emblems identifying the object in question as cultural property have been removed.
[Commentary]
- This Rule is based on Art. 4 (1) of the 1954 Hague Convention.[537] It obliges Belligerent Parties to refrain from using not only cultural property, but also its immediate surroundings and the appliances in use for its protection for purposes likely to expose it to destruction or damage.
- The formulation of Rule 93 (a) does not only prohibit the use of cultural property (or its surroundings) “for military purposes” (cf. Art. 9 of the 1954 Hague Convention)[538] or “in support of the military effort” (cf. Art. 53 (b) of AP/I),[539] but more broadly its use for any “purposes which are likely to expose it to destruction or damage”.
- As emphasized in Art. 4 (1) of the 1954 Hague Convention,[540] Rule 93 (a) applies to cultural property situated within a Belligerent Party’s own territory, as well as to cultural property situated within the territory of other High Contracting Parties. This includes occupied territory (Art. 5 of the 1954 Hague Conven-tion).
- As regards non-international armed conflict, see Art. 19 of the 1954 Hague Convention.[541]
- Art. 4 (1) of the 1954 Hague Convention: “The High Contracting Parties undertake to respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property.”
- Art. 9 of the 1954 Hague Convention: “The High Contracting Parties undertake to ensure the immunity of cultural property under special protection by refraining, from the time of entry in the International Register, from any act of hostility directed against such property and, except for the cases provided for in paragraph 5 of Article. 8, from any use of such property or its surroundings for military purposes.”
- Art. 53 of AP/I: “Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the military effort; (c) to make such objects the object of reprisals.”
- Art. 4 (1) of the 1954 Hague Convention, see fn. 537.
- Art. 19 of the 1954 Hague Convention (“Conflicts not of an international character”): “(1) In the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property. (2) The parties to the Conflict shall endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. (3) The United Nations Educational, Scientific and Cultural Organization may offer its services to the parties to the conflict. (4) The application of the preceding provisions shall not affect the legal status of the parties to the conflict.”
- The first sentence of Rule 93 (b) is based on Art. 4 (2) of the 1954 Hague Convention.[542]
- Rule 93 (b) sets out an exception to the prohibition contained in Rule 93 (a), envisioning the rare cases where military necessity imperatively requires the use of cultural property or its immediate surroundings for military purposes (e.g., if an historic bridge is the only available means to cross a river). According to the majority of the Group of Experts, imperative military necessity may only be invoked when and for as long as there is no other feasible method for obtaining a similar military advantage.[543]
- Naturally, if a Belligerent Party decides – for reasons of imperative military necessity – to use cultural property, or its immediate surroundings, for military purposes, it must no longer display the distinctive em-blem, assuming that such emblem is being used (see Rule 94).
- Rule 93 (b) applies also in non-international armed conflict. Its applicability is derived from Art. 19 (1) of the 1954 Hague Convention.[544]
- Art. 4 (2) of the 1954 Hague Convention: “The obligations mentioned in paragraph 1 of the present Article may be waived only in cases where military necessity imperatively requires such a waiver.”
- Art. 6 (b) of the Second Protocol to the 1954 Hague Convention: “With the goal of ensuring respect for cultural property in accordance with Article 4 of the Convention: … (b) a waiver on the basis of imperative military neces-sity pursuant to Article 4 paragraph 2 of the Convention may only be invoked to use cultural property for purposes which are likely to expose it to destruction or damage when and for as long as no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage.”
- Art. 19 of the 1954 Hague Convention, see fn. 541.
Belligerent Parties ought to facilitate the identification and protection of cultural property under their control, by marking it with the internationally recognized emblem and by providing the enemy with timely and adequate information about its location. However, the absence of such measures does not deprive cultural property of its protection under the law of international armed conflict.
[Commentary]
- Rule 94 is partially based on Art. 6[545] and Art. 17 (1) − (2)[546] of the 1954 Hague Convention. The option to mark cultural property and to inform the enemy about its location is designed to enhance protection by making such property distinct from other objects in the vicinity.
- The distinctive emblem is the so-called “blue-and-white shield”. This emblem takes (Art. 16 of the 1954 Hague Convention) the form of a shield, pointed below, per saltire blue and white (a shield consisting of a royal-blue square, one of the angles of which forms the point of the shield, and of a royal-blue triangle above the square, the space on either side being taken up by a white triangle).
- As highlighted by the words “under their control”, Rule 94 applies to cultural property situated either within a Belligerent Party’s own territory, or in occupied territory.
- The absence of the distinctive emblem does not deprive cultural property of its protection, which is derived from the law of international armed conflict, and does not depend on the emblem. The emblem is merely provided to facilitate identification (cf. Rule 72 (d)).
- Rule 94 applies also in non-international armed conflict.
- Art. 6 of the 1954 Hague Convention (“Distinctive marking of cultural property”): “In accordance with the provisions of Article 16, cultural property may bear a distinctive emblem so as to facilitate its recognition.”
- Art. 17 (1) and (2) of the 1954 Hague Convention (“Use of the emblem”): “(1) The distinctive emblem re-peated three times may be used only as a means of identification of: (a) immovable cultural property under special pro-tection; (b) the transport of cultural property under the conditions provided for in Articles 12 and 13; (c) improvised refuges, under the conditions provided for in the Regulations for the execution of the Convention. (2) The distinctive emblem may be used alone only as a means of identification of: (a) cultural property not under special protection; (b) the persons responsible for the duties of control in accordance with the Regulations for the execution of the Convention; (c) the personnel engaged in the protection of cultural property; (d) the identity cards mentioned in the Regulations for the execution of the Convention.”
(a) Subject to paragraph (b) and to Rule 96, Belligerent Parties must refrain from any act of hostility directed against cultural property.
[Commentary]
(b) Cultural property, or its immediate surroundings, may only be attacked in cases where military necessity imperatively so requires.
[Commentary]
(c) In attacking, through air or missile attacks, military objectives in the immediate surroundings of cultural property, the Belligerent Parties must take feasible precautions to avoid damage to the cultural property (see Section G of this Manual).
[Commentary]
- Rule 95 (a) is subject to Rule 95 (b) and to Rule 96. That is to say that both Rule 95(b) and Rule 96 must be complied with when the circumstances for their application are met.
- The prohibition of directing acts of hostility against cultural property is derived from Art. 27 of the 1907 Hague Regulations,[547] Art. 53 of AP/I,[548] and Art. 4 (1),[549] as well as Art. 9[550] of the 1954 Hague Convention.
- The protection is against all acts of hostilities and not just attacks. For the definition of “attack”, see Rule 1 (e).
- The prohibition in Rule 95 (a) of “any act of hostility” does not diminish from the obligation to protect cultural property against theft, pillage, misappropriation or vandalism.
- Rule 95 (a) applies also in non-international armed conflict.
- Art. 27 of the 1907 Hague Regulations, see fn. 61.
- Art. 53 of AP/I, see fn. 539.
- Art. 4 (1) of the 1954 Hague Convention, see fn. 537.
- Art. 9 of the 1954 Hague Convention, see fn. 538.
- Art. 4 (3) of the 1954 Hague Convention: “The High Contracting Parties further undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property. They shall, refrain from requisitioning movable cultural property situated in the territory of another High Contracting Party.”
- Unlike Rule 95 (a), which deals with “acts of hostility”, Rule 95 (b) − as well as Rule 95 (c) − deals with “attacks”. For the definition of attack, see Rule 1 (e).
- Rule 95 (b) is partially derived from Art. 4 (2)[552] and Art. 11 (2)[553] of the 1954 Hague Convention. Rule 95 (b) is, however, broader than those treaty provisions in requiring the existence of “imperative military necessity” in attacking not only the cultural property itself, but also in attacking its immediate surroundings.
- See the Commentary on Rule 93 (b) for an explanation of the expression “imperative military necessity”.
- The condition of “imperative military necessity”, which is derived from the 1954 Hague Convention, is regarded by many as inconsistent with the modern requirement that an object can only be attacked if it meets the definition of military objectives (see Rule 1 (y) and Rule 22). The two concepts have been reconciled for cultural property in Art. 6 (a) (i)[554] and in Art. 13 (1) (b)[555] of the Second Protocol to the 1954 Hague Convention. Although not every State is a Contracting Party to that instrument, the majority of the Group of Experts proceeded from the assumption that no attack can be launched against cultural property unless it constitutes a military objective (see Rule 96).
- Rule 95 (b) applies also in non-international armed conflict.
- Art. 4 (2) of the 1954 Hague Convention, see fn. 542.
- Art. 11 of the 1954 Hague Convention: “(1) If one of the High Contracting Parties commits, in respect of any item of cultural property under special protection, a violation of the obligations under Article 9, the opposing Party shall, so long as this violation persists, be released from the obligation to ensure the immunity of the property concerned. Nevertheless, whenever possible, the latter Party shall first request the cessation of such violation within a reasonable time. (2) Apart from the case provided for in paragraph 1 of the present Article, immunity shall be withdrawn from cultural property under special protection only in exceptional cases of unavoidable military necessity, and only for such time as that necessity continues. Such necessity can be established only by the officer commanding a force the equivalent of a division in size or larger. Whenever circumstances permit, the opposing Party shall be notified, a reasonable time in advance, of the decision to withdraw immunity. (3) The Party withdrawing immunity shall, as soon as possible, so inform the Commissioner-General for cultural property provided for in the Regulations for the execution of the Convention, in writing, stating the reasons.”
- Art. 6 (a) (i) of the Second Protocol to the 1954 Hague Convention, see fn. 557.
- Art. 13 (1) (b) of the Second Protocol to the 1954 Hague Convention, see fn. 558.
- Rule 95 (c) is complementary to Rule 95 (b). Whereas Rule 95 (b) deals with attacks against cultural property or its immediate surroundings, Rule 95 (c) deals with attacks against military objectives in close proximity to cultural property. In attacking such military objectives, Belligerent Parties must take all feasible precautionary measures to limit collateral damage to the cultural property (see Rule 14 and Section G).
- Unlike the general protection of civilian objects from collateral damage which is “excessive” (see Rule 14), in the case of cultural property, Belligerent Parties must take feasible precautions to avoid collateral damage to them, even when it is not excessive. This obligation is limited, however, to the taking of “feasible” precautions, rather than to be applicable in an absolute manner.
- For Contracting Parties to the 1999 Second Protocol to the 1954 Hague Convention, Art. 7 of that Protocol applies.[556]
- Rule 95 (c) applies also in non-international armed conflict.
- Art. 7 of the Second Protocol to the 1954 Hague Convention (“Precautions in attack”): “Without prejudice to other precautions required by international humanitarian law in the conduct of military operations, each Party to the conflict shall: (a) do everything feasible to verify that the objectives to be attacked are not cultural property protected under Article 4 of the Convention; (b) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental damage to cultural property protected under Article 4 of the Convention; (c) refrain from deciding to launch any attack which may be expected to cause incidental damage to cultural property protected under Article 4 of the Convention which would be excessive in relation to the concrete and direct military advantage anticipated; and (d) cancel or suspend an attack if it becomes apparent: (i) that the objective is cultural property protected under Article 4 of the Convention; (ii) that the attack may be expected to cause incidental damage to cultural property protected under Article 4 of the Convention which would be excessive in relation to the concrete and direct military advantage anticipated.”
Whenever cultural property has become a military objective, the decision to attack the object must be taken by an appropriate level of command, and with due consideration of its special character as cultural property. An effective advance warning should be given whenever circumstances permit and an attack should only be conducted if the warning remains unheeded.
[Commentary]
- Rule 96 is derived from Art. 6[557] and Art. 13[558] of the Second Protocol to the 1954 Hague Convention.
- Rule 96 is based on the assumption that cultural property meets the requirement of a military objective (see paragraph 4 of the Commentary on Rule 95 (b)).
- Rule 96 has to be read against the background of the general requirement of warning in Rule 38. The phrase used in the text includes the word “should”, thus reflecting the disagreement among the Group of Experts as regards the question whether there is such an obligation in customary international law. In any event, Contracting Parties to the Second Protocol to the 1954 Hague Convention must (pursuant to its Art. 6 (d))[559] give such warning “whenever the circumstances permit”.
- Once a warning − when issued − is heeded, any attack against the cultural property will be unlawful.
- The decision to attack cultural property can only be taken by an “appropriate level of command”. In the opinion of the majority of the Group of Experts, that means a commander of an air squadron or a higher echelon, i.e. the equivalent of a battalion commander, as referenced in Art. 6 (c)[560] of the Second Protocol to the 1954 Hague Convention.
- The decision to attack cultural property must be taken with due consideration of its special character. In other words, the decision cannot be taken lightly and plans of attack ought to seek to minimize the risk to cultural property.
- Rule 96 applies also in non-international armed conflict.
- Art. 6 of the Second Protocol to the 1954 Hague Convention: “With the goal of ensuring respect for cultural property in accordance with Article 4 of the Convention: (a) a waiver on the basis of imperative military necessity pur-suant to Article 4 paragraph 2 of the Convention may only be invoked to direct an act of hostility against cultural prop-erty when and for as long as: (i) that cultural property has, by its function, been made into a military objective; and (ii) there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hos-tility against that objective; (b) a waiver on the basis of imperative military necessity pursuant to Article 4 paragraph 2 of the Convention may only be invoked to use cultural property for purposes which are likely to expose it to destruction or damage when and for as long as no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage; (c) the decision to invoke imperative military necessity shall only be taken by an officer commanding a force the equivalent of a battalion in size or larger, or a force smaller in size where circumstances do not permit otherwise; (d) in case of an attack based on a decision taken in accordance with subpara-graph (a), an effective advance warning shall be given whenever circumstances permit.”
- Art. 13 of the Second Protocol to the 1954 Hague Convention (“Loss of enhanced protection”): “(1) Cultural property under enhanced protection shall only lose such protection: (a) if such protection is suspended or cancelled in accordance with Article 14; or (b) if, and for as long as, the property has, by its use, become a military objective. (2) In the circumstances of sub-paragraph 1(b), such property may only be the object of attack if: (a) the attack is the only fea-sible means of terminating the use of the property referred to in sub-paragraph 1(b); (b) all feasible precautions are taken in the choice of means and methods of attack, with a view to terminating such use and avoiding, or in any event minimising, damage to the cultural property; (c) unless circumstances do not permit, due to requirements of immediate self-defence: (i) the attack is ordered at the highest operational level of command; (ii) effective advance warning is is-sued to the opposing forces requiring the termination of the use referred to in sub-paragraph 1(b); and (iii) reasonable time is given to the opposing forces to redress the situation.”
- Art. 6 (d) of the Second Protocol to the 1954 Hague Convention, see fn. 557.
- Art. 6 (c) of the Second Protocol to the 1954 Hague Convention, see fn. 557.
(a) Starvation of civilians as a method of warfare is prohibited.
[Commentary]
(b) It is prohibited to attack, destroy, remove, or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying the civilian population their use.
[Commentary]
(c) The prohibitions in paragraph (b) do not apply to such of the objects covered by it as are used by the enemy:
[Commentary]
- as sustenance solely for the members of its armed forces; or
[Commentary]
- if not as sustenance, then in direct support of military action, provided, however, that in no event can actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.
[Commentary]
- Rule 97 (a) is based on Art. 54 (1) of AP/I.[561] See also, for international armed conflicts, Art. 8 (2) (b) (xxv) of Rome Statute of the ICC.[562]
- The prohibition of starvation of civilians as a method of warfare means annihilating or weakening the civilian population by deliberately depriving it of its sources of food, drinking water or of other essential supplies, thereby causing it to suffer hunger or otherwise affecting its subsistence.
- The prohibition of starvation as a method of warfare does not comprise a prohibition of attacking supplies intended primarily for the sustenance of the enemy’s military forces, i.e. starvation of combatants is a permissible method of warfare.
- It follows that there is no prohibition of siege warfare, provided that the purpose is military in nature and not solely or primarily to starve the civilian population. In such circumstances, if the civilian population is suffering from starvation, the besieging Belligerent Party must provide for the free passage of humanitarian relief supply. On humanitarian aid, see Section O. As for the situation in case of an aerial blockade, see Rule 157 – 159.
- Rule 97 (a) applies in occupied as well as in non-occupied territory.
- Rule 97 (a) applies also in non-international armed conflict.
- Art. 54 (1) of AP/I: “Starvation of civilians as a method of warfare is prohibited.”
- Art. 8 (2) (b) (xxv) of the Rome Statute of the International Criminal Court: “Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully imped-ing relief supplies as provided for under the Geneva Conventions.”
- The prohibition to attack, destroy, remove, or render useless objects indispensable to the survival of the civilian population is a corollary to the prohibition of starvation of civilians as a method of warfare. It is based on Art. 54 (2) of AP/I[563] and on Art. 14 of AP/II.[564]
- This prohibition only applies if the “specific purpose” of the Belligerent Party is to deny the civilian population the use of objects indispensable to the survival of the civilian population. Rule 97 (b) does not deal with incidental distress of civilians resulting from otherwise lawful military operations. For example, it would not necessarily be unlawful to attack an airport falling under the definition of a military objective (see Rule 1 (y) and Rule 22) even if it is also used for transporting food needed to supply the civilian population. However, such an attack is unlawful if it is committed with the “specific purpose” of destroying, removing, or rendering useless objects indispensable to the survival of the civilian population, e.g., large warehouses of foodstuffs, or storages of drinking water, for the benefit of the civilian population.
- As highlighted by the term “such as”, the list of objects indispensable to the survival of the civilian population given in Rule 97 (b) is not exhaustive. Depending on weather conditions or other circumstances, objects such as shelter or clothing could also become indispensable to survival.
- The broad formulation of Rule 97 (b) is meant to include a prohibition on any means or methods of warfare that might be used to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, including pollution of water reservoirs or destruction of crops by chemical or other agents.[565]
- Rule 97 (b) applies also in non-international armed conflict.
- Art. 54 (2) of AP/I: “It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, live-stock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.”
- Art. 14 of AP/II: “Starvation of civilians as a method of combat is prohibited.”
- Para. 2101 of the ICRC Commentary on AP/I, pertaining to Art. 54 of AP/I: “It should be noted that the verbs ‘attack’, ‘destroy’, ‘remove’ and ‘render useless’ are used in order to cover all possibilities, including pollution, by chemical or other agents, of water reservoirs, or destruction of crops by defoliants …”
- Rule 97 (c) provides for two exceptions to the prohibition under Rule 97 (b). It is based on Art. 54 (3) of AP/I.[566]
- It is doubtful whether rule 97 (c) applies to non-international armed conflict, because Art. 14 of AP/II does not provide for it and no practice supporting it could be found.[567]
- Art. 54 (3) of AP/I: “The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used by an adverse Party: (a) as sustenance solely for the members of its armed forces; or
(b) if not as sustenance, then in direct support of military action, provided, however, that in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.”
- See the Commentary on Rule 54 of the ICRC Customary IHL Study, at page 192.
The first exception pertains to objects used by a Belligerent Party exclusively for the sustenance of its armed forces. It could apply, e.g., to foodstuff or livestock exclusively reserved for the armed forces. Another ex-ample would be the besieging of a military unit, when no civilians are involved.
The second exception relates to objects used in direct support of military action. For example, a food-producing area may be attacked in order to prevent the enemy from advancing, or a food-storage barn may be destroyed if it is being used by the enemy for cover or as an arms depot. However, even if used in direct support of military action, these objects may only be attacked, destroyed, removed, or rendered useless provided that the consequence will not be to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.
(a) UN personnel must be respected and protected.
[Commentary]
(b) Directing attacks against UN personnel is prohibited, as long as they are entitled to the protection given to civilians.
[Commentary]
(c) Directing attacks against material, installations, units and vehicles of the UN is prohibited, unless they constitute military objectives.
[Commentary]
- The obligation to respect and to protect UN personnel (as well as UN materiel, installations, units and vehicles) is based inter alia on the UN Safety Convention. Art. 7 (1) of the latter Convention stipulates that UN personnel, their equipment and premises “shall not be made the object of attack” and that Contracting Parties have a duty to ensure the safety and security of UN personnel.[568]
- In attacking UN personnel (as well as materiel, installations, units and vehicles) which have become a lawful target, a Belligerent Party is bound to respect Sections D, E and G.
- UN personnel (as well as materiel, installations, units and vehicles) may display the emblem of the UN in accordance with a Code issued by the UN Secretary-General on December 17, 1949 (amended on November 11, 1952).[569] It is prohibited to use the distinctive emblem of the UN except as authorized by that organization (see Rule 112 (e)). When UN personnel and materiel lose the protection given to civilian persons and objects under the law of international armed conflict, the UN emblem cannot be construed as a protective emblem.
- According to the UN Safety Convention, the expression “United Nations personnel” covers (Art. 1 (a)) “(i) Persons engaged or deployed by the Secretary-General of the United Nations as members of the military, police or civilian components of a United Nations operation; (ii) Other officials and experts on mission for the UN or its specialized agencies or the International Atomic Energy Agency who are present in an official capacity in the area where a United Nations operation is being conducted.”
- In the UN Safety Convention (Art. 1 (c)), the expression “United Nations operation” is defined as “an operation established by the competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control: (i) Where the operation is for the purpose of maintaining or restoring international peace and security; or (ii) Where the Security Council or the General Assembly has declared, for the purposes of this Convention, that there exists an exceptional risk to the safety of the personnel participating in the operation.”
- The Optional Protocol to the UN Safety Convention expands (Art. II) the expression “United Nations operation” to include, in addition to those operations already covered under Art. 1 (c) of the UN Safety Convention: “all other United Nations operations established by a competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control for the purpose of: (a) delivering humanitarian, political or development assistance in peacebuilding; (b) delivering emergency humanitarian assistance.”
- The obligation to respect UN personnel enshrined in Rule 98 (a) means (i) that it is prohibited to attack or to harm them in any way; and (ii) that there ought be no adverse interference with the accomplishment of their mandate. The obligation to protect implies the duty to ensure that these persons are to be respected.
- Rule 98 (b) specifies that UN personnel only enjoy such protection “as long as they are entitled to the protection given to civilians”.[570] As stated in Art. 1.2 of the Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law: “The promulgation of this bulletin does not affect the protected status of members of peacekeeping operations under the 1994 Convention on the Safety of United Nations and Associated Personnel or their status as non-combatants, as long as they are entitled to the protection given to civilians under the international law of armed conflict.”
- Rule 98 (a) applies also in non-international armed conflict.
- Art. 7 (1) of the UN Safety Convention (“Duty to ensure the safety and security of United Nations and associ-ated personnel”): “(1) United Nations and associated personnel, their equipment and premises shall not be made the object of attack or of any action that prevents them from discharging their mandate.”
- The United Nations Flag Code and Regulations, ST/SGB/132.
- Art. 8 (2) (b) (iii) of the Rome Statute of the ICC declares the following to be a war crime in an international armed conflict: “Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict.” An identical provision (Art. 8 (2) (e) (iii)) exists also for armed conflicts not of an international character.
- Attacks against UN personnel are prohibited only (i) as long as the UN is not a Party to the armed conflict; or (ii) its forces do not take a direct part in hostilities.
- When the UN is a Party to the armed conflict, its military personnel may be regarded as combatants and they may be attacked accordingly.
- Non-military UN personnel will be regarded as civilians in all circumstances, unless and for such time as they directly participate in hostilities (see Section F).
- When the UN is not a Party to the armed conflict, resort to force in “self-defence” or in implementation of a robust mandate by UN personnel will not necessarily vest them with a combatant role. Any act of self-defence not overstepping the threshold of armed conflict or not amounting to an act of direct participation in hostilities will not result in the loss of the protection afforded to civilians under the law of international armed conflict.
- The fact that UN military personnel are engaged in an armed conflict as a Party thereto does not imply that the entirety of the personnel engaged in the UN mission lose their protection against direct attack. While UN armed forces and UN personnel taking a direct part in hostilities lose their protection and are lawful targets, the remainder of the UN personnel − e.g., those participating in relief actions − remain protected.
- Rule 98 (b) applies also in non-international armed conflict.
- UN materiel, installations, units and vehicles are protected only as long as they are entitled to the protec-tion given to civilian objects under the law of international armed conflict (see Rule 1 (j)). They constitute law-ful targets if they are military objectives as defined in Rule 1 (y) and in Section E of this Manual.
- The prohibition of directing attacks against UN vehicles extends to UN aircraft and UAVs or UCAVs, unless they constitute military objectives. UN forces may use UAVs for a variety of purposes, ranging from providing information useful for their deployment and subsequent movements to acquiring information valuable in force protection. They may also be used to accomplish the UN Security Council mandate. For instance, UAVs may be useful in monitoring the need for humanitarian relief, determining how best to deliver such relief, and monitoring the location and activities of military forces, as during an agreed cease-fire. UCAVs may be used to provide protection for UN forces − or civilians under their protection − pursuant to the UN Security Council mandate. In these and other cases of employment by UN forces, the UCAV/UCAVs retain their immunity from attack as long as (i) the UN is not a Party to the armed conflict; or (ii) its forces do not take a direct part in hostilities.
- Rule 98 (c) also applies in non-international armed conflict.
Belligerent Parties may agree at any time to protect persons or objects not otherwise covered by this Manual.
[Commentary]
- The main thrust of Rule 99 is extending specific protection to persons or objects not otherwise enjoying such protection under this Manual.
- As a general rule, special agreements may only be concluded with a view to enhancing, and not adversely affecting, protection. See also common Art. 6 to the Geneva Conventions.[571]
- For example, Belligerent Parties not bound by AP/I may conclude a special agreement conferring specific protection on works and installations containing dangerous forces. Along the same lines, a special agreement may be concluded to protect oil production installations, oil rigs, petroleum storage facilities, oil refineries or chemical production facilities.
- Special agreements under Rule 99 may be concluded without resort to the usual formalities of signature and ratification. Under certain circumstances, they may even be oral. In every case, the exact terms of the agreement must be clear.
- An impartial humanitarian body, such as the ICRC, can facilitate the conclusion of such special agreements.
- Rule 99 applies also in non-international armed conflict. It is noteworthy that the penultimate para-graph of common Art. 3 to the Geneva Conventions states that “[t]he Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the pre-sent Convention”.[572]
- Common Art. 6 to the Geneva Conventions: “the High Contracting Parties may conclude other special agreements for all matters concerning which they may deem it suitable to make separate provision. No special agreement shall adversely affect the situation of the wounded and sick, of members of the medical personnel or of chaplains, as defined by the present Convention, nor restrict the rights which it confers upon them.”
- Common Art. 3 of the 1949 Geneva Conventions, see fn. 118.
