(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.”
