Rule 43
Belligerent Parties subject to air or missile attacks must, to the maximum extent feasible, endeavour to remove the civilian population, individual civilians and other protected persons and objects under their control from the vicinity of military objectives.
[Commentary]
- This Rule is based on Art. 58 (a) of AP/I[319] and on Para. 8.3.2. of NWP.[320]
- A typical measure would be to evacuate areas close to, e.g., the contact zone, military airports and munitions factories. In some situations one would move particularly vulnerable parts of the civilian population (such as children and expectant mothers) from affected areas. The first paragraph of Art. 14 of GC/IV[321] suggests that hospital and safety zones and localities can be established for such purposes. Art. 15 of GC/IV has corresponding provisions for neutralized zones in the regions where fighting is taking place.[322]
- Rule 43 is without prejudice to Art. 49 of GC/IV,[323] which limits an Occupying Power’s right to undertake transfers of protected persons. Under Art. 49 of GC/IV, the Occupying Powers may totally or partially evacuate a given area if the security of the population or imperative military reasons so demand. Persons thus evacuated must be transferred back to their homes as soon as hostilities in the area in question have ceased. Permanent deportation from occupied territory is prohibited.
- A Belligerent Party must neither encourage nor tolerate “voluntary human shields” who, therefore, ought to be removed from military objectives (see Rule 45).
- The expression “other protected persons and objects” means POWs, mobile cultural property, etc.
- Art. 58 (a) of AP/I: “The Parties to the conflict shall, to the maximum extent feasible: (a) without prejudice to Art. 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives.”
- First sentence of Para. 8.3.2 of NWP: “A party to an armed conflict has an affirmative duty to remove civilians under its control (as well as the wounded, sick, shipwrecked, and prisoners of war) from the vicinity of objects of likely enemy attack.”
- First paragraph of Art. 14 of GC/IV: “In time of peace, the High Contracting Parties and, after the outbreak of hostilities, the Parties thereto, may establish in their own territory and, if the need arises, in occupied areas, hospital and safety zones and localities so organized as to protect from the effects of war, wounded, sick and aged persons, children under fifteen, expectant mothers and mothers of children under seven.”
- Art. 15 of GC/IV: “Any Party to the conflict may, either direct or through a neutral State or some humanitarian organization, propose to the adverse Party to establish, in the regions where fighting is taking place, neutralized zones intended to shelter from the effects of war the following persons, without distinction: (a) wounded and sick combatants or non-combatants; (b) civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character. When the Parties concerned have agreed upon the geographical position, administration, food supply and supervision of the proposed neutralized zone, a written agreement shall be concluded and signed by the representatives of the Parties to the conflict. The agreement shall fix the beginning and the duration of the neutralization of the zone.”
- Art. 49 of GC/IV: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated. The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place. The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand. The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
