Populated areas and other locations containing

CONTAININGCONCENTRATIONSOFCIVILIANS

“(Densely) populated area” and “concentration of civilians” are well-established legal notions in relation to the protection of civilians and the regulation of the conduct of hostilities, although there is no single agreed definition and international texts vary slightly in the formulations they deploy.³¹⁰ Of 26 texts in this issue area that regulate the use of weapons and reflect a standard on the protection of civilians only four do not in

309 Transport and communication infrastructure, including bridges, railway lines and telephone infrastructure or broadcasting stations are at particular risk of attack because they “are generally acknowledged to be of military importance”.

ICRC, Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, September 1956, art. 7.

310 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II to the CCW), 10 October 1980, art. 4(2); Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Amended Protocol II to the CCW), 3 May 1996, art. 7(3); Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III to the CCW), 10 October 1980, arts. 1(2), 2(2); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, art. 51(5)(a). Related, though perhaps narrower notions appear in national military and policy documents. Frequently used in this context is the term

“built-up area”. US Marine Corps, Military Operations on Urbanized Terrain (MOUT), document MCWP 3-35.3, 1998, sec. 1-4, presents four categories of built-up areas: villages, strip areas (i.e., industrial zones), towns or small cities, large cities with associated urban sprawl; Swiss Federal Council, Message relatif à l’approbation de la Convention sur les armes à sous-munitions ainsi qu’à la modification de la loi sur le matériel de guerre, 11.036, 6 June 2011, p. 5524, refers to “zone construite”, that is, “built-up area”. See also Israeli Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009:

Factual and Legal Aspects, July 2009, para. 407. For the purposes of this report, a text is considered to refer to populated areas if it refers to “populated area”,

“concentration of civilians” or similar; to city, town, village, dwelling or similar places where civilians live; to a crowd, assembly, gathering or similar location/

zone where civilians are present in large numbers; to a market, commercial premise, farm, or similar place where civilians work; or to transport, health, government facilities or similar public infrastructure or place of public use.

one way or another refer to populated areas.³¹¹ Such references include provisions on particular locations or objects likely to contain concentrations of civilians or which are important for civilian survival and well-being and which, due to their primarily civilian character, benefit from special protection under IHL.

The health care infrastructure, for example, is specially protected against attack. Civilians and other victims of war tend to be present in high numbers in hospitals. In addition, attacks on health care facilities and workers can have disastrous knock-on effects on the provision of medical assistance.³¹² Geneva Convention IV provides for the establishment of “hospital and safety zones and localities” to protect from the effects of war, “wounded, sick and aged persons, children under fifteen, expectant mothers and mothers of children under seven”. It also contains provisions protecting from attack civilian hospitals organized to give care to the wounded and sick; the infirm and maternity cases may also not be attacked.³¹³

Similarly, special standards apply to “places of worship which constitute the cultural or spiritual heritage of peoples”.³¹⁴ Additional Protocol I prohibits attacks on “any inhabited place” near or in a zone where armed forces are in contact, which is open for occupation, and which has been declared a

“non-defended locality”, and on “demilitarized zones”. It is a war crime within the jurisdiction of the ICC and the ICTY to attack “towns, villages,

311 Three of these are instruments that ban explosive weapon types and hence do not regulate the modalities of their use. The other one is Security Council, [On targeted sanctions against individuals meeting the criteria set out in resolution 1572 (2004) on arms embargo against Côte d’Ivoire], UN document S/RES/1975(2011), 30 March 2011. In this case, the lack of a reference to populated areas is somewhat surprising given that high-level United Nations representatives have highlighted the dreadful humanitarian impact of explosive weapons use in populated areas in this context. See, United Nations Office for the Coordination of Humanitarian Affairs, United Nations Humanitarian Chief Alarmed at Côte d’Ivoire Violence, press release, 2011.

312 It has been noted earlier that in today’s conflicts explosive violence is a key driver of civilian harm through its negative impacts on health care. ICRC, Health Care in Danger: a Sixteen-Country Study, 2011.

313 Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949, arts. 14, 18, and Annex I. Draft Agreement Relating to Hospital and Safety Zones and Localities.

314 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, art. 53.

dwellings or buildings” which are undefended and which are not military objectives.³¹⁵

So-called “safety zones”, “safe areas” or “no-fly zones”—not necessarily based on provisions of IHL—also aim at protecting civilians in particular places. United Nations Security Council resolution 836 (1993), for example, authorized the United Nations Protection Force to use all necessary measures in reponse to bombardments against the safe areas created around the towns of Sarajevo, Bihac´, Srebrenica, Goražde, Tuzla and Žepa, and their surroundings. A more recent example is the “ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians” imposed by the United Nations Security Council with reference to the call by the Council of the League of Arab States “for the imposition of a no-fly zone on Libyan military aviation, and to establish safe areas in places exposed to shelling as a precautionary measure”.³¹⁶ Not all places likely to contain concentrations of civilians benefit from explicit location-specific protection, though. Whereas IHL establishes a strong presumption against attacks on places of worship that constitute the cultural or spiritual heritage of peoples, for example, no IHL rule specifically protects market places. With respect of the risk of civilian harm from explosive weapons, this differential treatment is difficult to justify.

Studies show that the victims of incidents involving explosive weapons in both locations are predominantly civilians.³¹⁷

315 Ibid., arts. 59, 60; Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, ICRC, 2005, rules 35–37; Rome Statute of the International Criminal Court, art. 8(2)(b)(v);

Security Council, [On establishment of the international tribunal for prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991], UN document S/RES/827, 25 May 1993, art. 3(c).

316 Security Council, [Extending the mandate of the UN Protection Force and authorizing the Force to use all necessary measures in reply to bombardments against the safe areas], UN document S/RES/836, 4 June 1993; Security Council, [On establishment of a ban on flights in the Libyan Arab Jamahiriya airspace], UN document S/RES/1973, 17 March 2011. Consider also Security Council, [On expansion and extension of the mandate of the UN Observer Mission in Georgia and its cooperation with the CIS Peace-Keeping Force], UN document S/RES/937, 21 July 1994.

317 In 2011, 90% of casualties in or near places of worship, and 96% of casualties in or near markets recorded by AOAV were reported to be civilians. Henry

Markets are, of course, civilian objects and as such protected from direct attack. But civilian objects may loose protection if they become military objectives, that is, for the duration that they make an effective contribution to military action by their location, purpose, or use.³¹⁸ IHL creates a presumption in relation to civilian objects “normally dedicated to civilian purposes” that they are not being used to make an effective contribution to military action. As examples of such places, Additional Protocol I lists “a place of worship, a house, or other dwelling or a school”.³¹⁹ The ICRC’s customary law study notes that “State practice considers civilian areas, towns, cities, villages, residential areas, dwellings, buildings and houses and schools, civilian means of transportation, hospitals, medical establishments and medical units, historic monuments, places of worship and cultural property, and the natural environment as prima facie civilian objects”. It is somewhat unclear what the “prima facie” civilian character and the presumption that certain locations are not used by a party to an armed conflict entails in terms of the threshold for loss of protection from attack.³²⁰ ICTY jurisprudence shows, though, that even large populated areas are not deprived of their civilian character by the presence of military objectives in such places. In Dragomir Miloševic´ (2007), a case involving attacks with modified air bombs, artillery and mortar fire on the city of Sarajevo, the ICTY Trial Chamber described the city as “a densely-populated urban area” constituted by residential and commercial areas. It noted that “the populated urban areas within the confrontation lines were civilian in status” and that this status was not altered by the presence of military objectives.³²¹

Dodd and Rob Perkins, Monitoring Explosive Violence: The EVMP dataset 2011, AOAV, March 2012, p. 15.

318 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, art. 52(2).

319 Ibid., art. 52(3).

320 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, ICRC, 2005, rules 9, 10 (footnotes omitted).

321 ICTY, The Prosecutor v. Dragomir Miloševic´, Trial Chamber III, Judgement, case IT-98-29/1-T, 12 December 2007, paras. 10 and 896; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, art. 50(3):

“The presence within the civilian population of individuals who do not come

ICTY case-law illustrates that civilians are at grave risk of direct death and injury, and of indirect harm due to the disruption of services essential to civilian survival and well-being from attacks with explosive weapons on legitimate military objectives within that area. In the Perišic´ and Galic´ cases, the ICTY assessed the legality of shelling attacks on an important open-air market located in Sarajevo. The Trial Chamber in Galic´ (2003) pointed out that “the market drew large numbers of people”, and in Perišic´, it stressed

“the location and the function played by the Markale market as a civilian public place”.³²² In the Strugar case (2005), the ICTY examined the shelling of “residential blocks, public places and shops” in Dubrovnik, and pointed out that “damage to these would have entailed grave consequences for the residents or the owners”.³²³ In Blaskic´ (2000), the ICTY stressed the high number of people frequenting the affected area. Discussing the shelling of Zenica it found that “the shells hit very busy parts of town, such as the shopping district and the municipal market moreover, at a peak time. In fact, it seems that at this exact time of day, commercial traffic was considerable and there were between two to three thousand people in the geographical area bombarded”.³²⁴ In Galic´, the Trial Chamber was struck by the fact that civilians were hit while shopping, while gathered in a square or during sportive festivities organized on a public holiday. The Tribunal specifically noted that children were harmed in schools, or while playing outside, riding a bicycle, near their home, or in the street.³²⁵ In sum, although attacks with explosive weapons have to comply with the prohibitions on indiscriminate and disproportionate attacks, precautionary obligations, as well as the prohibition on extensive destruction not justified by military necessity, these rules are not weapon-specific, and, hence, do not provide detailed guidance about how to assess blast and fragmentation effects and the risk of civilian harm from these effects in or near places

within the definition of civilians does not deprive the population of its civilian character”.

322 ICTY, The Prosecutor v. Stanislav Galic´, Trial Chamber, Judgement, case IT-98-29-T, 5 December 2003, para. 495; ICTY, The Prosecutor v. Momcˇilo Perišic´, Trial Chamber I, Judgement, IT-04-81-T, 6 September 2011, para. 357.

323 ICTY, The Prosecutor v. Pavle Strugar, Tial Chamber II, Judgement, case IT-01-42-T, 31 January 2005, para. 320.

324 ICTY, The Prosecutor v. Tihomir Blaškic´, Judgement, Trial Chamber, case IT-95-14-T, 3 March 2000, para. 662.

325 ICTY, The Prosecutor v. Stanislav Galic´, Trial Chamber, Judgement, case IT-98-29-T, 5 December 2003, para. 584.

containing concentrations of civilians. This constitutes an important challenge for the effective protection of civilians against dangers arising from military operations.