International humanitarian law (IHL) foresees a number of protected zones, such

as neutralized zones for non-combatants and wounded combatants, “non-defended

localities,” and demilitarized zones within conflict situations, located in or outside
combat areas. The neutralized zones in Bangladesh and Croatia noted above are
examples of these types of zones. The common objective of these various zones is to
enhance the protection of the entire population (except for able-bodies fighters) by
sheltering them from the dangers arising out of armed conflict or by placing certain
areas beyond the reach of hostilities. These zones are established with agreement or
recognition by all parties to the conflict.

Civilians, wounded fighters and civilian objects are clearly protected under IHL,
but an agreement by all relevant parties that clearly makes certain places “off limits”
can enhance the protection of protected persons and objects.

Importantly, these zones are protected by IHL because they are demilitarized. By

removing any military objectives/threats from these protected zones and by requiring
the parties to recognize them through agreement, such zones can undoubtedly reinforce
the protection already afforded by IHL to civilians and other persons placed hors de
combat (eg sick and wounded).

If these pre-conditions are not met, the zone created does not enjoy the status of a
protected zone under IHL. Civilians or wounded or sick fighters therein would still
enjoy all the protections under IHL. As will be described below, if they are defended
by military means, the presence of combatants amidst or around the protected
populations entails a number of risks.

It cannot be stressed enough that such protected zones under IHL, or indeed any
other “safe zones,” do not in any way relieve fighters from their obligations to respect
and protect the entire civilian population and wounded and sick fighters at all times,
inside or outside such zones.

A foreign military intervention to establish a “safe zone” would be regulated by

international legal governing the use of force. Others have recently touched on legal
issues relevant to a military intervention meant to establish a safe zone.

Policymakers should be clear about what the creation of a “safe zone” entails
practically.

The very recent discussion of so-called safe zones in Syria by western states does
not envision an agreement with all the parties. In practical terms, therefore, if civilians
or the wounded and sick are to be gathered in specific areas, an important question
arises as to how they will be protected against attack. The dilemma here is that, if left
undefended or insufficiently defended, a so-called safe zone could become a deadly
trap, putting people at severe risk. This was the lesson of the massacre at Srebrenica.

If defended by military means, however, the particular sites might also attract
attacks or lead to an escalation of hostilities. Indeed, military forces that are enforcing
a safe zone would likely become a new actor in the armed conflict and thus targetable
under IHL. Further, armed actors could try to establish a safe haven inside the zone,
using it to launch offensive attacks on parties outside the zone. In both instances, the
“civilian character” of the zone would be undermined, and the zone could risk
becoming a magnet for attack.

Civilians should still have the possibility to flee from hostilities.

If policymakers decide to create a safe zone — whether through agreements or

military force — the objective should be to protect civilians. A safe zone should not be
created to prevent civilians from fleeing hostilities or persecution. In a deadly war like
the one in Syria, where there is hardly a safe place and where the frontlines shift all the
time, people should be able to escape from the fighting. Safe zones should also not be
misused as a justification by neighboring or other states to tighten borders, and reject
civilians seeking refuge outside their country. Civilians must still have options to flee
their country, and seek asylum.

A safe zone is no substitute for compliance with international humanitarian law.

History has shown that safe zones and no-fly zones are fraught with risks. At best,
these types of interventions may bring short term protection and relief to civilians at
grave risk — which is obviously laudable. At worst, declaring an area safe without
clear guarantees from all parties to a conflict, or without the requisite military force,
can lead to devastating humanitarian consequences.

What’s more, a party that is determined to target civilians or block relief may soon
find other ways to achieve their goals. In practice, safe zones are often proposed when
the parties to a respective armed conflict fail to respect the basic tenets of IHL. In such
instances, influential states should invest their political capital in a strategy to ensure
better respect for the rules of IHL. Without a change in the calculus of the parties to
the conflict, civilians may still be at grave risk, even after the creation of safe zones
meant to protect them.

Safe zones must guarantee the following minimum rights:

o the right to life (through the principle of distinction);

o the right to be free from torture and cruel, inhuman or degrading treatment or
punishment;
o freedom from arbitrary recruitment (to participate in the conflict);
o personal security, particularly in relation to sexual- and gender-based violence;
o the right to the highest attainable standard of living and health;
o access to humanitarian relief and assistance, and access by humanitarian
organisations; and
o freedom of movement, including the right to leave the country and seek asylum
(withfull respect for the principle of non-refoulement).

Safe corridors may provide useful avenues to protection and assistance. They will
enable some people to leave the conflict zone as safely as possible. They may also
facilitate access to essential services, such as markets, health care, employment and
education. However, to be effective all parties to the conflict must uphold the safe
corridors.

The law of armed conflict

The law of armed conflict has had the greatest influence on safe zones and safe
corridors.16 Prior to World War II, there were examples of safe havens created for
civilians, albeit without a legal framework to regulate them.17 Between 1949 and
1977, the limited law that did exist related only to conflicts between two or more
countries (international armed conflicts), although parties to so- called civil wars
(non-international armed conflicts) could negotiate similar arrangements.

Additional Protocol 1 (AP1) of 1977 to the Geneva Conventions advanced the

law by providing for the general protection of civilians, requiring that in international
armed conflicts, all civilians ‘enjoy general protection against dangers arising from
military operations’ and shall not be the object of attack. This is clearly relevant to
safe zones. While the protection of civilians in non-international armed conflicts
under Additional Protocol 2 (AP2) – which applies to non-international armed
conflicts – is not as strong, the International Committee of the Red Cross (ICRC) has
asserted that the principal elements of AP1 and Geneva Convention IV are recognised
as customary international law and are therefore applicable, for the most part, in non-
international armed conflicts as well.

Indeed, for the purposes of the analysis below, the ICRC’s Customary
International Humanitarian Law Rules best set out how safe zones and safe corridors
might be established more generally in the context of refugee protection. As with all
other aspects of the law of armed conflict in this context, it is as much about the set of
conditions necessary for safe zones and corridors to be respected by the parties, as it is
about the specific rule. The law of armed conflict can provide guidance for safe zones
and corridors in the context of refugee protection, but it is not, on its own, the only
applicable law. Therefore, for the purposes of refugee protection under international
law, safe zones and safe corridors must have an autonomous meaning that goes
beyond what the law of armed conflict provides.

International human rights law

International human rights law also establishes parameters for safe zones and safe
corridors – a zone can only be safe if certain human rights are ensured to those within
it, including: the right to life; the right to an adequate standard of living; the right to
be free from torture and cruel, inhuman or degrading treatment; and the right to the
highest attainable standards of health. Nevertheless, with respect to certain rights
contained in the International Covenant on Civil and Political Rights (ICCPR), while
the threshold is high, States can, if publicly declared, derogate ‘in time of public
emergency which threatens the life of the nation ... provided that such measures are
not inconsistent with their other obligations under international law and do not
involve discrimination solely on the ground of race, colour, sex, language, religion or
social origin’.20 By contrast, the International Covenant on Economic, Social and
Cultural Rights and the almost universally ratified Convention on the Rights of the
Child contain no derogation clause for national emergencies.21

One particular human right that is pertinent in cases of displacement, safe zones
and safe corridors is the right to freedom of movement.22 This is a right from which
States can derogate in time of emergency. However, if other States – such as those not
involved in the conflict but possibly receiving refugees from it – were to impose a
safe zone in the conflict zone, those States could never rely on Article 4 to limit
freedom of movement – there is no threat to the life of the nation in those States.

With respect to safe corridors, the right to freedom of movement is one that can
bolster the argument for ensuring access to goods and services for those trapped, and
even for the right to seek protection abroad.