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5.15.3 Declaration of a City as “Undefended”. An undefended city may be establishedthrough negotiations with opposing forces, 369 or unilaterally by the party to the conflict incontrol of it. If the latter, the intent and actions of that party should be communicated toopposing military forces through a declaration. A town, village, or city may be declared“undefended” when it is near, or in, a zone where opposing armed forces are in contact with oneanother and it is open for immediate physical occupation by an adverse party withoutresistance. 3705.15.3.1 Open for Immediate Physical Occupation. The area in question must beopen for immediate physical occupation by opposing military ground forces. 371 Thus, a city inrear areas behind enemy lines cannot be “undefended.” For example, a party to a conflict cannotdeclare a city or other population center to be undefended if it is several hundred miles behindthe area of ground conflict where it would not be feasible for opposing ground forces to occupyit. By way of comparison, it would not be effective for a person to seek to surrender to anopposing force’s aircraft that could not physically take custody of that person. 3725.15.3.2 Necessity for a Declaration of Undefended Status. Although there is noexplicit treaty requirement that a city be declared undefended before achieving that status, thepractice has been to make such declarations to the opposing party. Without them, a belligerentwould have no way of knowing whether a city was truly open for occupation without resistance.For example, a city may not satisfy the conditions described below for undefended status, or itmay contain defenses that are concealed or that are operated from other areas. 3735.15.3.3 Refusal to Recognize a Declaration. Belligerents may refuse torecognize a declaration that a city is undefended if they assess that it does not satisfy all of thenecessary conditions, although they should notify the opposing belligerent of that decision. 374369 Refer to § 5.15.5 (Agreements to Establish Undefended Cities).370 1956 FM 27-10 (Change No. 1 1976) 39b (“An undefended place, within the meaning of Article 25, HR, is anyinhabited place near or in a zone where opposing armed forces are in contact which is open for occupation by anadverse party without resistance.”). Consider AP art. 59(2) (“The appropriate authorities of a Party to the conflictmay declare as a non-defended locality any inhabited place near or in a zone where armed forces are in contactwhich is open for occupation by an adverse Party.”).371 BOTHE, PARTSCH, & SOLF, NEW RULES 382 (AP I art. 59, 2.5.1) (“The concept intended is that it is sufficientlyclose to the adverse Party’s forces that tactical movement to occupy it is a feasible course of action by the advancingforce.”).372 Refer to § 5.10.3.3 (Under Circumstances in Which It Is Feasible to Accept).373 R.Y. Jennings, Open Towns, 22 BYIL 258, 261 (1945) (“But it is ludicrous to suppose that a town shielded by anarmy holding a line in front of it is undefended. Moreover, even the defences peculiarly appropriate to aerialwarfare are no longer purely or even mainly local defences. Defending fighter planes may be based miles from thetown. A screen of anti-aircraft guns sited on the route to the town, even though many miles away from it, may be amore effective defence than anti-aircraft guns sited in or around the town itself.”).374 Consider AP I art. 59(4) (“The Party to the conflict to which the declaration is addressed shall ackowledge [sic]its receipt and shall treat the locality as a non-defended locality unless the conditions laid down in paragraph 2 arenot in fact fullfilled, in which event it shall immediately so inform the Party making the declaration.”).255