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Commentary - Combatants and prisoners of war
    [p.519] Article 44 -- Combatants and prisoners of war

    [p.520] General remarks

    1684 Although not explicitly stated, this article is mainly aimed at dealing with combatants using methods of guerrilla warfare. On the modern battlefield, [p.521] guerrilla warfare is a phenomenon which exists for various reasons, all equally valid, cannot ignore it. Guerrilla fighters will not simply disappear by putting them outside the law applicable in armed conflict, on the basis that they are incapable of complying with the traditional rules of such law. Neither would this encourage them to at least comply with those rules which they are in a position to comply with, as this would not benefit them in any way. The Diplomatic Conference has therefore made an effort to identify this phenomenon and cannot be criticised for so doing. The rules for armed conflict are not static; on the contrary, they must be adapted to a constantly changing world by means of appropriate modifications. This is the specific aim of Article 44 , one of the most bitterly disputed articles at the Conference. Almost fifty speakers put their points of view to the Third Committee during the first debate, which took place at the second session. (1) Thirteen amendments (2) were aimed explicitly at modifying the text proposed by the ICRC in Article 42 of its Draft, (3) which dealt with the substance of the present Article 44 as well as with that of Article 43 (' Armed forces ') of the Protocol. However, numerous other amendments tried indirectly to achieve the same by virtue of the fact that there is a certain correlation between the various proposals put forward, on the one hand in the ICRC Draft, and on the other by the delegates themselves. (4) The essence of the debate took place at the third session, within the Working Group of Committee III. After a month of sustained effort, the text of the present Article 44 was finally established. However, it was not until the fourth session that the article was adopted by Committee III with 66 votes in favour, 2 against, and 18 abstentions, (5) before being passed in the final plenary meeting by roll-call, with 73 votes in favour, 1 against, and 21 abstentions. (6) Not surprisingly these votes were followed by numerous explanations of vote. (7) In addition to giving the reasons which had led the various delegations to approve the proposed text -- or, on the other hand, to abstain or even reject it -- these explanations of vote contain in many cases statements on interpretation. Furthermore, many delegations felt obliged to [p.522] state, either during the plenary meetings or in Committee, that they would not accept reservations to Article 44 by other contracting Parties. (8)

    1685 The text of Article 44 is a compromise, probably the best compromise that could have been achieved at the time. It is aimed at increasing the legal protection of guerrilla fighters as far as possible, and thereby encouraging them to comply with the applicable rules of armed conflict, without at the same time reducing the protection of the civilian population in an unacceptable manner. Whatever the text, one might still consider that, when all is said and done, the protection of the civilian population is not assured unless both Parties to the conflict are genuinely concerned about this.

    1686 Article 44 , which is divided into eight paragraphs, deals successively with prisoner-of-war status, compliance with the rules of international law applicable in armed conflict, the obligation for a guerrilla combatant to distinguish himself from the civilian population, the sanction on non-compliance with this obligation, and the scope of the obligation. The provisions of Article 4 of the Third Convention are fully preserved, the wearing of a uniform for members of a regular army is confirmed, and all combatants are guaranteed the benefits of the first and Second Conventions.

    Paragraph 1 -- prisoner-of-war status

    1687 At first sight, this paragraph is perfectly clear. Those combatants complying with the general conditions laid down in Article 43 (' Armed forces '), which gives an overall definition of armed forces, have the right, when captured, to prisoner-of-war status. In reality matters are perhaps not as straightforward as this. It has been said that the problem is no longer one of knowing how to obtain the status of combatant (and prisoner-of-war status). The real problem is probably knowing what to do to avoid forfeiting this status. This risk particularly concerns guerrillas and the requirement of a régime of internal discipline for armed forces to ensure that they comply with the rules of international law applicable in armed conflict (Article 43 -- ' Armed forces, ' paragraph 1, second sentence). This expression refers to the rules set forth in international agreements to which the Parties to the conflict are Parties, and the generally recognized principles and rules of international law applicable to armed conflict (Article 2 -- ' Definitions, ' subparagraph (b)). This means that these rules must be complied with by the armed forces as such, at the risk of disqualification. As Article 44 is mainly concerned with guerrilla combatants, it is therefore appropriate to devote some attention to this issue in the context of guerrilla warfare. The problem of combatants [p.523] distinguishing themselves visually is dealt with in paragraphs 3 and 4 of Article 44 , while that of individual violations of the rules of armed conflict is dealt with in paragraph 2, so that the subject should be approached with these considerations in mind. However, the problem as a whole must be considered, for if the status of the group is contested, it will be the individuals who will be deprived of combatant or prisoner-of-war status. (9)

    1688 It cannot be denied that guerrilla movements do not have the same characteristics as so-called regular forces, but this is not a new problem. It already existed in 1949 with regard to resistance movements, whose members are equally required to comply with the "laws and customs of war". When Article 4A(2)(d) of the Third Convention states that members of militias, volunteer corps and resistance movements should conduct their operations in accordance with the laws and customs of war, this means that they must have been directed against resort to perfidy, ill-treatment of prisoners, wounded or dead, improper use of the flag of truce, and unnecessary violence or destruction. (10) Thus there is no question -- if this interpretation is accepted -- of requiring compliance with all the rules of international humanitarian law applicable in cases of armed conflict, many of which require the machinery of the State for their full application. As has been stated, it would be misguided to expect equality where inequality exists, (11) and it is neither unreasonable nor unjust to postulate compliance with the rules in a less extensive and detailed manner when they are imposed upon guerrilla combatants than when they are imposed upon the so-called regular army. (12) The principle of good faith should be uppermost as much in the interpretation of treaties as in their implementation. (13) Thus the requirement of assuring the respect of the rules of international humanitarian law is not asking the impossible for those guerrilla groups who wish to benefit from Article 43 . (14) The minimum threshold of rules whose application can always be required, whatever the situation, cannot be lower than that defined in Article 85 ' (Repression of breaches of this Protocol) ' and in the corresponding articles of the [p.524] Conventions dealing with grave breaches (First Convention, Article 50 ; Second Convention, Article 51 ; Third Convention, Article 130 ; fourth Convention, Article 147 ). To accept that it could fall below this minimum could only compromise the object and purpose of the Conventions and the Protocol. As one delegate stated "the long list contained in Article 74 [85 ][...] constitutes a minipenal code of humanitarian law". The International Law Commission observed that it is no accident that the obligations "whose breach entails the personal punishment of the perpetrators correspond largely to the obligation imposed by certain rules of ' jus cogens '". (15) However, a Party to the conflict cannot invoke impossibility of performance without a valid reason, nor use as a pretext the constraints of the other Party in order to justify possible derogations of its own. (16) No doubt much will be written on this subject in the future. It is perhaps appropriate here to refer once more to the views expressed by the Norwegian representative.

    "If international humanitarian law applicable in armed conflict was not to become a dead letter, it was essential first, that the rules of that law should place the Parties on an equal footing -- in other words, that the rules should be equally binding on all the Parties to the conflict; secondly, that those rules should constitute a well-balanced compromise between humanitarian considerations and military necessity; lastly, that they should be drafted in such a way as to ensure that all the Parties to the conflict would have an equal interest in their application." (17)

    Finally, the Rapporteur in his report points out:

    "Several representatives suggested, for example, that it should be stated clearly that, if a group of combatants announced that it would not respect the laws and in fact consistently violated them, all members of the group should forfeit their right to prisoner-of-war status. Others argued, however, that such behaviour by a group was unlikely given the requirements of Article [p.525] 41 [43 ], that we did no need to provide specifically for it, and that in any event, there were other and better methods for punishing and deterring such behaviour and that prisoners of war could, of course, be punished for criminal offences". (18)

    However, this in no way detracts from the fact that armed forces as such must submit to the rules of international law applicable in armed conflict, this being a constitutive condition for the recognition of such forces, within the meaning of Article 43 ' (Armed forces). '

    Paragraph 2 -- Compliance with the rules of international law applicable in armed conflict

    1689 Under the terms of Article 85 of the Third Convention, prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of that Convention. (19) This means that violation by a combatant of the rules of international law applicable in armed conflict, does not deprive such a combatant of his right to be treated as a prisoner of war. However, under the Hague Regulations, this did not apply to members of militias and volunteer corps, unless they gave evidence in the [p.526] field that they did indeed fulfil the conditions listed in Article 1 of the Regulations. Thus they had to prove that they acted in accordance with the laws and customs of war in their operations. (20) Article 4A(2) of the Third Convention does not seem to have modified this situation (21) with regard to members of resistance movements, so that the paragraph under consideration here actually constitutes an amendment to that article on this point. In fact, this paragraph is perfectly clear and abolishes any distinction; whether it concerns a guerrilla fighter or a uniformed soldier of the regular army, if such a combatant has violated the rules of international law applicable in armed conflict, that fact by itself shall not deprive him of his status. Any other solution would have been considered to be unjust (22), or completely inappropriate (23), because it would be seen as tending to encourage the escalation of violence. This is not without prejudice to the problem of civilian population. This forms the object of paragraphs 3 and 4 of this article.

    1690 As regards members of regular armed forces, the Protocol therefore does not change the situation provided for in the Third Convention. They remain prisoners of war, even after they have been convicted for breach of the law applicable in armed conflict, unless they have been captured by a Party to the conflict which has made a reservation to Article 85 of the Third Convention. (24) In this case prisoner of war status is withdrawn in the case of a "war crime". (25) All members of armed forces recognized by the Protocol practising guerrilla warfare, benefit from the same prerogatives and are subject to the same restrictions. However, such guerrilla fighters can never be prosecuted for the mere fact of taking up arms, as before capture they had the status of legitimate combatants. (26) Finally, the obligation for all combatants to comply with the rules of international law applicable in armed conflict remains in its entirety, for such combatants can be punished in case of breach. This certainly indicates that in this article the Protocol in no way legalizes terrorism, as has sometimes been claimed. (27)

    [p.527] Paragraph 3 -- Distinction between combatants and the civilian population

    1691 This paragraph comprises three sentences. The first sentence expresses the fundamental rule that combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. The second sentence contains an exception to the general rule, which is itself mitigated by a concession to this rule. (28) The third sentence is a safeguard clause intended to prevent acts from being considered as acts of perfidy if they comply with the requirements provided for in the second sentence. Thus combatants are obliged to distinguish themselves from the civilian population, albeit not in all circumstances.

    ' First sentence -- The fundamental obligation for combatants to distinguish themselves from the civilian population '

    1692 This provision imposes the fundamental rule that combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack, or in any action carried out with a view to combat. It would be a mistake to see it as a purely perfunctory statement or a provision which, at best, refers to so-called regular military operations and not to guerrilla tactics. In reality, under normal conditions members of so-called regular forces wear uniform more or less permanently and this article is not intended to change this practice (paragraph 7). Thus it is guerrilla fighters who are the chief concern of this provision. The wording in particular has the advantage of unambiguously indicating that the exception provided for in the second sentence is certainly only an exception. (29)

    1693 According to some delegations, this distinction should be clearly recognizable, (30) as in Article 4A(2) (b) of the Third Convention, (31) and throughout military operations. (32) Others considered that this general rule does not "seem to differ from universally acknowledged standards". (33) The minimum conclusion which can be drawn from these indications is that any armed combatant (see the wording of the exception in the second sentence) should, in the context of this provision, clearly distinguish himself from the civilian population by means of a [p.528] characteristic piece of clothing which is visible, as long as he is armed, and whatever the nature of his arms. (34)

    1694 On the other hand, it seems doubtful, in the light of the wording of the second sentence of this paragraph, which deals only wit "armed" combatants, that the obligation also extends to members of a guerrilla movement who are not armed and whose participation in military operations may or may not be limited, but remains indirect. As a general rule, combatants of this category, whose activity may indicate their status, (35) should be taken under fire only if there is no other way of neutralizing them. (36) However, it is self-evident that if they are in an area of military objectives, they run the risks to which these military objectives are exposed. If they are caught in the act of spying, they may be treated as spies. When they are captured, they may be treated as spies, if there are grounds to do so.

    1695 Finally, the ' ratio legis ' of this provision is given by the clause which states that it is "in order to promote the protection of the civilian population from the effects of hostilities" that combatants are obliged to distinguish themselves. Since the adversary is obliged at all times to make a distinction between the civilian population and combatants, in order to ensure respect for and protection of the civilian population (Article 48 -- ' Basic rule '), such a distinction must be made possible. If, for example, the invader is confronted during his advance (the problem of occupation will be examined in the second sentence) by a combined resistance of regular forces presenting identifiable military targets, and the harassment of guerrilla forces which are indistinguishable from the civilian population, it is more or less certain that the security of this population will end up by being seriously threatened. One delegation went so far as to affirm that in unoccupied territory a guerrilla fighter can always manage to distinguish himself from the civilian population when he is engaged in a military operation. (37) It is certain that the humanitarian principle requiring appropriate clothing, applies throughout military operations (38) in all cases which are not covered by the second sentence of this paragraph.

    1696 With one exception, the sanction for a guerrilla fighter failing to comply with the obligation to distinguish himself from the civilian population in accordance with this provision, when required to do so, will be "merely trial and punishment for violation of the laws of war, not loss of combatant or prisoner of war status". [p.529] The exception leading to loss of status relates to "the guerrilla fighter who relies on his civilian attire and lack of distinction to take advantage of his adversary in preparing and launching an attack". (39) It will be examined in detail in the context of the second sentence of this paragraph and of paragraph 4. Suffice it to say here that the combatant can lose his status just as easily when he fails to carry his arms openly in the exceptional situations referred to in the second sentence, as when he abusively assumes the existence of an exceptional situation and fails to wear a distinctive sign in combat.

    ' Second sentence -- Exception to the fundamental obligation and limitations on this exception '

    1697 The first part of this provision specifies, or endeavours to specify situations in which a guerrilla fighter cannot be required to distinguish himself from the civilian population under the conditions laid down in the first sentence. The second part of the sentence imposes the obligation on this guerrilla fighter to carry his arms openly, not only during a military engagement, but also during the period preceding the engagement, if he wishes to retain his status. These two points will be examined in turn below.

    a) ' Situations where, owing to the nature of the hostilities, an armed combatant cannot distinguish himself from the civilian population '

    1698 As stated before, we are dealing with an exception. According to the Rapporteur,

    "That exception recognized that situations could occur in occupied territory and in wars of national liberation in which a guerrilla fighter could not distinguish himself [from the civilian population] throughout his military operations and still retain any chance of success." (40)

    [p.530] For many delegations such situations were above all the wars of national liberation referred to in Article 1 ' (General principles and scope of application), ' paragraph 4. (41) Some even wished to make an explicit reference to this in the context of the provision under consideration here. However, this proposal was strongly opposed by others. (42) Thus, according to the text, it is "the nature of the hostilities" that is the determining factor (see supra, note 40), without explicit reference to either wars of national liberation or to occupied territory. However, for the majority of those delegations who expressed their views on this point, this clause does actually refer to situations which can only arise in occupied territory, apart from wars of national liberation, which in any case, it could be claimed, also take place in occupied territory. (43) Some delegations stated that this rule can only [p.531] cover exceptional cases such as those which arise in occupied territories, or alternatively extremely exceptional cases which can only arise in occupied territories. (44) On the other hand, other delegations were less restrictive and envisaged "certain situations here, for instance in occupied territories", (45) or simply "situations of guerrilla warfare", i.e., situation in warfare to which "the weaker party normally would have to resort in the context of resistance against the domination of a territory by alien forces", and even defence against an aggressor. (46)

    ' The problem of occupation '

    1699 These reservations can perhaps be partly explained by the fact that it is not always easy to determine exactly whether or not a territory is occupied in the sense of ' occupatio bellica ', or from what moment that can be considered to be the case. (47) With the exception of certain cases of concealed occupation, it does not seem that there can be a question of occupation except where organized military resistance has been defeated, where the sovereign exercise of power conferred by law on the government has become impossible, and where an administration has been established for the purpose of maintaining law and order:

    "The term invasion implies a military operation while an occupation indicates the exercise of governmental authority to the exclusion of the established government. This presupposes the destruction of organized resistance and the establishment of an administration to preserve law and order. To the extent that the occupant's control is maintained and that of the civil government eliminated, the area will be said to be occupied." (48)

    1700 However, as soon as control of the occupied territory is once more put in doubt as a result of fighting, whether or not this is in conjuction with forces from outside the occupied territory, the status of occupation ceases to exist in the region concerned:

    "Any part of territory in which the occupant has been deprived of actual means for carrying out normal administration by the presence of opposing military forces would not have the status of "occupied" territory within the terms of Articles 2 and 42 of the Hague Regulations. The fact that other parts of the occupied country, as a whole, are under effective enemy occupation would not affect this situation." (49)

    [p.532] 1701 Consequently the concept of occupation can have some degree of flexibility, if only according to the development of the military situation. Apart from this, these concepts do not necessarily influence the conditions of the applicability of the fourth Convention; as they fall into the power of the invader, the inhabitants of the invaded territory become protected persons.

    1702 The interpretation of the clause that "the nature of the hostilities" determines the extent of the exception, would be easier to resolve if the type of combatant involved in the fighting -- the guerrilla combatant -- were considered in the context of a military situation which leaves no alternative (50) to one or other of the Parties to the conflict apart from guerrilla warfare. This implies either that there are no armed forces comparable to those of the adversary and capable of stopping the invasion or preventing occupation, or that the resistance of such forces has completely ceased. It would seem that only the responsible command mentioned in Article 43 ' (Armed forces) ' is in a position to determine the existence of such a situation and that consequently this provision is applicable for the members of the armed forces concerned.

    ' Governmental armed forces '

    1703 However,

    "Regulars who are assigned to tasks where they must wear civilian clothes, as may be the case, for example, with advisers assigned to certain resistance units, are not required to wear the uniform when on such assignments". (51)

    This means that the possibility for a combatant to distinguish himself from the civilian population solely by carrying arms openly, also exists for members of the regular armed forces, though only under the same exceptional circumstances as for members of so-called guerrilla forces. (52)

    ' Levée en masse '

    1704 Finally, in case of certain Parties to the conflict limiting the applicability of this provision strictly to occupied territories, the concept of ' levée en masse ' (mass [p.533] uprising) could be invoked (53). It cannot be overlooked, as it allows the combatants to distinguish themselves solely by carrying their arms openly. It seems to be accepted nowadays that a ' levée en masse ' can take place in any part of the territory which is not yet occupied, even when the rest of the country is occupied, or in an area where the Occupying Power has lost control over the administration of the territory and is attempting to regain it. (54) On the other hand, it does not seem conceivable with regard to a retreating enemy, as this is manifestly no longer an invading army.

    1705 According to the traditional interpretation, it is not necessary for the population engaged in the ' levée en masse ' to be surprised by the invasion; the provision on the ' levée en masse ' is also to the advantage of a population which has been forewarned, provided that it has not had time to organize itself in accordance with the requirements laid down in Article 43 ' (Armed forces). ' This benefit is also accorded to a population acting on the orders of its government, for example, obeying orders given by radio or through the media. The requirement of carrying arms openly must probably be understood as an obligation to always carry them visibly.

    b) ' Conditions under which the combatant must carry his arms openly '

    1706 This obligation to carry arms openly applies:

    "(a) during each military engagement; and
    (b) during such time as he [the combatant] is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate."

    1707 The possibility for the combatant referred to in this provision not to always distinguish himself from the civilian population by his clothing, as indicated above, is in his interests. The obligation to respect at least the minimum conditions now indicated, is in the interests of the civilian population. The Rapporteur expressed it very well:

    "The purpose of this requirement is to identify the individual as a combatant. Implicitly, the rule requires that the combatant knows, or should know, that he is visible. The purpose of this rule, of course, is to protect the civilian population by deterring combatants from concealing their arms and feigning civilian non-combatant status, for example, in order to gain advantageous positions for the attack. Such actions are to be deterred in this fashion, not simply because they are wrong (criminal punishment could deal with that), [p.534] but because this failure of even minimal distinction from the civilian population, particularly if repeated, places that population at great risk." (55)

    1708 Sub-paragraph (a): The point about carrying arms openly during all military engagements is self-evident. It means that the arms must be carried openly during the battle itself, whether it is of an offensive of defensive nature. In fact, subparagraph (b) is usually concerned with offensive action where the combatant concerned takes the initiative, which is certainly not typical of all combat operations. It is even possible that a skirmish might continue during retreat, in which case a guerrilla combatant must incontestably carry his arms openly, particularly when he is surrounded by civilians in flight. While combatants take up a defensive position they must carry arms openly when intending to open fire. This does not exclude the possibility of an ambush, but an ambush is subject to the same conditions as those which apply to uniformed troops. It is the natural or artificial environment which should camouflage the combatant engaged in the ambush, and not his civilian clothing, and he should carry his arms in the same way as a soldier of the regular army would in the same situation. (56)

    1709 Sub-paragraph (b): As stated above, deployment usually means offensive action. However, there was a considerable difference of opinion during the Conference on its interpretation. The Rapporteur summarized these views as follows:

    "Some delegations stated that they understood it as meaning any movement toward a place from which an attack was to be launched. (57) Other delegations stated that it included only a final movement to firing positions. (58) Several delegations stated that they understood it as covering only the moments immediately prior to attack". (59)

    1710 For supporters of the first interpretation, deployment would have commenced when the person or persons concerned moved out from an assembly point or [p.535] rendezvous, with the intention of advancing on their objective, and at that point, regardless of risks, arms must be carried openly; (60) the words meant "any uninterrupted tactical movement towards a place from which an attack was to be launched", (61) a movement in which combatants could not use their failure to distinguish themselves from civilians as an element of surprise in the attack. (62)

    1711 The question is important: there is more than a subtle difference between "any movement toward a place from which an attack is to be launched" and the "military deployment preceding the launching of an attack", (63) "the last step when the combatants were taking their firing positions just before the commencement of hostilities" (64) and the deployment "immediately before the attack, often coinciding with the actual beginning of the attack". (65) Now the violation of this provision entails the application of paragraph 4, which opens the way to sanctions. (66)

    1712 However, such military deployment is only subject to the rule on the open carrying of arms by a combatant taking part in it, "during such time as he is visible to the adversary". This clause implies that the combatant knows or should know that he is visible to the adversary, (67) and failing this, the obligation does not apply. (68) One delegation which expressed its view on this matter in plenary meeting considered that the guerrilla combatant only has to carry his arms openly "when within range of the natural vision of his adversary". (69) A representative of a national liberation movement added, "visible to the naked eye", (70) which would exclude electronic means of surveillance and of observation. This interpretation is justified by the fact that it is mainly in cases when he can be seen directly, (71) that a guerrilla fighter can open fire and that his adversary is immediately threatened. It is therefore at that moment that the distinction between an armed combatant and an innocuous civilian should be perfectly clear, if a confusion [p.536] between civilians and combatants is to be avoided; the Protocol would then fail to achieve its aim (Article 48 -- ' Basic rule '). It is also the acceptance by the guerrilla fighter of the risk of being recognized as a legitimate military target from this moment on that distinguishes him from a terrorist. (72)

    1713 On the other hand, the formula of the open carrying of arms and of deployment does not provide an adequate answer in cases where a combatant in civilian clothing uses arms which must not be prematurely revealed if they are to be effective, for example, a hidden device consisting of a bomb in a suitcase, and this fact was not overlooked. (73) However, in this respect the situation is not fundamentally different from that which applies to mines and booby-traps which are also used by regular forces. Thus it is only by wearing a distinguishing sign when placing these devices in position, that these combatants can be distinguished from the civilian population. (74)

    1714 ' In conclusion, ' the wording of the second sentence of paragraph 3 represents a compromise which was only achieved after long and patient negotiation. The Rapporteur made the following remark regarding the article as a whole, which applies particularly to this point:

    "it represented a major development in the law to make it conform more closely to reality, while at the same time giving the guerrilla fighter an incentive to distinguish himself from the civilian population where he reasonably could be expected to do so". (75)

    However, it is a fact that no delegation at the Conference finally got precisely the terms it wished, whether this was because of the lack of explicit mention of national liberation movements or occupied territory, which some would have wanted, or of guerrilla combatants, which others would have wanted. The interpretation of the term "deployment" remained the subject of divergent views. Although the rule does not specify exactly its scope of application with regard to specific situations, it does not exclude any particular situation once reality, and consequently humanity, requires that the rule applies. From the practical point of view, the fundamental interests of the civilian population and the concern of both Parties to the conflict not to alienate this population by conduct which could lead to most serious errors or the worst abuses, should dictate the most reasonable and consistent interpretation that is possible in any specific situation. Perhaps solutions can best be found in specific situations as the outcome of a sort of interaction, i.e., the search from both sides for an intermediate interpretation that is acceptable in practice. The obligation to carry arms openly during any deployment preceding the launching of an attack should in reality, in order to be effective, present itself as an equation offering, in the final analysis, comparable advantages to both Parties to the conflict.

    ' Third sentence -- Saving clause against the unfounded accusation of perfidy '

    1715 There is a certain contradiction in the terms between the provisions of the first two sentences of this paragraph and the text of Article 37 ' (Prohibition of perfidy), ' paragraph 1(c). Amongst the examples of perfidy, this article cites the "feigning of civilian, non-combatant status". The combatants referred to in Article 44 are not always obliged to reveal their status. Certain delegations therefore made their acceptance of the above-mentioned text of Article 37 ' (Prohibition of perfidy) ' subject to the insertion of this safeguard clause: acts which comply with the requirements laid down in this paragraph are not perfidious. However, it follows that those which do not comply with these requirements are, or may be, perfidious. Hence the fundamental importance of a consistent interpretation of the preceding rules by the Parties to the conflict. Moreover, in all cases where the captor considers that the provisions of this paragraph have been violated, it is up to him to furnish proof (Article 75 -- ' Fundamental guarantees, ' paragraph 4(d)). (76)

    Paragraph 4 -- Sanctions in case of violation of the requirements laid down in the second sentence of paragraph 3

    1716 The introduction of this paragraph gave rise to some difficulties. Being concerned essentially with the protection of the civilian population, certain delegations simply wanted to deprive any combatants who do not comply with the minimum requirement of visibility laid down in paragraph 3 of their combatant and prisoner-of-war status. To this, other delegations replied that combatants without visible signs are not more indifferent of the civilian population than others, and that in these circumstances all combatants who do not respect the civilian population should be deprived of their status. In addition, representatives of national liberation movements claimed that members of these movements derive their status exclusively from Article 1 ' (General principles and scope of application), ' paragraph 4, and considered any other solution as discrimination against them.

    1717 However, towards the end of the third session of the Conference, the text of paragraph 4 finally emerged from these opposing views, (77) which had for a long time seemed irreconcilable. According to the Rapporteur, it

    "[...] was considered as the best basis for a compromise. It obtained a considerable degree of support. In essence, paragraph 4 provides a separate, but equal, status for combatants who are captured while failing to observe even the minimum rule of distinction set forth in the second sentence of paragraph 3. They are not to be prisoners of war (and under paragraph 3, they will have forfeited their combatant status), but they shall benefit from [p.538] procedural and substantive protections equivalent to those accorded prisoners of war by the Third Geneva Convention and Protocol I. Several representatives made the point that this paragraph is not, in any event, intended to protect terrorists who act clandestinely to attack the civilian population". (78)

    1718 The first sentence contains the principle that the combatant who has violated the provisions of the second sentence of paragraph 3, loses his right to prisoner-of-war status, but preserves the right to be treated as one. The second sentence assures this prisoner the procedural guarantees laid down in the Third Convention in the event that he is tried and punished for any offences he may have committed.

    ' First sentence -- Loss of prisoner-of-war status and treatment as a prisoner of war '

    1719 This provision covers combatants whose membership of armed forces organized in accordance with Article 43 ('Armed forces ') is not in doubt, whether or not this problem of membership is resolved by reason of the presumptions established by Article 45 ' (Protection of persons who have taken part in hostilities), ' paragraph 1. (79) It applies to combatants captured ' flagrante delicto ' (80) of a breach of the second sentence of paragraph 3. Thus this could be a combatant who distinguishes himself from the civilian population solely by openly carrying his arms in a situation where the exception allowed in paragraph 3 does not apply, or a combatant whose exceptional situation is certainly recognized, but who does not carry his arms openly under the stated minimum requirements. The text is explicit: the combatant loses his right to be considered as a prisoner of war, but he is treated as a prisoner of war ("he shall nevertheless be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol"). In fact, if one refers to the wording of the second sentence of paragraph 3 ("[...] he shall retain his status as a combatant, provided that, in such situations, [...]"), it should be remembered that, above all, this person has lost his status as a combatant. Thus criminal prosecution becomes possible, even for hostile acts which would not be punishable in other circumstances. In other words, such a prisoner can be made subject to the provisions of the ordinary penal code of the Party to the conflict which has captured him. At least, this is the view of the majority of the delegations. (81) However, one representative was less formalistic as he merely declared that "theoretically", such a combatant no longer had the status of prisoner of [p.539] war. (82) Whichever view one supports, criminal proceedings always remain available in the case of a breach of Article 37 ' (Prohibition of perfidy), ' i.e., in case the combatant in question would be accused of having killed or injured an adversary by resorting to perfidy.

    ' Second sentence -- procedural guarantees in the event of penal proceedings '

    1720 This provision does not require a great deal of explanation. As a combatant captured while he was not complying with the requirements laid down in the second sentence of paragraph 3 is entitled to treatment as a prisoner of war, he is also entitled to all the guarantees laid down in the Third Convention regarding penal and disciplinary proceedings (Articles 82 -108). (83) However, this also means that whenever the laws, regulations and other measures of general application in force for the armed forces of the Detaining Power do not recognize in a specific case the applicability of the rule for exceptional situations of paragraph 3, or the adversary's interpretation of it, penal proceedings can be instigated (Third Convention, Articles 82 and 85 ), provided that they apply equally, for a similar breach, to members of the armed forces of this Power (ibid., Article 82 , paragraph 2). (84) In fact, the latter is obliged to ensure compliance with the applicable law by its own troops, and in particular, to give all appropriate instructions in this respect to its military commanders (Article 87 ).

    Paragraph 5 -- Limitation of the applicability of the sanction laid down in paragraph 4 to combatants captured in the act

    1721 The Rapporteur explains this provision as follows:

    "Paragraph 5 is an important innovation developed within the Working Group. It would ensure that any combatant who is captured while not engaged in an attack or a military operation preparatory to an attack retains his rights as a combatant and a prisoner of war whether or not he may have violated in the past the rule of the second sentence of paragraph 3. This rule should, in many cases, cover the great majority of prisoners and will protect them from any efforts to find or to fabricate past histories to deprive them of their protection." (85)

    [p.540] Thus only a member of the armed forces captured in the act can be deprived of his status as a combatant and of his right to be a prisoner of war. For paragraph 4 to be applicable, it is necessary that the violation was committed at the time of capture or directly before the capture. The link in time between violation and capture must be so close as to permit those making the capture to take note of it themselves. Thus this is a case of ' flagrante delicto '. (86) There is no doubt that this is, ' mutatis mutandis, ' analogous to the situation of the spy, and consequently there is some relationship with the concept of an unprivileged belligerent. (87) Like a spy, the combatant who does not carry his arms openly must be caught in the act for the sanction to be applicable to him. Similarly, like him, the combatant who is captured while he is not committing this breach, does not incur any responsibility for acts which he committed previously. However, it should be noted that in contrast to espionage, which is not prohibited by the law of armed conflict, but is merely made punishable, it is prohibited in the Protocol for a combatant not to carry his arms openly, and in principle the Protocol makes him responsible for this. However, in practical terms the adversary cannot do anything against him as a matter of criminal law unless he has surprised him ' flagrante delicto ' at the moment of capture. The prohibition exists, but the sanction can only be applied under this condition. A combatant who commits this breach preserves, at least temporarily, his status as a combatant, and his right to prisoner-of-war status. If he is captured while he is not committing this breach, he is a prisoner of war and punishment can only be meted out in accordance with paragraph 2.

    [p.541] Paragraph 6 -- Without prejudice to Article 4 of the Third Convention

    1722 According to the Rapporteur, this paragraph

    "[...] is a savings clause designed to make clear that Article 42 is not intended to supplant Article 4 of the Third Geneva Convention of 1949 in cases where the latter would entitle a prisoner to prisoner-of-war status." (88)

    In other words, Article 4 , particularly its paragraph A(2), which refers to the four well-known conditions laid down in the Hague Regulations, remains in force and coexists with the rules of the Protocol, although Article 44 covers all situations with which a guerrilla fighter may be confronted. During the discussions of the Working Group, some delegations seemed to regret that this provision was not included in Article 43 (' Armed forces '). This concern appeared to spring from the question of ' levée en masse, ' as those taking part in it are combatants even when they do not comply with the conditions laid down in Article 43 , particularly with regard to their organization. One might possibly conclude that although Article 44 does not deprive any of the categories laid down in Article 4 of the Third Convention of these persons' right to the status of prisoner of war, Article 43 ' (Armed forces), ' which does not contain the same savings clause, certainly has the effect of withholding recognition from the ' levée en masse. ' Thus there would be a contradiction on this point between these two articles of the Protocol. However, as nothing during the discussions could have given rise to the thought that the Conference had the intention of no longer recognizing the ' levée en masse, ' such an intention should not be presumed, and the rule of Article 4A(6) of the Third Convention has survived intact. (89) It would not actually seem very reasonable if the Conference should have intended to suppress this possibility of defence at a time when the risks of unexpected invasions of any territory, by whoever it may be, are greater than ever, as a result of air forces and airborne troops (also see ' supra, ad ' paragraph 3, second sentence, p. 532).

    Paragraph 7 -- Confirmation of the practice concerning the wearing of a uniform by regular troops

    1723 The general character of the heading of the Section "Combatant and prisonerof-war status" and the wording of the article itself, which refrains from referring explicitly to national liberation movements and to resistance movements, led to some concern amongst some delegations. They felt that this might lead to the interpretation that the generally accepted practice of States concerning the wearing of a uniform by combatants belonging to regular armies might be put into question. This was not the intention of the Conference, as is clearly indicated in this paragraph. Thus nothing has changed on this point regarding the recognized practice of States: a combatant of the regular army who engages in hostile acts in civilian clothing, without being able to rely on the conditions described in the second sentence of paragraph 3, is open to the accusation of perfidy (' Article 37 -- Prohibition of perfidy, ' paragraph 1(c)). (90) This does not mean that a combatant of a regular army can never dispense with wearing a uniform while he is engaged in hostile acts. However, this possibility is open to him, as we have seen above, (91) only in the same situations and under the same exceptional conditions as those which apply to members of guerrilla forces. Although not explicitly stated, this article is primarily aimed at guerrilla fighters.

    Paragraph 8 -- Extension of the benefits available under the First and Second Conventions to all combatants as defined in Article 43

    1724 Article 13 of the First Convention and Article 13 of the Second Convention provide a list of categories of persons protected by these Conventions, which reproduce Article 4A of the Third Convention. This might lead to the fear that this list constitutes a ' numerus clausus, ' excluding all the categories of persons not included there from the scope of the first and Second Conventions. (92) The present provision of paragraph 8, which declares that all members of the armed forces of a Party to the conflict, as defined in Article 43 ' (Armed forces), ' shall be entitled to the protection granted by the first and Second Conventions, removes any ambiguity. It is equally clear that such protection is due to all prisoners, whether or not they have the prisoner-of-war status at the time of capture.

    ' J. de P. '


    (1) [(1) p.521] See O.R. XIV, pp. 317-385, CDDH/III/SR.33-36 and, for the text in extenso of the statements of most of the delegations, ibid, pp. 447-556;

    (2) [(2) p.521] O.R. III, pp. 178-186;

    (3) [(3) p.521] For the text presented by the ICRC, see supra, ad Section II, p. 503, note 1;

    (4) [(4) p.521] This refers to Articles 35, 40 and 41 of the ICRC draft, (O.R. III, pp. 162-165 and pp. 174-177), and also to the proposals for Articles 42 bis (a) and (b) and 42 ter, which, with the exception of the proposal for 42 bis (b), were finally withdrawn by their sponsors. For the texts of these proposals, see O.R. III, pp. 187-191. In the face of such a diversity of proposals, the Rapporteur of Committee III drew up a questionnaire on 15 points (CDDH/III/GT/75), listing the principal questions for discussion, and intended as a guide, at least to begin with, for the debates of the Working Group;

    (5) [(5) p.521] O.R. XV, pp. 155-156, CDDH/III/SR.55;

    (6) [(6) p.521] O.R. VI, p. 121, CDDH/SR.40;

    (7) [(7) p.521] See O.R. XV, pp. 155-187, CDDH/III/SR.55 and 56, and O.R. VI, pp. 121-155, 178-181, 183-184, 185-186, 189-192, 196, CDDH/SR.40 and 41;

    (8) [(8) p.522] For the plenary meetings, see O.R. VI, CDDH/SR.40, p. 125, para. 37; p. 127, para. 45; p. 129, para. 57; p. 133, para. 77; pp. 138-139 (Annex) and CDDH/SR.41, p. 153, para. 49; p. 154, para. 54; p. 155, para. 59; p. 156, para. 64; pp. 190-191 (Annex). One delegation explicitly referred to Article 19(c) of the Vienna Convention on the Law of Treaties (reservations incompatible with the object and purpose of the treaty), while others referred to this implicitly. One representative considered that Articles 1, 43, 44, 45 and 96 of the Protocol should not be the object of reservations. See also infra, note 15;

    (9) [(9) p.523] There is a risk of abuse here which did not escape the notice of some delegations. See O.R. XIV, p. 333, CDDH/III/SR.33, para. 72, and pp. 361-362, CDDH/III/SR.35, para. 24; see also O.R. III, pp. 185-186, CDDH/III/259;

    (10) [(10) p.523] Cf. ' Manual of Military Law, part III ', The Law of War on Land, para. 95 (London, HMSO, 1958). However, it has been claimed that members of national liberation movements cannot always fulfil all the conditions with which members of resistance movements can comply, though this statement was probably about the sign of visibility (O.R. XIV, pp. 320-321, CDDH/III/SR.33, para. 22). See, in addition, O.R. V, p. 70, CDDH/SR. 7, para. 30; p. 96, CDDH/SR.10, para. 35 and p. 98, para. 43;

    (11) [(11) p.523] See J.J.A. Salmon, op. cit., p. 81;

    (12) [(12) p.523] See H. Meyrowitz,"Le droit de la guerre dans le conflit vietnamien", 13 AFDI, 1967, particularly p. 176, and the statement of the NLF (National Liberation Front), in October 1965, that the Geneva Conventions contained provisions which did not correspond to either the activities or the organization of its armed forces (IRRC, August 1966, p. 400). However, the NLF nevertheless claimed that it employed a humanitarian and charitable policy towards prisoners that fell into its hands (ibid., see also M. Veuthey, op. cit., p. 341;

    (13) [(13) p.523] Vienna Convention on the Law of Treaties, Articles 26 and 31, para. 1;

    (14) [(14) p.523] However, one delegation affirmed that they should show that they were "in a position to respect, and were respecting the rules of humanitarian law" (O.R. XIV, pp. 371-372, CDDH/III/ SR.35, para. 80);

    (15) [(15) p.524] O.R. VI, pp. 299-300, CDDH/SR.44, and ' ILC Yearbook ', 1976, vol. II, Part II, p. 104, para. 21. The Protocol, like the Conventions, does not contain provisions on reservations, and therefore general international law applies, including the Vienna Convention, of which Article 19(c) prohibits any reservation incompatible with the object and purpose of the treaty. Although a number of delegations came out against the possibility of making any reservations to Article 44 (cf. supra, pp. 520-522, and note 8), no statement to this effect was made in respect of Article 85. However, it is noteworthy that none of the Parties to the Conventions formulated any reservations regarding grave breaches, as defined in them, and which correspond to the principles laid down in Nuremberg and by the United Nations International Law Commission in 1950. In Article 85 of its draft the ICRC had proposed that all reservations should be forbidden in respect of Articles 5[5], 10[10], 20[20], 33[35], 35, paragraph 1, first sentence [37], 38, paragraph 1, first sentence [41], 41[43], 46[51] and 47[52]. This proposal was not retained by the Conference. At a more general level, see also the introduction to Part VI, infra, p. 1059;

    (16) [(16) p.524] An illustration of this principle can be found in para. 3 of Article 44which allows a derogation from the obligation to distinguish oneself from the civilian population in exceptional circumstances for as long as such circumstances apply, and only in favour of such categories of combatants as cannot submit to the obligation because of the nature of the hostilities;

    (17) [(17) p.524] O.R. XIV, pp. 260-261, CDDH/III/SR.28, para. 8;

    (18) [(18) p.525] O.R. XV, p. 402, CDDH/236/Rev.1, para. 86;

    (19) [(19) p.525] A reservation was made in this respect by the following countries: Albania, Angola, Bulgaria, Byelorussian SSR, People's Democratic Republic of China, Czechoslovakia, German Democratic Republic, Hungary, Democratic People's Republic of Korea, Poland, Romania, the Ukraine, USSR, Socialist Republic of Viet Nam. The text of the reservation made by the USSR was as follows: "The Union of Soviet Socialist Republics does not consider itself bound by the obligation, which follows from Article 85, to extend the application of the Convention to prisoners of war who have been convicted under the law of the Detaining Power, in accordance with the principles of the Nuremberg Trial, for war crimes and crimes against humanity, it being understood that persons convicted of such crimes must be subject to the conditions obtaining in the country in question for those who undergo their punishment."
    The United Nations International Law Commission has defined war crimes on the basis of the Nuremberg principles as: "Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity."
    As regards crimes against humanity, these were defined by the International Law Commission as: "Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecution on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime." (Report of the ILC covering the work of its second session, 1950, supplement No. 12 (A/1316). On this point, see also the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, Resolution 2840 (XXVI) of the United Nations General Assembly on the question of the punishment of war criminals and of persons who have committed crimes against humanity and Resolution XII of the XXIst International Conference of the Red Cross (Istanbul, 1969), "War crimes and crimes against humanity". The reservations made by the above-mentioned countries to Article 85 of the Third Convention are in no way set aside by the Protocol. In addition, See C. Pilloud, "Reservations to the Geneva Conventions of 1949", op. cit.;

    (20) [(20) p.526] See "The Hostages Trial", 8 ' Law Reports, ' pp. 57-59 and 75;

    (21) [(21) p.526] See, for example, W.J. Ford, "Resistance Movements and International Law", ' IRRC, ' October 1967 to January 1968, particularly December 1967, pp. 628-629; for the discussion of the problem, see A. Rosas, op. cit., pp. 333-338 and pp. 361-375. This requirement also applied to a ' levée en masse ' (Third Convention, Article 4A(6) for which the conditions remain unchanged since it does not concern members of armed forces organized in accordance with Article 43 (see, in addition, supra, ad Art. 43, p. 510 and infra, pp. 532-533);

    (22) [(22) p.526] See in particular, O.R. XIV, pp. 444-556, CDDH /III/SR.33-36, Annex, in particular pp. 519-520, para. 6;

    (23) [(23) p.526] Ibid., p. 520, paras. 7 and 8, and pp. 547-548, para. 14; for the opposite point of view, see O.R. XV, p. 122, CDDH/III/51, paras. 5 and 6, and pp. 137-138, CDDH/III/SR.53, paras. 16-20;

    (24) [(24) p.526] O.R. XV p. 402, CDDH/236/Rev.1, para. 87;

    (25) [(25) p.526] Supra, note 19;

    (26) [(26) p.526] See also O.R. XIV, pp. 321-322, CDDH/III/SR.33, paras. 26-28;

    (27) [(27) p.526] In this context, terrorism is understood to be the systematic attack on non-military objectives in order to force the military elements of the adverse Party to comply with the wishes of the attacker by means of the fear and anguish induced by such an attack;

    (28) [(28) p.527] This procedure is not exceptional in any way; see, for example, Art. 33, para. 2, of the First Convention and ' Commentary I ', p. 275;

    (29) [(29) p.527] See O.R. XV, CDDH/III/SR.55, p. 158, para. 17, and p. 159, para. 24; and CDDH/III/ SR.56, p. 175, para. 36, and p. 186, para. 82; O.R. VI, CDDH/SR.40, p. 134, paras. 79 and 83; and CDDH/SR.41, p. 144, para. 19; p. 146, para. 26; p. 149, para. 41; p. 150, para. 44;

    (30) [(30) p.527] O.R. XV, p. 166, CDDH/III/SR.55, para. 63; O.R. VI, p. 136, CDDH/SR.40, and p. 150, CDDH/SR.41, para. 44;

    (31) [(31) p.527] O.R. XV, p. 172, CDDH/III/SR.56, para. 19;

    (32) [(32) p.527] O.R. VI, p. 132, CDDH/SR.40, para. 74;

    (33) [(33) p.527] O.R. XV, p. 158, CDDH/III/SR.55, para. 17;

    (34) [(34) p.528] However, it would no longer be possible to deny the status of combatant and prisoner of war to a guerrilla fighter armed only, for example, with a pistol or hand grenade, possibly concealed, by alleging that he is not carrying his arms openly (cf. ' British Military Manual ' quoted above, para. 94, which denies the status of combatant to a guerrilla fighter armed in this way);

    (35) [(35) p.528] The function of such unarmed combatants can consist of carrying out reconnaissance missions, transmitting information, maintaining communications and transmissions, supplying guerrilla forces with arms and food, hiding guerrilla fighters (F.A. von der Heydte, ' Annuaire IDI ', 1969, vol. 2, p. 56, quoted by M. Veuthey, op. cit., p. 307)(see also supra, ad Art. 43, p. 515);

    (36) [(36) p.528] Whether one considers the obligations imposed on armed guerrilla fighters, limited to the period of military operations, or the situation of unarmed guerrilla fighters, it should be noted that in either case it amounts to an amendment of Article 4A(2)(b) of the Third Convention. For the view that such limitations were already implicitly contained either partly or wholly in the above-mentioned provision, see A. Rosas, op. cit., pp. 349-352;

    (37) [(37) p.528] O.R. XV, p. 157, CDDH/III/SR.55, para. 12;

    (38) [(38) p.528] And in particular, as stated above, as soon as a combatant is armed;

    (39) [(39) p.529] Report of the Rapporteur, O.R. XV, p. 453, CDDH/407/Rev.1, para. 19;

    (40) [(40) p.529] O.R. XV, p. 453, CDDH/407/Rev.1, para. 19. As stated above, guerrilla warfare is caused "en partie par les inégalités existant entre les moyens militaires et logistiques des occupants et ceux des résistants: la guérilla s'efforce de compenser ces inégalités par des procédés de lutte spécifiques. La surprise, l'embuscade, le sabotage, le combat de rues ou le combat au maquis se substituent à la guerre en rase campagne et à l'affrontement d'unités militaires comparables. Dans ces procédés, le port d'armes apparent et le signe distinctif peuvent ou bien n'avoir pas de signification (pour le sabotage ou l'embuscade par exemple), ou bien être réellement incompatibles avec l'efficacité de la lutte (par exemple lorsque les guérilleros s'appuient sur la population ou sont mélés à elle). Dès lors, refuser les procédés spécifiques, c'est refuser la guérilla. Le droit humanitaire, pour être objectif et crédible, doit laisser à chaque partie des chances égales dans le combat: si une norme de ce droit est incompatible avec ce principe et rend impossible d'avance, pour l'une des parties, la perspective de la victoire, mieux vaut renoncer à établir la norme" ("partly by the inequality existing between the military and logistic means of the occupying forces and those of the resistance forces: the guerrilla fighter attempts to compensate for such inequality by specific procedures in combat. Surprise tactics, ambushes, sabotage, street fighting or fighting in the maquis take the place of war conducted in open country and confrontations between comparable military units. In such procedures the visible carrying of arms and distinguishing signs may either have no significance (for example, in sabotage or in an ambush), or they may really be incompatible with the practicalities of the action (for example, if the guerrilla fighters use the population for support or are intermingled with it). Because of this, refusing to allow specific procedures would be to refuse guerrilla warfare. In order to remain objective and credible, humanitarian law must allow every party an equal chance in combat. If a norm of this body of law is incompatible with this principle and makes it impossible from the outset for one of the parties to have any prospect of victory, it is better not to draft such a norm at all") (translated by the ICRC) Ch. Chaumont, "La recherche d'un critère pour l'intégration de la guérilla au droit international humanitaire contemporain", in ' Mélanges offerts à Charles Rousseau ', Paris, 1974, p. 43, at p. 50, quoted by J.J.A. Salmon, op. cit., p. 89. However, it should be noted that the Conference did not follow these views to the point of dropping the requirement of carrying arms openly;

    (41) [(41) p.530] For the discussions in Committee III, see O.R. XV, CDDH/III/SR.55, p. 161, para. 37; p. 162, paras. 42 and 43; p. 163, paras. 45 and 49; p. 165, para. 58; p. 168, para. 69; and CDDH/III/ SR.56, p. 169, para. 2; p. 170, para. 6; p. 171, para. 12; p. 175, para. 33; p. 180, paras. 57 and 61; p. 183, para. 71; p. 185, paras. 77 and 79. For the discussions in the plenary meetings on Article 44 in general, see O.R. VI, CDDH/SR.40, p. 125, paras. 35-37; p. 126, para. 40; p. 129, paras. 58 and 61; p. 132, para. 75, pp. 138-139 (Annex); and CDDH/SR.41, p. 141, para. 2; p. 142, para. 8; p. 144, para. 14; p. 146, paras. 25-26; p. 149, paras. 38 and 41; p. 150, para. 47; p. 151, paras. 48-49; p. 152, para. 55; p. 153, para. 56; p. 154, paras. 62 and 65; p. 183 (Annex); p. 185, pp. 189-191 and 196. These references do not take into account the preliminary discussions (O.R. XIV, pp. 317-385, and pp. 445-556, CDDH/III/SR.33-36);

    (42) [(42) p.530] In the questionnaire submitted by the Rapporteur to the Working Group of Committee III, (see supra, ad Art. 43, note 28), the following question was asked under number 11: Should there be distinct norms regarding the right to prisoner-of-war status of combatants who do not comply with the requirements of Article 4 of the Third Convention, or should there only be a single norm applicable to all members of the armed forces of a Party to the conflict? Most of the delegations wanted only a single norm;

    (43) [(43) p.530] See, for example, the declaration of understanding made by the United Kingdom, when it signed the Protocol on 12 December 1977 (1c): "that the situation described in the second sentence of paragraph 3 of the Article [44] can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1"; see also, O.R. XV, CDDH/III/SR.56, p. 172, para. 19; p. 174, para. 28; p. 176, para. 39; p. 179, para. 53 for the discussions in the Committee, and for the plenary meetings, O.R. VI, CDDH/SR.40, p. 123, para. 22; CDDH/SR.41, p. 146, para. 24; p. 150, para. 45; however, some of these delegations abstained from the vote on Article 44 (see supra, note 6). Others considered that "situations of armed conflict in which, because of the hostilities, the combatants were unable to distinguish themselves from the civilian population were not defined, but left to each party to appraise as it pleased an arbitrarily" (O.R. VI, pp. 130-131, CDDH/ SR.40, para. 68). One delegation referred to the concept of "national and social liberation movements" (ibid., p. 153, CDDH/SR.41, para. 60);

    (44) [(44) p.531] See O.R. XV, p. 166, CDDH/III/SR.55, para. 63 and p. 186, CDDH/III/SR.56, para. 83; O.R. VI, CDDH/SR.40, p. 123, para. 22; p. 127, para. 47; p. 136, para. 2b (Annex); CDDH/ SR.41, p. 152, para. 53;

    (45) [(45) p.531] See O.R. XV, p. 182, CDDH/III/SR.56, para. 67;

    (46) [(46) p.531] Ibid., pp. 158 and 159, CDDH/III/SR.55, paras. 17 and 24; see also ibid., p. 163, para. 49;

    (47) [(47) p.531] When ratifying the Protocol on 11 June 1979, Yugoslavia made a declaration that under the terms of the Yugoslav Constitution, "no one shall have the right to acknowledge or sign an act of capitulation nor to accept or recognize the occupation of the Socialist Federal Republic of Yugoslavia or of any of its individual parts". See also O.R. XIII, p. 120, CDDH/II/SR.65, para. 21;

    (48) [(48) p.531] "The Hostages Trial", 8 ' Law Reports, ' pp. 55-56;

    (49) [(49) p.531] "Trial of Carl Bauer, Ernst Schrameck and Herbert Falten", 8 ' Law Reports, ' p. 18;

    (50) [(50) p.532] To keep to the text, the key to this provision seems to lie in the reference to situations in which an armed combatant (an unarmed combatant can never lose his status unless he is a spy or mercenary): "cannot so distinguish himself [from the civilian population]". Such situations may result from the occupation and the security measures taken by the occupying forces relating to the possession of arms by the inhabitants of the occupied territory, for example, but they are not restricted to this aspect. In fact, they cover methods of war which have become common, so-called asymmetrical conditions of combat, where the balance of power is out of all proportion in favour of one of the Parties, whether or not the legal régime applicable to occupation is in force, accepted or contested, recognized or denied (see O.R. XIV, p. 324, CDDH/III/SR.33, para. 37; p. 339, CDDH/III/SR.34; p. 374, CDDH/III/SR.36, paras. 8-9; O.R. VI, p. 124, CDDH/SR.40, para. 28; p. 127, para. 44; pp. 132-133, paras. 75-76);

    (51) [(51) p.532] Report of the Rapporteur, O.R. XV, p. 401, CDDH/236/Rev.1, para. 84;

    (52) [(52) p.532] See O.R. VI CDDH/SR.41, p. 146, para. 24 and p. 149, para. 43;

    (53) [(53) p.533] "Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units provided they carry arms openly and respect the laws and customs o war" have the right to prisoner-of-war status in the event of capture (Third Convention, Article 4A(6);

    (54) [(54) p.533] See "Trial of Carl Bauer, Ernst Schrameck and Herbert Falten", 8 ' Law Reports, ' p. 18; see also A. Rosas, op. cit., pp. 377-378;

    (55) [(55) p.534] O.R. XV, pp. 402-403, CDDH/236/ Rev.1, para. 88;

    (56) [(56) p.534] See, for example, ' Reaffirmation, ' "Conclusions and Recommendations of World Veterans Federation, 1967", p. 072, para. 5(c) (Annex XIX);

    (57) [(57) p.534] In this sense, see, in the plenary meetings, O.R. VI, p. 123, CDDH/SR.40, para. 23; p. 128, para. 53; p. 132, para. 74; p. 136, para. 2c; and p. 142, CDDH/SR.41, para. 6; p. 146, para. 24; p. 150, para. 46; p. 152, para. 53. When signing the Protocol on 12 December 1977, the United States and the United Kingdom made a declaration of understanding stating that the term "deployment" signifies "any movement towards a place from which an attack is to be launched". On depositing its instruments of ratification on 15 January 1982, the Republic of Korea made the following declaration: "In relation to Article 44 of Protocol I, the situation described in the second sentence of para. 3 of the Article can exist only in occupied territory or in armed conflicts covered by para. 4 of Article 1, and the Government of the Republic of Korea will interpret the word 'deployment' in para. 3(b) of the Article as meaning 'any movement towards a place from which an attack is to be launched'."

    (58) [(58) p.534] To some extent, see in this sense, in the plenary meetings, the statement that "military deployment meant the last step when the combatants were taking their firing positions just before the commencement of hostilities" (O.R. VI, p. 145, CDDH/SR.41, para. 21; see also ibid., p. 146, para. 25);

    (59) [(59) p.534] In this sense, see in the plenary meetings, O.R. VI, p. 147, CDDH/SR.41, para. 31. For the quotation from the Rapporteur's Report, see O.R. XV, p. 453, CDDH/407/Rev. 1, para. 20;

    (60) [(60) p.535] O.R. XV, p. 176, CDDH/III/SR. 56, para. 38;

    (61) [(61) p.535] Ibid p. 167 CDDH/III/SR.55, para. 64; M. Bothe, K. Ipsen and K.J. Partsch give the following version in German: "[...] während des dem Angriffsbeginn vorausgehenden Aufmarsches", op. cit., p. 34;

    (62) [(62) p.535] O.R. XV, p. 179, CDDH/III/SR.56, para. 53;

    (63) [(63) p.535] Ibid., p. 174, para. 29;

    (64) [(64) p.535] Cf. supra, note 58;

    (65) [(65) p.535] See O.R. VI, pp. 147-148, CDDH/SR.41, para. 31;

    (66) [(66) p.535] One expedient for those who cannot agree with the interpretation of the United States and the United Kingdom would be to accept that in all cases arms must be carried openly, at least from the moment that they are loaded;

    (67) [(67) p.535] Report of the Rapporteur, O.R. XV, p. 402, CDDH/236/Rev.1, para. 88;

    (68) [(68) p.535] O.R. XV, p. 161, CDDH/III/SR.55, para. 37. As the guerrilla fighter does not normally have any appropriate detectors, it seems difficult to accept that this clause could include "any form of surveillance, electronic or otherwise, used to keep a member of the forces of an adversary under observation" (ibid., p. 165, para. 55; see also, p. 157, para. 13; p. 176, CDDH/III/SR.56, para. 38). However, this seemed to be the view of some delegations;

    (69) [(69) p.535] O.R. VI, p. 145, CDDH/SR.41, para. 21;

    (70) [(70) p.535] Ibid., p. 147, para. 31;

    (71) [(71) p.535] In fact, it seems reasonable to accept that this rule only covers light arms with a short firing range. Heavy arms (mortars etc.) are generally camouflaged, even when they are fired, particularly against aerial view, and it is their position, not their concealment, which could compromise the security of the civilian population;

    (72) [(72) p.536] See O.R. XIV, p. 328, CDDH/III/SR.33, para. 47;

    (73) [(73) p.536] O.R. VI, CDDH/SR.40, p. 121, para. 17 and p. 124, para. 31;

    (74) [(74) p.536] Cf. the remark of one delegation which stated that the term "arms" should mean any military arms of any sort whatsoever (O.R. XV, p. 161, CDDH/III/SR.55, para. 37);

    (75) [(75) p.536] Report of the Rapporteur, O.R. XV, p. 454, CDDH/407/Rev.1, para. 21;

    (76) [(76) p.537] On this point, see also infra, ad Art. 45, p. 543;

    (77) [(77) p.537] See particularly O.R. XIV, pp. 464-467, CDDH/III/SR. 33-36, paras. 4-16; p. 476, para. 5; pp. 476-477, para. 7; p. 481, para. 6; p. 500, para. 7; pp. 513-514, para. 5; p. 515, para. 2; p. 522, paras. 10-11; p. 536, para. 7; pp. 552-553, paras. 11-15;

    (78) [(78) p.538] O.R. XV, p. 403, CDDH/236/Rev.1, para. 90;

    (79) [(79) p.538] See infra, p. 546;

    (80) [(80) p.538] See infra, ad para. 5, p. 539;

    (81) [(81) p.538] See for the discussions of the Committee, O.R. XV, p. 157, CDDH/III/SR.55, para. 14; p. 159, para. 21; p. 165, para. 56; and p. 171, CDDH/III/SR.56, para. 14; p. 177, para. 45; p. 179, para. 55; p. 182, para. 68, and, for the plenary meetings, O.R. VI, p. 128, CDDH/SR.40, para. 52; p. 132, para. 74; and p. 146, CDDH/SR.41, para. 24; p. 151, para. 48, and p. 152, para. 53;

    (82) [(82) p.539] O.R. VI p. 153 CDDH/SR.41, para. 56. The representative of a national liberation movement, considered that the clause that such a combatant would receive the same protection as that accorded to prisoners of war by the Third Convention and the Protocol "[...] should not be regarded as a concession or a favour and that a member of a national liberation movement would be in exactly the same position as a regular combatant so far as these instruments were concerned" (O.R. XV, p. 184, CDDH/III/SR.56, para. 74), and that, consequently, such protection could not be reduced at the captor's will (O.R. VI, p. 148, CDDH/SR.41, para. 32);

    (83) [(83) p.539] See ' Commentary III ', pp. 406-505;

    (84) [(84) p.539] With regard to compliance in general with the rules of international law applicable in armed conflict, see supra, ad paras. 1 and 2, p. 522;

    (85) [(85) p.539] O R. XV p. 403, CDDH/236/Rev. 1, para. 91;

    (86) [(86) p.540] For a discussion of the problem in the context of the events of the Second World War and the breaches of the Hague Regulations, see J.-P. Maunoir, op. cit., pp. 178-182;

    (87) [(87) p.540] The concept of an unprivileged belligerent comes from a conflict of law which was peculiarly characteristic of the Hague system. Articles 1 and 2 of the Regulations clearly defined the conditions with which those who wish to participate in the hostilities should comply to be entitled to the status of belligerent and of prisoner of war in the event of capture. However, the Regulations did not prohibit the population of an invaded country from taking up arms against the occupying forces (see supra, ad Art. 43, p. 510). This resulted in a contradiction which was highlighted in Nuremberg in the Hostages' Trial. It was found that "just as the spy may act lawfully for his country and at the same time be a war criminal to the enemy, so guerillas may render great services to their country and in the event of success, become heroes even, still they remain war criminals in the eyes of the enemy and may be treated as such. In no other way can an army guard and protect itself from the gadfly tactics of such armed resistance." (8 ' Law Reports, ' p. 58, and W.J. Ford, op. cit., December 1967, pp. 630-631). However, the use of the term "war criminal" by the Tribunal was unfortunate in that the persons referred to did not violate the laws of war as such and indeed, as pointed out, rendered their country a great service. They were thus rather ("unpriviledged belligerents" as they were denied the status of prisoner of war. Under the Protocol, this is still the case with regard to spies (Article 46), but the Diplomatic Conference wished to end the situation whereby guerrillas may be acting lawfully and even with the approval of the government and yet be denied prisoner-of-war status. Therefore the definition of combatant is now wide enough to cover all means of assuming a country's legitimate defence and consequently a Party to the conflict may no longer support combat tactics which do not comply with the criteria laid down in Articles 43 and 44;

    (88) [(88) p.541] O.R. XV, p. 403, CDDH/236/Rev.1, para. 92; this refers particularly to those categories listed under Article 4 of this Convention which are not covered by Article 44 under consideration here. However, according to some views at least, this provision can also cover the members of the armed forces under paragraph 1 of the said Article 4A, which would preserve their right to prisoner-of-war status, regardless of the violation they had committed, except for States which have made a reservation in this respect (Third Convention, Article 85);

    (89) [(89) p.541] Article 32 of the Vienna Convention on the Law of Treaties states that recourse may be had to supplementary means of interpretation, including to the ' travaux préparatoires ', when the interpretation in accordance with the general rule (Article 31 of the Convention) leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable. Moreover, one delegation explicitly stated that the definition of combatant given in Article 43 would also cover the ' levée en masse ', and this claim did not give rise to any objection (O.R. XV, p. 161, CDDH/III/SR.55, para. 37). Moreover, the principle ' ut res magis valeat quam pereat ', the "principle of efficacy", could also be invoked;

    (90) [(90) p.542] O.R. XV, p. 160, CDDH/III/SR.55, para. 28. During the First and Second World Wars combatants captured when they were not wearing uniform were considered as "francs-tireurs" and because of this did not have the right to prisoner-of-war status, even if they were members of the armed forces (See A.M. de Zayas, "Combatants", in Bernhard (ed.), op. cit., Instalment 3, 1982, p. 117). However, for pilots whose aircraft had been brought down, see supra ad Art. 42, note 36. The decisive element was found in Article 23(b) of the Hague Regulations;

    (91) [(91) p.542] Supra, ad para. 3, second sentence, letter a), p. 529;

    (92) [(92) p.542] In fact, the list of persons belonging to the armed forces is only of theoretical value in the First and Second Conventions. It does not have an exhaustive character, as might be the case in the Third Convention, and was only included for the sake of precision (see ' Commentary I ', p. 145);