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Commentary - Art. 4. Part I : General provisions
    ARTICLE 4. -- PRISONERS OF WAR

    [p.44]

      A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

      (1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

      (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even of this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

      (a) that of being commanded by a person responsible for his subor-dinates ;


      (b) that of having a fixed distinctive sign recognizable at a distance;
      (c) that of carrying arms openly;
      (d) that of conducting their operations in accordance with the laws and customs of war.

      (3) Members of regular armed forces who profess allegiance to a govern-ment or an authority not recognized by the Detaining Power.

      (4) Person who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

      [p.45](5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

      (6) 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 of war.

      B. The following shall likewise be treated as prisoners of war under the present Convention:

      (1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they jail to comply with a summons made to them with a view to internment.

      (2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the junctions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

      C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.



    [p.45] HISTORICAL AND GENERAL

    In ancient times the concept of "prisoner of war" was unknown. Captives were the "chattels" of their victors who could kill them or reduce them to bondage. Throughout the ages, innumerable captives [p.46] owed humane treatment no doubt to the mercy of their victors. It is a fact, too, that sovereigns or military commanders have been known to ordain that their armies deal humanely with the prisoners who fell into their hands. More than once, philosophical or religious doctrines checked the savagery which prisoners might have been led to expect. The French Revolution, inspired by the idea of the Encyclopedists of the eighteenth century, actually decreed that "prisoners of war are under the safeguard of the Nation and the protection of the laws. Any unwarranted severity, insult, violence or murder committed against prisoners shall be punished according to the same laws and penalties as if such excesses had been committed against French citizens" (1). However, more than a century had to elapse, and the Hague Convention of 1899 (completed and made more explicit by that of 1907) to be reached, before the States were ready to limit their respective sovereign rights concerning the treatment of prisoners of war, and before prisoners were granted their own statute in international law, protecting them from arbitrary treatment by the Detaining Power, and which may also be invoked by them against that Power (2).
    At the 1899 and 1907 Peace Conferences, the lengthiest and most important discussions were centred around the provisions relating to ' belligerent status ' (3). The question is of the utmost significance. Once one is accorded the status of a belligerent, one is bound by the obligations of the laws of war, and entitled to the rights which they confer. [p.47] The most important of these is the right, following capture, to be recognized as a prisoner of war, and to be treated accordingly.
    Delegates to the 1874 Brussels Conference had already expressed divergent opinions (4), and the difference in views had become particularly apparent in regard to the rights of the population of an invaded country. Some delegates laid particular stress on the necessities of war and the interest of the population, and considered that recognition of belligerent status should be made subject to very strict conditions. Others, taking a broader view, thought that it would be sufficient to have rules such as would preclude "banditry" and maintain loyalty during the conflict.
    In 1899 the same discussions took place and the same arguments were presented; but in the end the majority held the view that the Regulations should make provision for as many matters as possible since they contained the instructions to be given to the armed forces and each provision would thus help to limit abuses of power.
    To complement those provisions, the Conference decided -- and this is of the utmost importance -- that all questions which are not expressly covered by the Regulations should be solved in accordance with the rules of the law of nations. This decision was recorded in the Preamble, reading as follows:

    "Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that, in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience;
    They declare that it is in this sense especially that Articles 1 and 2 of the Regulations adopted must be understood."

    In accordance with these principles and with the provisions of Articles 1 and 2 of the 1907 Hague Regulations, those who take up arms are classified in three categories:

    I. ' Belligerents are persons belonging to organized military forces, whether the army or militias and volunteer corps, provided that such militias or volunteer corps fulfil the following conditions: ' [p.48]
    (a) that of being commanded by a person responsible for his
    subordinates (5);
    (b) that of having a fixed distinctive sign recognizable at a
    distance;
    (c) that of carrying arms openly;
    (d) that of conducting their operations in accordance with the laws
    and customs of war.

    The qualification of belligerent is subject to these four conditions being fulfilled.

    II. ' The status of belligerent also applies, in accordance with Article 2 of the Regulations, to inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces. '
    This refers to a mass rising. The enemy is obliged to recognize the belligerent status of the inhabitants when they carry arms openly and respect the laws and customs of war, even though they may not have had time to form themselves into regular armed units as required by Article 1 .

    III. ' The third category includes all those who, whether fighting in organized units or individually, are unable to avail themselves of the provisions of Articles 1 and 2 of the Regulations, and who, in accordance with the Preamble to the Convention, are under the protection and empire of the principles of international law. '
    In particular, this category includes armed units who do not meet the requirements of Article 1 of the Regulations, the inhabitants of a Part of the territory already taken over by the enemy who take up arms to fight against the enemy, as well as persons who, from time to time, participate on their own initiative in war operations and then return to their peaceful pursuits, and lastly, persons who take isolated action in the unoccupied part of the territory in order to be of service to their country (6).
    The Hague Regulations also make provision for non-combatant members of the armed forces; in case of capture, they are entitled to the same treatment as combatants (Article 3 ). This category includes members of the various administrative branches of the armed forces; the services which are explicitly protected by the First Geneva Convention, such as doctors and medical personnel, receive the special treatment to which that Convention entitles them. Lastly, Article 13 of the Regulations refers to individuals who follow an army without [p.49] directly belonging to it, but whom the combatant Powers have the right to detain for reasons of security. All such persons have the right to ' at least ' the same treatment as prisoners of war, provided they can prove that they are attached to an army.
    Contrary to the solution adopted in 1929, the drafters of the 1949 Convention considered, from the outset, that the Convention should specify the categories of protected persons and not merely refer to the Hague Regulations (7).
    Article 4 is in a sense the key to the Convention, since it defines the people entitled to be treated as prisoners of war. It was therefore essential that the text should be explicit and easy to understand. In addition, the experience gained during the Second World War had to be taken into account, and reference made to certain categories of combatants in terms which would leave no room for doubt (8).
    The present Article was discussed at great length during the 1949 Diplomatic Conference and there was unanimous agreement that the categories of persons to whom the Convention is applicable must be defined, in harmony with the Hague Regulations.
    The four conditions which these Regulations impose on militias and corps of volunteers were reproduced and it was made clear that these conditions apply to militias and corps of volunteers not forming part of the regular armed forces, thus solving one of the most difficult questions -- that of "partisans".
    During the preparatory work for the Conference, and even during the Conference itself, two schools of thought were observed. Some delegates considered that partisans should have to fulfil conditions even stricter than those laid down by the Hague Regulations in order to benefit by the provisions of the Convention. On the other hand, other experts or delegates held the view that resistance movements should be given more latitude. The problem was finally solved by the [p.50] assimilation of resistance movements to militias and corps of volunteers "not forming part of the armed forces" of a Party to the conflict. However, contrary to the interpretation generally given to the corresponding provision in the Hague Regulations, it was recognized that such units might operate in occupied territory.
    That was an important innovation which grew out of the experience of the Second World War.

    PARAGRAPH A. -- PERSONS WHO HAVE FALLEN INTO
    THE POWER OF THE ENEMY

    ' Basic principle '

    Under this paragraph recognition as a prisoner of war depends on two essential conditions (9):
    (a) to belong to one of the categories specified in sub-paragraphs
    (1) to (6) of paragraph A;
    (b) to have fallen into the power of the enemy.

    The existence of a state of belligerence is no longer officially in question; the term "enemy" covers any adversary during an "armed conflict which may arise between two or more of the High Contracting Parties" pursuant to the first paragraph of Article 2 (10). The words "fallen into the power of the enemy" replace the word "captured" which appeared in the 1929 Convention, the first expression having a wider significance and also covering the case of soldiers who became prisoners without fighting, for example following a surrender (11). During the Second World War, certain Detaining Powers refused to grant the status of prisoner of war to "surrendered enemy personnel" -- i.e. to members of enemy armed forces who had fallen into their power following a mass capitulation -- on the ground that the signatories of the Conventions of Geneva and The Hague had not considered the possibility of mass surrender. This change in wording is designed to preclude any ambiguity.
    An essential question of interpretation arises in this connection. [p.51] Article 4 is independent from the laws and customs of war as defined in the Hague Conventions, but there was never any question when the Convention was drafted of abrogating the Hague law. In other words, the present Convention is not limited by the Hague Regulations nor does it abrogate them, and cases which are not covered by the text of this Convention are nevertheless protected by the general principles declared in 1907 (12).

    1. ' Sub-paragraph (1) -- Members of the armed forces '

    Here the expression "members of the armed forces" replaces the term "army" used in Article 1 of the Hague Regulations. It refers to all military personnel, whether they belong to the land, sea or air forces, and there is no longer provision for derogations in the case of the two latter branches such as had been provided in Article 1, subparagraph (2) , of the 1929 Convention.
    At the Conference of Government Experts, the question arose as to the advisability of giving a more exact definition of armed forces by stating as in the Hague Regulations that the term covers both combatants and non-combatants. It was finally considered that this fact was usually implicit in any general reference to armed forces, and moreover the matter had raised almost no difficulties during the Second World War. Any attempt at a stricter definition might result in restriction (13).
    It had been proposed that the mention of militias or volunteer corps forming part of the armed forces should be deleted, as these were covered by the expression "armed forces". The Conference of Government Experts pointed out, however, that certain countries still [p.52] had militias and volunteer corps which, although part of the armed forces, were quite distinct from the army as such. The mention of militias and volunteer corps was therefore maintained as it appears in the Hague Regulations, although strictly speaking it was probably not essential.
    The drafters of the 1949 Convention, like those of the Hague Convention, considered that it was unnecessary to specify the sign which members of armed forces should have for purposes of recognition. It is the duty of each State to take steps so that members of its armed forces can be immediately recognized as such and to see to it that they are easily distinguishable from members of the enemy armed forces or from civilians. The Convention does not provide for any reciprocal notification of uniforms or insignia, but merely assumes that such items will be well known and that there can be no room for doubt. If need be, any person to whom the provisions of Article 4 are applicable can prove his status by presenting the identity card provided for in Article 17 .
    This sub-paragraph relates to the armed forces of a Government whose legal status is not contested by the other Party. The case of members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power is referred to under (3) below.

    2. -- ' Sub-paragraph (2) -- Partisans '

    The opening years of the Second World War witnessed immense changes in the political system of Europe. Many countries were occupied, armistices were concluded and alliances reversed. Some Governments ceased to be, others went into exile and yet others were brought to birth. Hence arose an abnormal and chaotic situation in which relations under international law became inextricably confused. In consequence, national groups continued to take an effective part in hostilities although not recognized as belligerents by their enemies, and members of such groups, fighting in more or less disciplined formations in occupied territory or outside their own country, were denied the status of combatant, regarded as "francs-tireurs" and subjected to repressive measures. The International Committee of the Red Cross always made every effort to secure for "partisans" captured by their adversaries the benefit of treatment as prisoners of war, provided of course that they themselves had conformed to the conditions laid down in Article 1 of the Regulations annexed to the Fourth Hague Convention of 1907.
    [p.53] Apart from various applications to individual authorities, on August 17, 1944, the International Committee addressed a Memorandum (14) to all belligerent States. Some of the Governments concerned gave affirmative replies; others made certain reservations and this reaction strengthened all the more the desire of the International Committee of the Red Cross to see a Diplomatic Conference go thoroughly into the matter and reach a solution inspired by the broadest sentiments of humanity (15).

    A. 'Origin of the provision'. - Both during the preparatory work and in the course of the 1949 Diplomatic Conference, the discussions regarding this provision were among the most lively of all and it might well have been that no agreement could have been reached. The Occupying Powers, on the one hand, and the occupied countries, on the other, held conflicting views. The former considered that resistance movements should have to fulfil more numerous conditions than those [p. 54] laid down by the Hague Regulations if they were to benefit by the provisions of the Convention. According to the other view, the recognition of partisans should not be bound by excessively restrictive conditions which might, moreover, result not in damping the ardour of partisans, but in increasing the cruelty and brutality of the fighting.
      At the Conference of Government Experts and at the 1949 Diplomatic Conference, there was unanimous agreement about the necessity Regulations and to have an adequate military organization so as to ensure that those conditions could be fulfilled.
      On the other hand, no agreement could be reached at the Conference of Government Experts with regard to the condition for partisans to gain the effective, albeit temporary, control of a region. It was feared that this condition might be considered effective by the Occupying Power only if large territories were wholly occupied and administered by partisans. In most cases, however, the Occupying Power would gain control of the lines of communication of a given region and would therefore deny that partisans controlled the said area (16). Other delegations nevertheless maintained that control of territory should be a valid criterion, because it was preferable that recognition should depend on conditions which could be verified easily.
      Finally, one delegation proposed that protection under the Convention should be granted to partisans who fulfilled the conditions of the Hague Regulations and on whose behalf their Government or responsible leader had notified the Occupying Power of their opening hostilities. Should this condition fail, the control of a territory could then only be stipulated (17).
      The draft text submitted by the International Committee to the XVIIth International Red Cross Conference, held at Stockholm in 1948, reflected the various tendencies which had emerged at the Conference of Government Experts. This text read as follows:

      Persons belonging to a military organization constituted in an occupied territory with a view to combating the Occupying Power, on condition:

      (a) that this organization has notified its participation in the conflict to the Occupying Power, either through its responsible commander, or through the intermediary of a Party to the conflict, or that it has secured the effective, albeit temporary, control of a determined area;
      (b) that its members are placed under the orders of a responsible commander; that they constantly wear a fixed distinctive emblem, recognizable at a distance; that they carry arms openly; that they act in obedience to [p. 55] the laws and customs of warfare; and in particular that they treat nationals of the Occupying Power who may have fallen into their hands, according to the provisions of the present Convention (18).

      The XVIIth International Red Cross Conference deleted the requirement of territorial control at the end of sub-paragraph (a) of the draft text, and retained the principle of notification "either through its responsible leader, through the Government which it acknowledges or through the mediation of a Party to the conflict".
      At the 1949 Diplomatic Conference, this Article was referred to a Special Committee where it was the subject of much discussion (19). The following joint Anglo-Belgian amendment was eventually proposed:

      (6) Persons belonging to a military organization or to an organized resistance movement constituted in an occupied territory to resist the Occupying Power and which has effective command of its lower formations and units, on condition:
      (a) that the Government or the responsible Authorities which the organization acknowledges have notified the Occupying Power through a means by which they are able to make and reply to communications, of its participation in the conflict and of the distinctive emblem which its members wear;
      (b) that the members of this organization are under the command of a responsible leader; that they wear at all times a fixed distinctive emblem, recognizable at a distance, that they carry arms openly, that they conform to the laws and customs of war, and in particular, that they treat nationals of the Occupying Power who fall into their hands in accordance with the provisions of the present Convention (20).
      Opinion was divided in the Committee between the Stockholm text, which did not require that a resistance movement should be 'organized', and the above draft, and its members could not reach a decision.

      [p.56] The Danish Delegation then proposed the insertion of an additional paragraph in order to extend the status of prisoner of war to civilian persons acting in lawful defence, or participating in the defence of their native land in the event of illegal aggression or occupation (21). The draft amendment also provided that in any case civilians would be assured of the ordinary procedural guarantees and the application of the minimum criteria specified in Article 3. The Special Committee eventually decided that this proposal fell within the scope of the Fourth Convention, relative to civilians. And in view of the analogy between certain provisions of the Danish amendment and the second paragraph of Article 5 below, Committee II finally rejected it (22).
      This discussion had done nothing to reconcile the different views, and at the fourteenth meeting of the Special Committee, eight delegations voted for the Stockholm draft, while four delegations preferred the Anglo-Belgian amendment.
      The Netherlands delegate then proposed, as a compromise solution, that the wording of Article 1 of the Hague Regulations should be used.
      The first sub-paragraph in the Stockholm draft was split up so as to make a distinction between militias and volunteer corps "forming part of the armed forces" (sub-paragraph (1)) and "members of 'other' militias and members of 'other' volunteer corps" (sub-paragraph (2)). This distinction did not exist in the Stockholm draft, which simply mentioned in the first sub-paragraph "militias and volunteer corps which are regularly constituted". The new text thus corresponded to that in the Hague Regulations, since the conditions specified in (a), (b), (c), (d), were identical. It was considered that there was sufficient guarantee of the internal organization of such militias and volunteer corps, and the reference included in the Anglo-Belgian amendment to effective command of lower formations and units was therefore dropped. The principle of notification, which appeared in the Stockholm draft and, even more categorically, in the Anglo-Belgian amendment, was also deleted and was replaced by the requirement that such militias and volunteer corps should belong to a Party to the conflict. This was found acceptable by the authors of the Anglo-Belgian amendment (23).
      B.- 'The contents of the provision'. - As we have seen, in the absence of any possible agreement on a provision to be applicable only to [p.57] resistance movements operating in occupied territory, the delegates to the 1949 Conference reverted, at the suggestion of the Netherlands Delegation, to the principle stated in Article 1 of the 1907 Hague Regulations, which made a distinction between militias and volunteer corps forming part of the army and those which are independent.
      The latter category, which includes organized resistance movements, is entitled to benefit by the Convention provided, of course, the general implementing conditions (Article 2) are fulfilled. Resistance movements must be fighting on behalf of a "Party to the conflict" in the sense of Article 2, otherwise the provisions of Article 3 relating to non-international conflicts are applicable, since such militias and volunteer corps are not entitled to style themselves a "Party to the conflict".
      International law has advanced considerably concerning the manner in which this relationship shall be established. The drafters of earlier instruments were unanimous in including the requirement of express authorization by the sovereign, usually in writing, and this was still the case at the time of the Franco-German war of 1870-1871. Since the Hague Conferences, however, this condition is no longer considered essential. It is essential that there should be a 'de facto' relationship between the resistance organization and the party to international law which is in a state of war, but the existence of this relationship is sufficient. It may find expression merely by tacit agreement, if the operations are such as to indicate clearly for which side the resistance organization is fighting (24). But affiliation with a Party to the conflict may also follow an official declaration, for instance by a Government in exile, confirmed by official recognition by the High Command of the forces which are at war with the Occupying Power (25). These different cases are based on the experience of the Second World War, and the authors of the Convention wished to make specific provision to cover them (26).
      In our view, the stipulation that organized resistance movements and members of other militias and members of other volunteer corps which are independent of the regular armed forces must belong to a Party to the conflict, refutes the contention of certain authors who [p.58] have commented on the Convention that this provision amounts to a 'ius insurrectionis' for the inhabitants of an occupied territory (27). In fact, as we have seen, the intention of the authors, and the final solution adopted, was to return to the concept of the Hague Regulations. It is true that the phrase "organized resistance movements" was added to "militias" and "volunteer corps". The Conference of Government Experts had generally agreed that the first condition preliminary to granting prisoner-of-war status to partisans was their forming a body having a military organization. The implication was that such an organization must have the principal characteristics generally found in armed forces throughout the world, particularly in regard to discipline, hierarchy, responsibility and honour. In the view of the experts, this stipulation should provide an additional guarantee that the conflict between partisans and occupying forces was an open and loyal one. One may wounder whether the expression "organized resistance movements" is specific enough. One may also feel that the term "resistance" covers not only open conflict against the Occupying Power, but also other forms of opposition to the latter (28). No amendment was made to this wording, however, which constitutes a clear reference to the events of the Second World War and to the resistance movements which were active during that conflict. Moreover, the structure and internal organization of those movements were perhaps stronger than those usually expected of independent militias and volunteer corps. There has therefore been no substantial modification of the Hague Regulations and in fact the four conditions contained in sub-paragraphs (a) to (d) are identical with those stated in the Regulations.
      Such militias and volunteer corps are protected by the Convention when operating "in or outside their own territory, even if this territory is occupied". They can thus operate over the whole of the enemy territory including the corresponding air space and the territorial waters and, of course, on the high seas; some authors even consider that their activity may extend over the whole territory under enemy control. With regard to the territory in which resistance organizations are set up, the provision is very flexible ("their own territory, even if this territory is occupied"). This latter phrase is of very great importance and provides an explicit guarantee to resistance movements such as those which grew up during the Second World War. The fact [p.59] that this constitutes a break away from the traditional rules of The Hague has been commented upon by several authors (29). Under those rules it was generally considered that in practice partisans could only be recognized during the period of invasion. Once the enemy territory was occupied, its population had to respect the measures taken by the occupant in order to restore and ensure public order and safety (pursuant to Article 43 of the Hague Regulations). The sanctions which the occupant might impose included the death penalty, without any special consideration in the case of partisans whose organization was in conformity with Article 1 of the Regulations.
      This is no longer the case. Under the present provision, it is incumbent upon the occupant to treat as prisoners of war all captured members of organized resistance movements operating in occupied territory, in accordance with the stated principles, and to apply the Convention to them 'in toto'. This is undoubtedly a very important concession to resistance movements such as those which existed during the Second World War.
      As we have said already, if resistance movements are to benefit by the Convention, they must respect the four special conditions contained in sub-paragraphs (a) to (d) which are identical to those stated in Article 1 of the Hague Regulations.

      '(a) that of being commanded by a person responsible for his subordinates': in fact, during the Second World War, resistance movements were usually commanded by regular officers of the armed forces, but that is not a requirement and the leader may be either civilian or military. He is responsible for action taken on his orders as well as for action which he was unable to prevent. His competence must be considered in the same way as that of a military commander. Respect for this rule is moreover in itself a guarantee of the discipline which must prevail in volunteer corps and should therefore provide reasonable assurance that the other conditions referred to below will be observed.

      '(b) that of having a fixed distinctive sign recognizable at a distance' (30): for partisans a distinctive sign replaces a uniform; it is therefore an essential factor of loyalty in the struggle and must be worn constantly, in all circumstances. During the Second World War, this rule was not always respected by the resistance organizations but there should be no room for doubt on this matter. The Conference of Government Experts proposed that partisans should be required to "habitually [p.60] and constantly display a fixed distinctive sign recognizable at a distance" (31). This proposal was not adopted by the 1949 Diplomatic Conference, which preferred merely to use the terminology of the Hague Regulations without in any way wishing to set aside this interpretation of the term "fixed" (32), which moreover coincided with the intention of the drafters of the Regulations.
    If it is to be distinctive, the sign must be the same for all the members of any one resistance organization, and must be used only by that organization. This in no way precludes the wearing of additional emblems indicating rank or special functions.
    The International Committee of the Red Cross was anxious that the matter should be regulated as satisfactorily as possible and had gone so far as to propose to the Conference of Government Experts that the nature of the sign should be specified in a conventional text, as well as its size and the manner in which it should be worn (for instance, a green arm-band with national emblem, 10 cm. wide, worn on the left arm). The matter might be settled by a special agreement under Article 6 . This suggestion was not adopted, however. Consequently, the term "recognizable at a distance" is open to interpretation. In our view, "the distinctive sign should be recognizable by a person at a distance not too great to permit a uniform to be recognized" (33). Such a sign need not necessarily be an arm-band. It may be a cap (although this may frequently be taken off and does not seem fully adequate), a coat, a shirt, an emblem or a coloured sign worn on the chest. If the partisans are on board a vehicle or an engine of war, tank, aeroplane or boat, the distinctive sign must of course be shown on the vehicle concerned. This is in line with the long-established regulations of international law regarding the flag in the case of war at sea.
    Lastly, there is no requirement that the distinctive sign must be notified, as several delegations to the 1949 Diplomatic Conference would have wished. It is nevertheless open to the interested parties to make such a notification through the International Committee, in the same way as the Committee offered its services in its Memorandum of August 17, 1944, referred to above (34). Such a notification may also be made through the Protecting Power of the Party to the conflict to which the resistance organization is affiliated. Titles and ranks may also be communicated in this way, as provided in Article 43 .

    [p.61] ' (c) that of carrying arms openly: ' although the difference may seem slight, there must be no confusion between carrying arms "openly" and carrying them "visibly" or "ostensibly". Surprise is a factor in any war operation, whether or not involving regular troops. This provision is intended to guarantee the loyalty of the fighting, it is not an attempt to prescribe that a hand-grenade or a revolver must be carried at belt or shoulder rather than in a pocket or under a coat.
    The enemy must be able to recognize partisans as combatants in the same way as members of regular armed forces, whatever their weapons. Thus, a civilian could not enter a military post on a false pretext and then open fire, having taken unfair advantage of his adversaries.

    ' (d) that of conducting their operations in accordance with the laws and customs of war: ' this is, of course, an essential provision which embraces those just listed above. It is obvious, however, that the concept of the laws and customs of war is rather vague and subject to variation as the forms of war evolve, The Stockholm draft therefore attempted to clarify the intention of the Parties on at least one point by including the express obligation for partisans to "treat nationals of the Occupying Power who fall into their hands in accordance with the provisions of the present Convention".
    This provision was deleted by the drafters of the Convention, who did not wish to depart from the terms of the Hague Regulations. Partisans are nevertheless required to respect the Geneva Conventions to the fullest extent possible. In particular, they must conform to international agreements such as those which prohibit the use of certain weapons (gas). In all their operations, they must be guided by the moral criteria which, in the absence of written provisions, must direct the conscience of man; in launching attacks, they must not cause violence and suffering disproportionate to the military result which they may reasonably hope to achieve. They may not attack civilians or disarmed persons and must, in all their operations, respect the principles of honour and loyalty as they expect their enemies to do.

    3. ' Sub-paragraph (3) -- Members of regular armed forces who profess
    allegiance to an authority not recognized by the Detaining Power '

    During the Second World War, certain States refused to recognize as belligerents combatant units which professed allegiance to a Government or authority which these States did not recognize. A case in point was that of the French followers of General de Gaulle, as well [p.62] as that of Italian troops who fought against the German forces in Southern Italy from September 1943 onwards.
    The Franco-German armistice of 1940 stipulated that French nationals who continued to bear arms against Germany would not enjoy the protection of the laws of war (35). In fact, following representations by the International Committee of the Red Cross, General de Gaulle's troops were treated as prisoners of war, and the German authorities informed the International Committee that they would not apply to those French combatants the provisions of the armistice. But representations on behalf of Italian troops who were in a similar situation at the end of 1943 remained unanswered (36).
    At the Conference of Government Experts, delegations immediately approved the International Committee's proposal for a special clause to cover "members of armed forces claiming to be under an authority not recognized by the enemy" (37). It was feared, however, that the proposal might be open to abusive interpretation, and the Conference therefore decided to add that such forces must, in order to benefit by the Convention, be fighting "in conjunction" with a State recognized as a belligerent State by the enemy. This clause was deleted at Stockholm, and was subsequently amended by the Special Committee of Committee II at the 1949 Diplomatic Conference, which considered it preferable to insert the stipulations mentioned in paragraph 2 (a), (b), (c) and (d) above (38). Other proposals included one for the deletion of the provision, and another for the reinstatement of the Stockholm draft. The latter suggestion was eventually approved (39).
    This provision must be interpreted, in the first place, in the light of the actual case which motivated its drafting -- that of the forces of General de Gaulle which were under the authority of the French National Liberation Committee.
    The expression "members of regular armed forces" denotes armed forces which differ from those referred to in sub-paragraph (1) of this paragraph in one respect only: the authority to which they profess allegiance is not recognized by the adversary as a Party to the [p.63] conflict. These "regular armed forces" have all the material characteristics and all the attributes of armed forces in the sense of sub-paragraph (1): they wear uniform, they have an organized hierarchy and they know and respect the laws and customs of war. The delegates to the 1949 Diplomatic Conference were therefore fully justified in considering that there was no need to specify for such armed forces the requirements stated in sub-paragraph (2) (a), (b), (c) and (d).
    The distinguishing feature of such armed forces is simply the fact that in the view of their adversary, they are not operating or are no longer operating under the direct authority of a Party to the conflict in accordance with Article 2 of the Convention.
    One solution in order to bring these armed forces ' legally ' within the scope of the Convention was to associate them with a belligerent fighting against the Power concerned. During the Second World War, the German authorities accepted this solution and stated that they would consider the Free French Forces to be "fighting for England". The Conference of Government Experts also supported this solution (40).
    Another procedure which was proposed by the International Committee of the Red Cross, was that such forces should be recognized provided that they were ' constituted ' in a regular manner "irrespective of the Government or authority under whose orders they might claim to be" (41). In order to preclude any abusive interpretation which might have led to the formation of armed bands such as the "Great Companies" of baneful memory (42), the drafters of the 1949 Convention specified that such armed forces must "profess allegiance to a Government or authority not recognized by the Detaining Power". It is not expressly stated that this Government or authority must, as a minimum requirement, be recognized by third States, but this condition is consistent with the spirit of the provision, which was founded on the specific case of the forces of General de Gaulle.
    It is also necessary that this authority, which is not recognized by the adversary, should either consider itself as representing one of the High Contracting Parties, or declare that it accepts the obligations stipulated in the Convention and wishes to apply them.
    The present provision naturally covers armed forces which continue operations under the orders of a Government in exile which is not recognized by the adversary, but has been given hospitality by another State. In our view, it also covers armed forces which continue to fight [p.64] in a "national redoubt", under the orders of an authority or Government which has its headquarters in that part of the country while the occupying authorities may have recognized a Government, which may or may not support them, in that part of the country occupied by their troops. It is of little consequence whether or not another State is engaged in the same struggle as these "regular armed forces". As we have seen, the authors of the Convention deliberately dropped the requirement that such armed forces should be fighting in conjunction with a State recognized as a regular belligerent.

    4. ' Sub-paragraph (4) -- Persons who accompany the armed forces
    without actually being members thereof '

    This provision is an up-to-date version of Article 81 of the 1929 Convention , which in turn was based on Article 13 of the Hague Regulations .
    The Conference of Government Experts considered that the text of Article 81 of the 1929 Convention had become obsolete (in particular the word "sutlers" is no longer appropriate) and should include a reference to certain other classes of persons who were more or less part of the armed forces and whose position when captured had given rise to difficulties during the Second World War.
    The list given is only by way of indication, however (43), and the text could therefore cover other categories of persons or services who might be called upon, in similar conditions, to follow the armed forces during any future conflict.
    The Government Experts, like the drafters of Article 81 of the 1929 Convention, considered it preferable to maintain the system whereby prisoner-of-war status is granted only to persons holding identity cards, even if some prisoners (as in the Second World War) were deprived of this status owing to the loss of their cards (44). The text submitted to the Stockholm Conference referred to this condition in categorical terms: "Persons who follow the armed forces... on condition that they are bearers of an identity card..." (45). We believe that the 1949 Diplomatic Conference was well founded in not accepting this wording. The Conference considered that the capacity in which [p.65] the person was serving should be a determining factor; the possession of a card is not therefore an indispensable condition of the right to be treated as a prisoner of war, but a supplementary safeguard (46).
    After some discussion, the Stockholm draft which, in the case of persons accompanying the armed forces, made possession of an identity card an absolute condition of the right to be treated as a prisoner of war, was modified and the resulting text included in the Convention is more flexible (47).
    The application of this provision is therefore dependent on authorization to accompany the armed forces, and the identity card merely serves as proof. The identity card corresponds virtually to a soldier's uniform or a partisan's arm-band; in case of doubt, the question must be settled pursuant to Article 5, paragraph 2 , hereafter (48).

    5. ' Sub-paragraph (5) -- Members of crews of the merchant marine
    and the crews of civil aircraft '

    In the past, it was generally recognized that in time of war merchant seamen were liable to capture. This view subsequently changed and the XIth Hague Convention of 1907 made provision to the contrary in Article 6 , which specified that merchant seamen "are not made prisoners of war, on condition that they make a formal promise in writing not to take, while hostilities last, any service connected with the operations of the war".
    Maritime warfare as practised during the First World War made these stipulations obsolete. Merchant seamen, though not intended to take an active part in hostilities, were nevertheless armed and might take part in offensive operations (49).
    Even so, when the Diplomatic Conference of Geneva drew up the 1929 Prisoners of War Convention, it was not inclined to sanction this practice; it preferred to adhere to the Hague Regulations and to omit any reference to the capture of merchant seamen. During the Second World War, however, the merchant marine was exposed to [p.66] the same practices as in the First World War (50). Captured merchant seamen were treated sometimes as prisoners of war and sometimes as civilian internees, but they received no pay and were not compelled to work. This unsatisfactory situation obviously had to be remedied and the Conference of Government Experts was unanimous in pro posing that they should qualify for the status of prisoner of war (51). This proposal was finally accepted by the 1949 Diplomatic Conference, but not without some difficulty (52).
    The term "members of crews" covers only members of the merchant marine who have mustered on a ship, but not those who, after completing their time of service, are on board ship as passengers and still less those who are on leave, for instance in their homes (53). Fishermen are excluded, since Article 3 of the XIth Hague Convention, 1907, stipulates that fishing boats cannot be captured (54).
    In some countries, pilots and apprentices (55) are not members of merchant marine crews; the 1949 Convention therefore makes specific reference to them, as was not the case in the Stockholm text (56).
    Lastly, the phrase "who do not benefit by more favourable treatment under any other provisions of international law" is a reference to Article 6 of the XIth Hague Convention which, as we have seen, provides that merchant seamen may not be made prisoners of War (57).

    [p.67] 6. ' Sub-paragraph (6) -- Mass levies '

    Although the situation to which Article 2 of the Hague Regulations refers almost never occurred during the Second World War (58), the stipulation was kept and was inserted with appropriate slight changes in the present Article 4.
    At the 1949 Diplomatic Conference, some delegations proposed certain amendments to the text in order to broaden its scope, but other delegations were strongly opposed to any deviation from the Hague rules (59).
    This provision has therefore the traditional significance of Article 2 of the 1907 Regulations . According to those rules, it is not necessary for the inhabitants who take up arms to have been surprised by invasion; sub-paragraph (6) is also applicable to inhabitants who have been warned, provided they did not have sufficient time to organize themselves in accordance with sub-paragraphs (1) and (2) above. The provision is also applicable to populations which act in response to an order by their Government, given over the wireless, for instance (60).
    Two of the requirements of sub-paragraph (2), applicable to organized resistance movements, are not specified in this sub-paragraph, which covers the special case of inhabitants of a territory who have not had time to organize themselves. These conditions are that of being commanded by a person responsible for his subordinates and that of having a distinctive sign.
    In the absence of any distinctive sign, the requirement of carrying arms "openly" is of special significance and has a more precise implication than in sub-paragraph (2) above; this requirement is in the interest of combatants themselves who must be recognizable in order to qualify for treatment as prisoners of war. They must therefore carry arms visibly (61).
    The provision is not applicable to inhabitants of a territory who take to the "maquis", but only to mass movements which face the invading forces. With the arms available today, the case is not likely [p.68] to arise in the open countryside, but it is more probable in a built-up area where even rudimentary methods are of some value.
    It should, however, be emphasized that a mass levy can only be considered to exist during a very short period, i.e. during the actual invasion period. If resistance continues, the authority commanding the inhabitants who have taken up arms, or the authority to which they profess allegiance, must either replace them by sending regular units, or must incorporate them in its regular forces, Otherwise, the mass levy could not survive the total occupation of the territory which it has tried in vain to defend.

    PARAGRAPH B. -- MILITARY PERSONNEL IN OCCUPIED TERRITORY
    AND MILITARY PERSONNEL INTERNED IN A NEUTRAL COUNTRY

    1. ' Sub-paragraph (1) -- Military personnel in occupied territory '

    This provision makes the Convention applicable to a category of persons which was hitherto not specifically included in the conventional law of nations -- demobilized military personnel in occupied territory who are arrested by the Occupying Power because of their service in the armed forces of the occupied State.
    During the Second World War, the Occupying Power, for security reasons, frequently arrested demobilized military personnel in occupied territory, especially officers. These men were granted prisoner-of-war status but usually only after repeated representations by the International Committee of the Red Cross and the Governments concerned. In the report which the International Committee prepared for the Government Experts, it therefore proposed that the entitlement of such persons to prisoner-of-war status should be explicitly mentioned and the Conference supported this suggestion (62).
    This provision supplements Articles 42 to 56 of the 1907 Hague Regulations; its application is subject to the condition that hostilities continue outside the territory occupied by the enemy Power, either against the State of which the military personnel concerned are nationals, or against the allies of that State.
    Two possible cases are envisaged: military personnel who are re-captured after trying to rejoin the active forces, and those who do not obey an internment order. In fact, the two cases were linked by [p.69] the Stockholm Conference in Article 92 of the Convention, which provides that prisoners of war who attempt to escape shall be liable only to disciplinary punishment. During the Second World War, however, many demobilized members of the armed forces who were resident in occupied territory were shot without proper trial for having tried to rejoin their former comrades. Moreover, demobilized military personnel who refused to obey an internment order were punished more severely than prisoners of war captured in attempting to escape (63). The application of Article 92 (unsuccessful escape) to these categories of military personnel was only a partial solution to the problem and for that reason the 1949 Diplomatic Conference preferred the more general wording of the present provision (64). In fact, as one delegate to the Conference pointed out, the question relates to the proper status of an army demobilized by the Occupying Power, while a portion of those same armed forces continue the struggle. It is logical to treat its members as civilians until such time as they are recalled in order to be interned; but from that moment, it is equally logical to treat them as prisoners of war.
    Any breach of parole will be judged by the Occupying Power, pursuant to Article 21, paragraph 3 . Any attempt to rejoin the armed forces to which the prisoner of war belongs must be considered as an attempt to escape, to which Articles 91 to 93 are applicable. Refusal to obey an internment order must not be judged more harshly than an attempt to escape.

    2. ' Sub-paragraph (2) -- Military internees
    in neutral countries '

    A. ' History of the provision. ' -- Prior to the 1949 Geneva Convention, the situation of military internees in neutral countries was governed only by Articles 11 and 12 (65) of the Vth Hague Convention of 1907 concerning the rights and duties of neutral Powers and persons in war on land, and also by Article 77 of the 1929 Geneva Convention relative to the Treatment of Prisoners of War. The latter provision requires neutral Powers to institute an official bureau to give information about the prisoners of war in their territory.
    [p.70] Although the matter did not on the whole give rise to difficulties during the last war, the Conference of Government Experts considered, as proposed by the International Committee of the Red Cross, that it should be specified that military internees in neutral or non-belligerent countries should enjoy the advantages resulting from the Convention, subject to such derogations as might be justified by the fact that those countries were not adversaries as far as the internees were concerned (66). The International Committee prepared a draft in accordance with this recommendation; this draft, which was accepted by the XVIIth International Red Cross Conference, provided that special agreements should be concluded on certain matters such as the rôle of the Protecting Power, free medical care, the financial resources of internees, and penal and disciplinary sanctions (67).
    At the 1949 Diplomatic Conference, an amendment was proposed, stating that the penal and disciplinary system specified in the Convention should apply to internees, and defining the functions of the Protecting Power. This amendment was adopted by the Conference (68). In a plenary meeting, one delegation suggested that the Power on which internees depend should act as a Protecting Power only if it had diplomatic relations with the neutral State (69). There was a long discussion concerning a situation in which there were no such diplomatic relations (70). Eventually, the Conference approved the amendments proposed, out the final wording of the provision does not seem to cover the case completely.

    B. ' Scope of the provision '

    (a) ' First sentence -- General scope of the obligation. ' The obligation to treat as prisoners of war persons interned in a neutral country constitutes only a minimum standard of treatment. In fact, military internees are as a rule better off in a neutral country than in enemy territory and moreover, certain provisions concerning them are already [p.71] contained in international law. The Vth Hague Convention refers to the maintenance of internees and Article 12 of that Convention provides that "in the absence of a special Convention", the neutral Power shall supply the interned with the food, clothing and relief required by humanitarian considerations and that at the conclusion of peace the expenses caused by the internment shall be made good.

    (b) ' Second sentence -- Responsibility in the diplomatic field. ' This sentence provides that where diplomatic relations exist between a neutral Power and the Parties to the conflict, the diplomatic personnel of the latter shall be allowed to perform towards internees "the function of a Protecting Power as provided in the present Convention". At first sight, the text is perfectly clear; nevertheless, it is inconsistent with the first sentence of the paragraph, providing for the application of Articles 8 , 10 and 126 , which are the principal provisions relating to the functions of Protecting Powers. Does this sentence authorize diplomatic personnel to exercise the functions specified in Articles 8 , 10 and 126 , or, on the contrary, are they prevented from doing so, on the assumption that the exception stated in the first sentence is valid here also? In our view the second interpretation should be adopted. As far as the internees are concerned, a neutral State is not an enemy State and the reasons which justify neutral protection for prisoners of war in the hands of the enemy no longer apply in the case of internees in a neutral country. One may consider that this is why, in the first sentence of the paragraph, the drafters of the Convention excepted Articles 8 , 10 and 126 , which in particular give the Protecting Power the right of scrutiny. That being so, it is unlikely that the drafters of the Convention, having in the first sentence of the paragraph precluded any intervention by a third State in order to inspect the conditions of internment, would on the other hand have intended in the second sentence of the same paragraph to vest such right of scrutiny in the Power on which the Internees depend.
    In conclusion, we believe that the phrase "functions of a Protecting Power as provided in the present Convention" includes all the provisions relating to the functions of the Protecting Power with the exception of Articles 8 , 10 and 126 .
    If the functions provided in Articles 8 , 10 and 126 are excluded, there remain a large number of functions to be exercised by the diplomatic staff, some of which are of very great importance (71). But [p.72] although the Convention is expressly intended to safeguard the exercise of these functions, since it entrusts them to the diplomatic services of the country of origin of the internees, it does not say who shall exercise them in the event that no diplomatic relations exist between that State and the interning State. As a first solution, the case might be covered by special agreements concluded pursuant to Article 6 , but it seems superfluous to have recourse to this provision. The neutral State appointed as a Protecting Power will automatically extend its functions to the neutral country in which the internees are held. If this were not possible, i.e. if the Protecting Power had no representative in the neutral country concerned, it would be for the latter, according to the spirit of Article 10 , to find a substitute for a Protecting Power, chosen for instance from among the impartial humanitarian organizations.
    One reservation must be made under this heading; as we have said, Article 126 does Hot seem applicable, but the fourth paragraph of this Article provides that, in certain circumstances, the International Committee of the Red Cross shall enjoy the same prerogatives as the Protecting Powers. It would, however, in our view, be abusive to conclude from this that the delegates of the International Committee could not perform their duties in behalf of military internees held on the territory of neutral or non-belligerent Powers. The "golden rule", contained in Article 9 states: "The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of prisoners of war and for their relief". One should also remember the ratio legis of the present provision. The only reason why the Protecting Power cannot intervene is the fact that the internees are not in enemy hands, but it was not the intention of the drafters of this text to prevent any humanitarian intervention by the Red Cross in behalf of internees.

    PARAGRAPH C. -- RESERVATION CONCERNING THE STATUS
    OF MEDICAL PERSONNEL AND CHAPLAINS

    This provision was submitted to a plenary meeting of the Diplomatic Conference at the request of the Drafting Committee (72). It was necessary, in order to prevent any contradiction between Article 4 [p.73] and Article 33 , which states in the first paragraph that "membersof the medical personnel and chaplains while retained by the Detaining Power with a view to assisting prisoners of war, shall not be considered as prisoners of war".


    * (1) [(1) p.46] Decree of May 4 and June 20, 1792 (Art. I and
    II);

    (2) [(2) p.46] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War (September 1, 1939-June 30, 1947), ' Vol. I, General
    Activities, Geneva, May 1948, p. 216; see also Henri
    COURSIER, ' Etudes sur la formation du droit
    humanitaire, ' Geneva, 1952, pp. 55-59;

    (3) [(3) p.46] The first three Articles of the 1907
    Regulations read as follows:
    "' Article 1: ' The laws, rights and duties of war
    apply not only to armies, but also to militia and
    volunteer corps fulfilling the following conditions:
    (1) To be commanded by a person responsible for his
    subordinates;
    (2) To have a fixed distinctive emblem recognizable
    at a distance;
    (3) To carry arms openly; and
    (4) To conduct their operations in accordance with
    the laws and customs of war.
    "In countries where militia or volunteer corps
    constitute the army, or form part of it, they are included
    under the denomination "army".
    "' Article 2: ' The inhabitants of a territory which
    has not been occupied, who, on the approach of the enemy,
    spontaneously take up arms to resist the invading troops
    without having had time to organize themselves in
    accordance with Article 1, shall be regarded as
    belligerents if they carry arms openly and if they respect
    the laws and customs of war.
    "' Article 3: ' The armed forces of the belligerent
    parties may consist of combatants and non-combatants. In
    the case of capture by the enemy, both have a right to be
    treated as prisoners of war.";

    (4) [(1) p.47] The Hague Convention concerning the laws and
    customs of war on land owes its existence to the Russian
    Tsar Alexander II; on his orders, in 1874, the Russian
    Minister for Foreign Affairs submitted to the European
    Governments a "Draft International Convention on the Laws
    and Customs of War", which was examined at the Brussels
    Conference. This Conference in turn drew up a "Draft
    International Declaration" containing numerous rules
    governing relations between the belligerent armies and
    with the population of occupied territory. Although this
    draft was never ratified by the Governments, it was the
    first international instrument specifying the customs of
    war, and twenty-five years later it was taken as a basis
    for the discussions at the first Peace Conference;

    (5) [(1) p.48] See Albert MECHELYNCK, ' La Convention de La
    Haye concernant les lois et coutumes de la guerre sur
    terre, ' Ghent, 1915, p. 119;

    (6) [(2) p.48] Ibid., pp. 120-121;

    (7) [(1) p.49] See ' Report on the Work of the Conference of
    Government Experts, ' pp. 103-104;

    (8) [(2) p.49] The authors of the 1929 Convention, on the
    other hand, had referred to the Hague Regulations. Article
    1 of that Convention reads as follows:
    "The present Convention shall apply without prejudice
    to the stipulations of Part VII:
    (1) to all persons referred to in Articles 1, 2 and 3
    of the Regulations annexed to The Hague Convention of the
    18th October, 1907, concerning the Laws and Customs of War
    on Land, who are captured by the enemy;
    (2) to all persons belonging to the armed forces of
    belligerents who are captured by the enemy in the course
    of operations of maritime or aerial war, subject to such
    exceptions (derogations) as the conditions of such capture
    render inevitable. Nevertheless these exceptions shall not
    infringe the fundamental principles of the present
    Convention; they shall cease from the moment when the
    captured persons shall have reached a prisoners-of-war
    camp.";

    (9) [(1) p.50] Paragraph B, which will be commented upon
    later, indicates other categories of persons who are also
    to be treated as prisoners of war;

    (10) [(2) p.50] See above, pp. 22-23;

    (11) [(3) p.50] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-A, p. 237. This terminology
    was also used in the other provisions of the Convention
    where this concept had to be expressed. (See in particular
    Article 5, paragraph 1, Article 69, Article 78, paragraph
    1, Article 87, paragraph 2, Article 122, paragraph 1);

    (12) [(1) p.51] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-B, pp. 267-268. The list of
    circumstances which may accord the status of prisoner of
    war is not necessarily exhaustive and there is no reason
    to conclude that persons not in any of the categories
    listed in the Article cannot be considered as prisoners of
    war. Such persons might be outside the provisions of the
    Convention but are not to be excluded from the law of
    nations in general. Their situation would be considered in
    accordance with those principles and would remain "under
    the protection and empire of the principles of
    international law, as they result from the usages
    established between civilized nations, from the laws of
    humanity, and the requirements of the public conscience".
    This is, in fact, expressely provided for in the present
    Convention in Article 142, paragraph 4, concerning
    denunciation by a Contracting Party. Furthermore, the
    Convention contains a safety clause for the benefit of
    persons not covered by the present Convention, in Article
    3 above, which grants definite guarantees, although much
    more limited in nature, in the case of a non-international
    conflict;

    (13) [(2) p.51] See ' Report on the Work of the Conference of
    Government Experts, ' p. 106;

    (14) [(1) p.53] This Memorandum read as follows:
    "Certain aspects of the present struggle have induced
    the International Committee to envisage the consequences
    of acts of war committed by or against combatant
    formations whom their adversaries have not recognized as
    belligerents, but regard as partisans. The Committee are
    of opinion that when, in the course of war, situations
    arise analogous to those of war, but not explicitly
    covered by international Conventions, the fundamental
    principles of international law and of humanity should
    nevertheless be regarded as applicable.
    The International Committee have always devoted
    especial attention to the treatment of prisoners of war,
    and are of opinion that all combatants, without regard to
    the authority to whom they belong, should enjoy the
    benefit of the provisions applicable to prisoners of war,
    if they fall into enemy hands. But this benefit must be
    conditional on conformity on their part to the laws and
    usages of war, especially the following:
    (1) They must be commanded by a person responsible
    for his subordinates,
    (2) They must carry a distinctive badge, and
    (3) They must bear arms openly.
    The International Committee also attach especial
    importance to securing universal respect for the
    principles of the Geneva Convention for the Amelioration
    of the Condition of the Wounded and Sick in Armed Forces
    in the Field, and to enabling auxiliary Red Cross
    organizations to discharge their functions for the benefit
    of all sick and wounded alike, without discrimination.
    The International Committee are of opinion that the
    principles stated must be applied, irrespective of all
    juridical arguments as to the recognition of the
    belligerent status of the authority to whom the combatants
    concerned belong.
    In view of the situation hereinafter described, the
    International Committee, as always when armed forces are
    in conflict, are ready to serve as impartial
    intermediaries. In particular, they are ready to forward
    distinctive badges and notify the wearing of such emblems
    by combatants not in uniform, as soon as it receives such
    information from either party for communication to the
    other.";

    (15) [(2) p.53] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, pp. 517-519; see also, for particular steps
    and representations by the International Committee of the
    Red Cross, ibid., pp. 519-535;

    (16) [(1) p.54] See ' Report on the Work of the Conference of
    Government Experts, ' p. 109;

    (17) [(2) p.54] Ibid., p. 110;

    (18) [(1) p.55] See ' XVIIth International Red Cross
    Conference, Draft Revised or New Conventions for the
    Protection of War Victims, ' p. 53;

    (19) [(2) p.55] Committee II decided at its sixth meeting, on
    May 2, 1949, to appoint a Special Committee to examine
    points of substance which had arisen in connection with
    the following Articles: 4, 12, 28, 34, 50, 52, 58, 59, 60,
    62, 63, 64, 65, 66, 67, 71, 84, 115, 118, 119, 125, as
    well as the United Kingdom amendment to Article 16 and the
    Austrian amendment to Article 119.
    The delegations of the following countries were
    members of the Committee: Australia, Belgium, Canada,
    Denmark, Finland, France, Greece, Hungary, India, Israel,
    Italy, Netherlands, Spain, Switzerland, Ukrainian Soviet
    Socialist Republic, Union of Soviet Socialist Republics,
    United Kingdom and United States of America. A
    representative of the International Committee of the Red
    Cross took part in the debates in an expert capacity.
    (' Final Record of the Diplomatic Conference of Geneva of
    1949, ' Vol. II-A, p. 413.);

    (20) [(3) p.55] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. III. pp. 58 and 62, Nos. 84 and
    92;

    (21) [(1) p.56] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. III, pp. 58-59;

    (22) [(2) p.56] For the discussion, see ' Final Record of the
    Diplomatic Conference of Geneva of 1949, ' Vol. II-A, pp.
    425-426 and 434-435;

    (23) [(3) p.56] A text was finally adopted at the twenty-sixth
    meeting of the Special Committee. See ' Final Record of
    the Diplomatic Conference of Geneva of 1949, ' Vol. II-A,
    pp. 466-467, 478-479; Vol. II-B, p. 342;

    (24) [(1) p.57] It may be indicated by deliveries of equipment
    and supplies, as was frequently the case during the Second
    World War, between the Allies and the resistance networks
    operating in occupied territories;

    (25) [(2) p.57] See Declaration by General Eisenhower of July
    15, 1944, recognizing the French Forces of the Interior
    and taking them under his command;

    (26) [(3) p.57] See in this connection, Jürg H. SCHMID, ' Die
    völkerrechtliche Stellung der Partisanen im Kriege,
    Zürcher Studien zum Internationalen Recht, '
    Polygraphischer Verlag A.G., Zürich 1956, pp. 109-112 and
    112 ff.;

    (27) [(1) p.58] For some of these authors, see ' Etudes sur la
    IIIe Convention de Genève de 1949. Prisonniers de
    Guerre ', J. de PREUX, ' Revue internationale de la
    Croix-Rouge ', January 1954, p. 31;

    (28) [(2) p.58] See ' Remarks and Proposals submitted by the
    International Committee of the Red Cross, ' p. 38;

    (29) [(1) p.59] See Jürg H. SCHMID, op. cit., pp. 123 and sqq.;

    (30) [(2) p.59] See in this connection, ibid., pp. 128-132,
    which contains many references;

    (31) [(1) p.60] See ' Report on the Work of the Conference of
    Government Experts, ' p. 108;

    (32) [(2) p.60] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol, II-A, p. 479;

    (33) [(3) p.60] Rolin, quoted by SCHMID, op. cit. p. 131;

    (34) [(4) p.60] See above, p. 53, Note 1;

    (35) [(1) p.62] Article 10, paragraph 3, of the Armistice
    Agreement between France and Germany, dated June 22, 1940;

    (36) [(2) p.62] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, pp. 519-520 and 532-533. In this
    connection, it should be noted that the Free French
    authorities denied the validity of the armistice,
    especially after November 11, 1942, when the whole of
    France was occupied by the German forces. See SCHMID, op.
    cit., p. 115, Note 85;

    (37) [(3) p.62] See ' Report on the Work of the Conference of
    Government Experts, ' pp. 104 and 106-107;

    (38) [(4) p.62] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-A, p. 465;

    (39) [(5) p.62] Ibid., pp. 479-480 and p. 577;

    (40) [(1) p.63] See ' Report on the Work of the Conference of
    Government Experts, ' pp. 106-107;

    (41) [(2) p.63] Ibid., p. 106;

    (42) [(3) p.63] Mercenaries who devastated France in the XIVth
    century, during the peaceful periods of the Hundred Years
    War;

    (43) [(1) p.64] See ' Report on the Work of the Conference of
    Government Experts, ' pp. 112-113;

    (44) [(2) p.64] Ibid., p. 113;

    (45) [(3) p.64] See ' XVIIth International Red Cross
    Conference, Draft Revised or New Conventions for the
    Protection of War Victims, ' p. 52;

    (46) [(1) p.65] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-A, p. 417;

    (47) [(2) p.65] Ibid., p. 418;

    (48) [(3) p.65] See also Annex IV to the Convention, which
    gives as an example a model identity card for persons to
    whom the present provision refers. See below, p. 669;

    (49) [(4) p.65] Article 8 of the XIth Hague Convention, 1907,
    stipulated that the provisions of Article 6 of the same
    Convention did not apply to ships taking part in the
    hostilities;

    (50) [(1) p.66] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, pp. 552-553. See also, for action by the
    International Committee of the Red Cross, ibid., pp.
    553-554;

    (51) [(2) p.66] See ' Report on the Work of the Conference of
    Government Experts, ' pp. 110 and 111. Some delegations
    suggested at the Conference of Government Experts that
    these merchant seamen should be free to choose between
    prisoner-of-war and civilian internee status; this
    suggestion was not approved, on the ground that the
    Detaining Power would thus be obliged to adopt two
    different kinds of internment for merchant service crews;

    (52) [(3) p.66] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-A, pp. 238-239 and 418-419;

    (53) [(4) p.66] Ibid., p. 419;

    (54) [(5) p.66] The first two paragraphs of Article 3 of the
    XIth Hague Convention, 1907, relative to certain
    restrictions on the exercise of the right of capture in
    maritime war, read as follows:
    "Vessels used exclusively for fishing along the coast
    or small boats employed in local trade are exempt from
    capture, as well as their appliances, rigging, tackle, and
    cargo.
    They cease to be exempt as soon as they take any part
    whatever in hostilities.";

    (55) [(6) p.66] The French text here uses the term
    "commandants", while in the English version the word
    "masters" is used. The captain is undoubtedly a member of
    the crew and the French equivalent of "master" might be
    "patron". In any case, the French translation of the
    original English text appears to be unsatisfactory;

    (56) [(7) p.66] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-A, p. 419;

    (57) [(8) p.66] Only twenty-nine countries are bound by that
    Convention;

    (58) [(1) p.67] See ' Report on the Work of the Conference of
    Government Experts, ' p. 107. One might, however, mention
    the case of Crete; see in this connexion WALTZOG, ' Recht
    der Landkriegsführung, ' Berlin, 1942, p. 23;

    (59) [(2) p.67] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-A, p. 239 and pp. 420-421;

    (60) [(3) p.67] See Albert MECHELYNCK, op. cit., p. 120;

    (61) [(4) p.67] See in this connection Jürg H. SCHMID, op.
    cit., p. 139;

    (62) [(1) p.68] See ' Report on the Work of the Conference of
    Government Experts, ' pp. 104 and 111;

    (63) [(1) p.69] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-A, p. 431;

    (64) [(2) p.69] Ibid., p. 432;

    (65) [(3) p.69] These two Articles provide that the neutral
    Power shall in general be responsible for the internment
    and subsistence of the persons concerned, the resulting
    expenses to be made good at the conclusion of peace;

    (66) [(1) p.70] See ' Report on the Work of the Conference of
    Government Experts, ' p. 104. See also, for an account of
    the work of the International Committee in behalf of
    internees in neutral countries during the Second World
    War, ' Report of the International Committee of the Red
    Cross on its activities during the Second World War, '
    Vol. I, pp. 555-566;

    (67) [(2) p.70] See ' XVIIth International Red Cross
    Conference, Draft Revised or New Conventions for the
    Protection of War Victims, ' p. 53;

    (68) [(3) p.70] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-A, p. 436;

    (69) [(4) p.70] Ibid., Vol. III, p. 62, No. 93;

    (70) [(5) p.70] Ibid., Vol. II-B, p. 341;

    (71) [(1) p.71] For the list of these functions, see below, p.
    98, note 2;

    (72) [(1) p.72] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-B, pp. 341-342;