ICRC databases on international humanitarian law
  • Print page
Commentary - Part III : Methods and means of warfare -- Combatant and prisoner-of-war status #Section II -- Combatant and prisoner-of-war status
    [p.503] Part III, Section II -- Combatant and prisoner-of-war status


    1658 In the draft presented by the ICRC at the Diplomatic Conference this Section, entitled "Prisoner-of-war status", contained a single article (42) entitled: "New category of prisoners of war". (1) It was accompanied by a footnote which opened the door to the possibility of later adding a clause relating to national liberation movements. (2) This last point is dealt with in Article 1 ' (General principles and scope of application), ' paragraph 4, which places armed conflicts for self-determination as defined in that article within the scope of application of the Conventions and the Protocol. As regards Section II, this was considerably extended during the deliberations at the Conference, and now contains five articles, admittedly after some subjects, which the ICRC Draft had included under the heading ' Methods and means of combat ' (Article 40 -- Independent missions; Article 41 -- Organization and discipline), were transferred to this Section. However, on the whole Articles 43 -47 certainly represent new directions and original solutions for which the Conference itself can take the credit and the responsibility.

    ' J. de P. '


    NOTES

    (1) [(1) p.503] This draft article read as follows:
    "1. In addition to the persons mentioned in Article 4 of the Third Convention, members of organized resistance movements who have fallen into the hands of the enemy are prisoners of war provided such movements belong to a Party to the conflict, even if that Party is represented by a government or an authority not recognized by the Detaining Power, and provided that such movements fulfil the following conditions:
    a) that they are under a command responsible to a Party to the conflict for its subordinates;
    b) that they distinguish themselves from the civilian population in military operations;
    c) that they conduct their military operations in accordance with the Conventions and the present Protocol.
    2. Non-fulfilment of the aforementioned conditions by individual members of the resistance movement shall not deprive other members of the movement of the status of prisoners of war. Members of a resistance movement who violate the Conventions and the present Protocol shall, if prosecuted, enjoy the judicial guarantees provided by the Third Convention and, even if sentenced, retain the status of prisoners of war.";

    (2) [(2) p.503] "3. In cases of armed struggle where peoples exercise their right to self-determination as guaranteed by the United Nations Charter and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, members of organized liberation movements who comply with the aforementioned conditions shall be treated as prisoners of war for as long as they are detained." For the amendments proposed to Article 42 of the ICRC Draft, see O.R. III, pp. 178-186. For the historical background to the origin of the ICRC proposals, see M. Veuthey. ' Guérilla et droit humanitaire ', Geneva, 1976, pp. 249-259, and id., "Guerilla Warfare and Humanitarian Law", IRRC, June 1976, p. 277;