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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

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;