Treaties, States Parties and Commentaries
  • Print page
Commentary of 1987 
[p.381] Part III -- Methods and means of warfare -- Combatant and risonner-of-war status


1363 The law of war, and particularly that part of the law of war which relates to methods and means of warfare, more than ever before
deserve our special attention.

1364 Despite numerous violations and despite the horrors related to the appearance of new means of destruction, the Hague Regulations Respecting the Laws and Customs of War on Land were still more or less respected by the belligerents during the first World War. The situation worsened during the Second World War, particularly in the field of air and naval warfare, to the point where the question might well be asked whether any rules still existed. However, with regard to the matters more particularly covered by the Hague Regulations, the Military Tribunal of Nuremberg declared on 1 October 1946, addressing both signatories and non-signatories, that the provisions of the Regulations were recognized, at least at the start of the Second World War, by all civilized nations and that they were considered as being declaratory of the laws and customs of war. Furthermore, throughout the conflict no belligerent dared to claim that it was not bound by these rules. The mere fact of invoking the need to take reprisals for any particular operation necessarily implied the existence and recognition of a rule which would have prohibited the operations in other circumstances. In fact the most serious breaches of the Hague Regulations were particularly committed with regard to prisoners of war not covered by the Geneva Convention of 1929, and with regard to the inhabitants of occupied territories.

1365 In the resolutions adopted on respect for human rights in time of armed conflict, the United Nations General Assembly called upon all Parties to such conflicts to recognize and carry out the obligations incumbent upon them under the applicable humanitarian instruments, in particular the Hague Conventions of 1899 and 1907. In 1965 the XXth International Conference of the Red Cross confirmed the fundamental principle underlying the Hague Regulations, in Resolution XXVIII, namely that the right of Parties engaged in an armed conflict to adopt means of injuring the enemy is not unlimited (Article 22). On 19 December 1968 the United Nations General Assembly affirmed the resolution of the International Conference of the Red Cross and confirmed the above-mentioned fundamental principle of the law of The Hague (Resolution 2444 (XXIII)).

1366 These rules of warfare, or of conduct between combatants as they are sometimes called, are basically those contained in Articles 22 and 23 , paragraph 1(b), (c), (d), (e) and (f)of the Hague Regulations. In addition to the general [p.382] principle by which the right of belligerents to adopt means of injuring the enemy is not unlimited, they contain two types of fundamental rules: on the one hand, humanitarian rules, and on the other hand, rules on good faith. The humanitarian rules prohibit killing or wounding an enemy who has laid down his arms or no longer has the means to defend himself and has therefore surrendered unconditionally; they also prohibit refusing to give quarter and causing superfluous injury or unnecessary suffering. The rules on good faith prohibit killing or wounding the enemy treacherously, as well as deceiving him by the improper use of the flag of truce, of national emblems or of enemy uniforms, and also by the improper use of the red cross emblem. Every military Power, without exception, must include these fundamental principles in the instructions it issues to its troops.

1367 Thus the first Section of Part III ' (Methods and means of warfare) ' is concerned with the reaffirmation of these principles. This implies accepting the principle of limited warfare, as opposed to total warfare which discards all rules. It has a key function in relation to the other provisions of the Protocol, since non-respect for the rules of combat entails non-respect for all other rules. It should be considered as a constructive reaffirmation of the law of The Hague.

1368 One of the first objectives was to restore the fundamental rules amongst those who had brushed them aside, i.e., the participants in the two World Wars. There was another objective.

"It is a fact that between the end of the Second World War and the 1960s the community of States underwent a transformation without historical precedent in its extent and the speed with which it took place. The members of the universitas civitatum more than doubled in number in less than two decades. The vast areas occupied by dependent territories which still existed in 1945, mainly in two large continents, gradually and almost totally disappeared during this short period. Their populations, which had formerly been considered as objects of international relations and not as subjects enjoying, in the very first place, the right to self-determination, gave rise to numerous independent political entities, to States which have become full members of the international community." (1)

1369 These States, which had recently appeared on the international scene, were to be associated, formally and freely, with the promulgation of the fundamental principles. This was all the more appropriate because since 1945 it was the [p.383] territories of these new States that had been unceasingly afflicted by the ravages of war. They did not reveal any opposition in this respect and gave their support to the law of The Hague without difficulty.

1370 Problems only started to arise with regard to the second question, namely, combatant and prisoner-of-war status in guerrilla warfare, which is the subject matter of Section II of the present Part ' (Combatants and prisoner-of-war status). ' It is actually rather strange to note that on this point -- one might almost say, on this point alone -- the law of The Hague coped rather well during 1939-1945, so as to survive virtually intact, even at the end of the Diplomatic Conference of 1949. Hundreds of thousands, if not millions of resistance fighters opposed the occupying armies in Europe and elsewhere, often with nothing more than makeshift equipment at their disposal, but the Hague Regulations were not, on the whole, seriously shaken thereby. Belgians, Dutchmen, Frenchmen, Greeks, Italians, Norwegians, Poles, Russians and Yugoslavs, to mention only the peoples of the main occupied countries in Europe, as well as many others throughout the world, entered the fight bearing to a greater or lesser extent signs or uniforms to distinguish themselves from civilians (and sometimes bearing none at all), showing more or less respect for their prisoners (and sometimes not respecting them at all), often carrying their arms openly, though not always. Their combatant status was accepted or rejected, depending on whether one considered the territory in which they were fighting as invaded or occupied. It was not in fact unusual that in this struggle, where the rules of the law of The Hague barely survived, the conditions imposed by those rules for recognition of combatant status -- conditions which resistance fighters were unable to satisfy or to satisfy fully -- were upheld with full force. Both during the conflict however, and thereafter, the law as laid down in The Hague prevailed. During the conflict resistance fighters were often executed summarily, i.e., without formalities. After the conflict such summary executions were only disclaimed in exceptional cases, and when they were, it was at the price of arguing the illegality of the invasion or occupation. Thus there was no one who maintained that the Hague Regulations of 1907 had lapsed on this point. In this way the four conditions of 1907 were eventually reaffirmed in 1949 in Article 4 of the Third Convention: a responsible commander, a fixed distinctive sign, carrying arms openly, observing the laws and customs of war. The only concession consisted of recognizing the right to continue fighting when under occupation, provided that such guerrilla fighters belonged to a Party to the conflict.

1371 Thus in the 1949 Diplomatic Conference there was no intention to contest the reality of the phenomenon which had spread throughout the occupied countries, particularly in Europe, but rather to reaffirm the 1907 rules in order to avoid developments which were considered to be full of risks. This amounted to denying an inevitable evolution linked to the wish of territories to achieve independence. The situation was thus clearly paradoxical.

1372 There was one view in the past that no distinction was needed between combatants and non-combatants as military operations must have the aim of destroying the adversary's will to resist, wherever there is resistance, and thus indiscriminate bombing would be justifiable. On the other hand, with respect to guerrilla fighters, the legal view on that distinction remained as strict as before, and therefore qualified anyone who violated the four conditions of 1907 as a [p.384] non-privileged combatant, i.e., as a civilian with no right to carry arms. In view of such developments and contradictions, it was inevitable that subsequent to 1949 the design would sooner or later be returned to the drawing board, without prejudice however to the subject matter already covered by the 1949 Conventions. Yet there has never been any question of blaming those who in 1949, with the best intentions, upheld the draconian conditions with regard to guerrillas, in the belief that this phenomenon, which had been provoked during the Second World War by the occupation, mainly in Europe, could and should be limited in future, precisely because it had been connected with the occupation. What the drafters in 1949 could not have foreseen, was the truly enormous tidal wave of guerrilla activity which in the thirty years following 1945 affected countries which had not yet achieved independence. It was not clear at that time that ultimately guerrilla warfare would be the method of warfare ' par excellence ' for liberation movements and that the tide of self-determination would propel these movements forward, without giving thought to the conditions agreed upon in The Hague in another time and for other circumstances. The combination of, on the one hand, highly sophisticated means of warfare, products of technological development which make it possible to hit the enemy everywhere and anywhere, with weak legal regulations and, on the other hand, guerrilla activities whose methods are contested to the point where they have no real chance of confronting the adversary, can only lead to an escalation of brutality. Of course, this is not the aim of the law of war. Law is made for life, and not life for law. Is this not clear when man, at the price of so many lives and so much sacrifice, has striven to show the need for new behaviour. Law must not be dominated by sophisticated technical developments as a matter of course.

1373 This awareness of a growing rift between the law and reality, on the one hand, and between the available technical means and acceptance of rules governing their use, on the other hand, led the International Red Cross to proclaim certain fundamental principles in Vienna in 1965 and to start the process which was to conclude with the Diplomatic Conference and with the Additional Protocols. In fact, the prevailing view in Vienna in 1965 was basically a concern for the protection of civilian populations against the dangers of indiscriminate warfare. It was the Human Rights Conference in Teheran in 1968 which emphasized respect for human rights in armed conflicts, and which took up the cause of some categories of guerrilla fighters, relying on the principles of the United Nations. Subsequent resolutions of the United Nations General Assembly insisted on the need for developing rules governing the status, protection and humane treatment of combatants (Resolution 2852 (XXVI), 1971) and on the absolute necessity to make significant further progress, particularly in the field of guerrilla warfare (Resolution 3032 (XXVII), 1972). Moreover, it would be wrong to think that the majority view which had emerged during the Diplomatic Conference of 1949 was unalterable. Even in 1951 Professor Baxter had predicted that "it is possible to envisage a day when the law will be so retailored as to place all belligerents, however garbed, in a protected status". (2) Before the start of the Diplomatic [p.385] Conference, in 1974, proposals were made suggesting that the open carrying of arms during military operations would be sufficient to distinguish guerrilla fighters from members of the civilian population. Such suggestions did not come only from countries striving for independence, or those supporting them. (3) As far as Draft Additional Protocol was concerned, which the ICRC had prepared to serve as a basis of discussion at the Diplomatic Conference, this only provided in Article 42 for an obligation "that [members of organized resistance movements] distinguish themselves from the civilian population" without any further clarification.

1374 Thus the matter seemed to have a promising start. However, when it was linked to a proposal presented at the first session of the Diplomatic Conference in 1974, to consider wars of national liberation engaged upon invoking the principles of the United Nations Charter as international conflicts, the entire issue became doubtful. By sheer hard work, the will to find a solution, concern to avoid breaking up the Conference and a sense of the magnitude and indivisibility of the problems, success was finally achieved by means of a formulation which admittedly is not always very clear. But if there is one area where it may be said that while criticism is easy positive action is not, this must be it.

1375 Some claimed that this concession amounted to abolishing the requirement that the law of armed conflict be respected in military operations conducted by members of guerrilla movements, while still granting the latter the status of legitimate combatants and of prisoner of war in case of capture. Such allegations are not well-founded, but this introduction is not the right place to discuss that. A status does not entail exemption from penal prosecution if a crime is committed, but offers international procedural guarantees. The achievement is no less great for all that. It led to an international definition of legitimate combatants in an international armed conflict which applies whether combatants are those of a State or not.

1376 Of course, an international conference always takes place at a given time in history with its underlying or open disagreements and its current concerns which influence those looking for solutions and the solutions found, which are therefore to some extent pragmatic. There is no greater possibility of permanent rules than there is of permanent circumstances. Some will always argue that the steps taken are unduly cautious, while others will say they are too bold, but the main point is that they are taken in the right direction.

1377 The first part of the heading of Part III, like the heading of Section I, which is identical, uses words taken directly from the text of Article 35 ' (Basic rules). ' Although they use different terminology from that used in the Hague Regulations for the same subject, they are not fundamentally different. The expression "means of injuring the enemy" was also taken from the fundamental article according to which belligerents do not have an unlimited right in this respect (Hague Regulations, Section II, Hostilities, Chapter I, Means of injuring the enemy, sieges, and bombardments).

[p.386] 1378 As regards the term "combatant and prisoner-or-war status", used as the heading of Section II, one may recall the headings found in Section I of the Hague Regulations, viz., "On belligerents" or even more specifically "The qualifications of belligerents", and "Prisoners of war". Apart from the fact that the order of the sections is reversed, the structure used in the Protocol for these subjects is therefore the same as that of the Hague Regulations.

1379 However, such similarities have only gradually become apparent. As the ICRC had no intention of saying anything about the possibility of amending the Hague Regulations, but was originally concerned only with the conduct of combatants with a view to limiting unnecessary suffering, Part III was simply entitled "Combatants" in the draft presented in 1972 to the second session of the Conference of Government Experts. This subject was not subdivided, although one article (38) was devoted to guerrilla fighters. The fundamental character of the rules of the present Article 35 ' (Basic rules) ' as well as the importance to be accorded to combatants status in guerrilla warfare, at least when they are captured, finally prevailed, however. In 1973 the draft presented by the ICRC had a basically similar structure to the present one. However, during the Conference itself Section II was considerably developed.

' J. de P. '


(1) [(1) p.382] Translated by the ICRC. Original French: "Il est un fait qu'entre la fin du deuxième conflit mondial et les années soixante, la société des Etats a été le théâtre d'une transformation dont l'étendue et la vitesse n'ont pas de précédents dans son histoire. Le nombre des membres de ' l'universitas civitatum ' a plus que doublé en moins de deux décennies. Les vastes étendues de territoires dépendants qui subsistaient encore, vers 1945, dans deux grands continents surtout, ont progressivement et presque totalement disparu au cours de cette courte période. Leurs populations, considérées auparavant comme objet de relations internationales, et non comme sujets dotés avant toute chose du droit de décider d'eux-mêmes, ont donné naissance à de nombreuses entités politiques indépendantes, à des Etats devenus membres à part entière de la communauté internationale." R. Ago, "Droit des traités à la lumière de la Convention de Vienne, Introduction", 134 ' Hague Recueil, ' 1971/III, pp. 306-307;

(2) [(2) p.384] R.R. Baxter, "So-called "Unprivileged Belligerency': Spies, Guerillas and Saboteurs", 28 BYIL, 1951, p. 323, in particular p. 343;

(3) [(3) p.385] See, for example, ' The Department of State Bulletin, ' No. 1773, 18 June 1973, p. 880;