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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
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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
of 1987
Armed forces
[p.505] Article 43
-- Armed forces
[p.506] Paragraph 1 -- Definition of armed forces
' Introduction '
1659 This article defines "the armed forces of a Party to a conflict", and provides that the members of such armed forces are combatants,
subject to some exceptions. It implies that the concept of "Party to
a conflict" in the sense of the Protocol is a known concept, as is
the concept of armed conflict.
1660 In the terms of Article 2
common to the Geneva Conventions of 1949, these Conventions apply, apart from cases of military
occupation of an area, even if such occupation meets with no
resistance, in "cases of declared war or of any other armed conflict
which may arise between two or more of the High Contracting Parties".
Thus this covers not only armed conflict or war in the formal sense,
but also any de facto armed conflict, even if it is not recognized as
such. An attempt has been made to define this as follows:
"Material war implies a continuous clash of arms conducted by organized armies which engage the responsibility of
governments. It does not presume the condition that the
belligerents must be States. The existence of war in the
material sense is something to be judged by evidence not of
intention, but of the activities of military forces in the
field." (1)
1661 However, this must not become an expedient designed to avoid the application of ' jus in bello. ' A Party to a war which is not
recognized as such is therefore not necessarily a State, nor even an
authority representing a State. In fact, this distinction was not yet
made in the texts of the Conventions, which, though they are not
limited to the state of war in a legal sense, (2) are limited, as far
as [p.507] international conflicts are concerned, to clashes arising
between two or more contracting Parties, i.e., States. However, it is
clear that Article 2
, paragraph 3, of the Conventions provides the
possibility for their application to a Power which is not a Party to
the Conventions, "if the latter accepts and applies the provisions
thereof". Some writers no consider that the term "Power" can refer to
entities that are not States. (3) However, it is perfectly clear that
the Protocol has extended its field of application to entities which
are not States (Article 1
-- ' General principles and scope of
application, ' paragraph 4). If they conform to the requirements of
the present article, liberation movements fighting against colonial
domination (provided that they make a declaration under Article 96
' (Treaty relations upon entry into force of this Protocol), '
paragraph 3, and resistance movements representing a pre-existing
subject of international law may be "Parties to the conflict" within
the meaning of the Conventions and the Protocol. However, the
authority which represents them must have certain characteristics of
a government, at least in relation to its armed forces. Nor is it out
of the question that the United Nations could be a "Party to an armed
conflict" in the material sense, although the problem of the
accession of the United Nations to the Geneva Conventions and the
Protocol remains a delicate question which has not yet been
resolved. (4) Moreover, it cannot necessarily be deduced from the
text that the scope of Article 1
' (General principles and scope of
application), ' paragraph 4, of the Protocol is limited to cases of
decolonization and occupation still in existence at the time that the
Diplomatic Conference concluded its deliberations. (5) Theoretically
at least, the notion of "Party to the conflict", within the meaning
of the Protocol, is fairly wide, involving not only resistance
movements representing a pre-existing subject of international law
and governments in exile, but also those fighting for conflicts of
"self-determination" or "national liberation". Those who consider
this distinction to be fundamental might fear that this could result
in some confusion between international conflicts and conflicts which
are not international.
1662 At any rate it is to be feared that we shall have to face in future clashes of views with one of the adversaries claiming to be a
Party to the conflict in the sense of the Protocol and the other one
refuting such a claim. The clause allowing such a Party to the
conflict to be "represented by a government or an authority not
recognized by an adverse Party" will not in fact help to resolve the
problem if the refutation is based on a denial of the status of Party
to a conflict. In the view of [p.508] the ICRC -- the originator of
this proposal -- the clause referred to should in no way nullify the
distinction between international conflicts and conflicts which are
not international. According to the commentary of the 1973 draft
articles of the ICRC,
"t
he non-recognized government or authority must represent, or must claim to represent, a subject of international law
recognized as such by the other Party to the conflict; as a
rule, the subject of law will have existed prior to the
conflict, which will therefore from the outset be of an
international character; exceptionally, however, it may also
be established in the course of the conflict, either because
of its recognition as a State by the other Party to the
conflict or because of its recognition as a belligerent,
whereby the other Party to the conflict confers upon the
recognized subject a certain limited and provisional
international personality. In any case, the mere existence of
a government or resistance movement is not sufficient
evidence of the international character of the conflict, nor
does it establish that character and hence render the
application of the present Protocol mandatory". (6)
If a resistance movement cannot be considered as a Party to the conflict within the meaning of the Protocol, it must belong to a
Party to the conflict, within the meaning of Article 4A
(2) of the
Third Convention.
1663 According to the Conventions, combatant status is given to regular forces only which profess allegiance to a government or
authority which is not recognized by the adversary, but which claims
to represent a State which is a Party to the conflict. (7) In the
Protocol, entities which are not States, but which should, at least
to some extent, be subjects of international law, may in certain
circumstances become Parties to the conflict. Whether such Parties to
the conflict claim to be a State or an entity which is not yet a
State, they may take the form of an authority which is not recognized
by the adversary. In any case, it is not impossible that various
authorities might all claim to represent one and the same Party to
the conflict, such as a "people" fighting against "alien occupation",
for example. Such authorities can take part in the fight, not only
through the regular army, but through "all organized armed forces,
groups and units which are under a command responsible to that Party
for the conduct of it subordinates." This is where the new definition
of armed forces actually comes in.
[p.509] ' First sentence -- Composition of the armed forces '
' The historical background '
1664 "The fact that the development of aviation and the use of new arms has almost wiped out the fundamental distinction
between combatants and civilians during the last World
War, can in no event justify even indirectly a state of
affairs which is disastrous for civilization and for
human life itself. If the law of war -- to the extent
that it endeavours to limit the means used for conducting
hostilities -- is to be a reality, it is essential to
re-establish the fundamental concept, which has actually
never been explicitly rejected, of the military
objective, and to reaffirm the basic distinction between
combatants and civilians." (8)
1665 This was certainly the view of the XXth International Conference of the Red Cross when it adopted a resolution in 1965, which
contained a solemn declaration addressed to all governments and other
authorities with responsibility for action in armed conflicts. It
stressed that a "distinction must be made at all times between
persons taking part in the hostilities and members of the civilian
population, to the effect that the latter be spared as much as
possible". During the 23rd session of the United Nations General
Assembly, this principle was expressly endorsed and was affirmed in
Resolution 2444 mentioned above. (9) In order to be able to make a
distinction between persons participating in hostilities and the
civilian population (Article 48
-- ' Basic rule '), it is necessary
to begin by giving suitable definitions of these terms. The Protocol
does not actually define the civilian population, but merely states
that any person who does not belong to the categories included under
the armed forces must be considered as a civilian (Article 50
--
' Definition of civilians and civilian population '). For this reason
alone, it is therefore already necessary to define armed forces.
1666 This was the solution adopted by the Hague Regulations of 1907 (Articles 1
-3), which begin with a chapter devoted to the
qualification of belligerents. These [p.510] articles lay down that
the laws, rights and duties of war apply only to armies and to
militia and volunteer corps which form part of the army. The militia
and volunteer corps which do not form part of the army should fulfil
the following conditions (Article 1
):
- to be commanded by a person responsible for his subordinates;
- to have a fixed distinctive emblem recognizable at a distance;
- to carry arms openly; and
- to conduct their operations in accordance with the laws and customs of war.
1667 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 the above-mentioned rules, shall be regarded as
belligerents if they carry arms openly and if they respect the laws
and customs of war (Article 2
-- ' Levée en masse '). The armed
forces of the belligerent parties may consist of combatants and
noncombatants. In case of capture by the enemy, both have a right to
be treated as prisoners of war (Article 3
).
1668 These rules governed the two World Wars of the twentieth century. However, though the rules remained the same after 1907, the conduct
of hostilities altered radically, as we have already indicated. (10)
Nevertheless, in 1949 during the drafting of the Third Convention,
the above-mentioned rules were confirmed (Article 4
). The only
alterations consisted of conferring the status of prisoners of war,
to members of regular armed forces who profess allegiance to a
government or an authority not recognized by the Detaining Power --
so that they will have the status of combatants and will be entitled
to take part directly in hostilities -- (Article 4A
(3)), and
extending such status also to resistance movements in occupied
territories, provided that such movements belong to a Party to the
conflict (Article 4A
(2)) (11)
1669 Without abrogating the rules referred to above, (12) this article of the Protocol actually introduces entirely new concepts, though
these have been the subject of discussion since the Brussels
Conference of 1874.
1670 As stated at The Hague, (13) this is a question of enormous importance; anyone whose status as a member of the armed forces is
recognized, is entitled to be treated as a prisoner of war in the
event that he is captured; anyone who takes up arms without being
able to claim this status will be left to be dealt with by the enemy
and its military tribunals in the event that he is captured. Some
wished to impose strict conditions on the definition of the status of
members of the armed [p.511] forces, bearing in mind the necessities
of war; others would not allow any restriction to the right and duty
of taking up arms, apart from the organization required to maintain
the basic rules of good faith pertaining to warfare and to prevent
banditry. Finally the question was resolved at The Hague along the
lines indicated above, which means that for combatants who do not
fulfil the conditions imposed, nothing is provided in the
Regulations, either in their favour or against them. (14) These are
rules of unwritten law, in accordance with the principles of the law
of nations referred to in the Preamble (Martens clause). Therefore it
is clear that nothing in the Regulations should be considered as
tending to lessen "or suppress the right that belongs to the
population of an invaded country, to carry out its duty of opposing
to the invaders by any lawful means the most energetic patriotic
resistance". (15)
1671 However some countries do not trust unwritten law. (16) They consider the principle of self-determination, exercised in accordance
with the United Nations Charter, to be a principle of international
law and they have been successful in their efforts to have it written
into the definition of the scope of application of the Protocol,
namely a reference to fighting undertaken in order to bring the
above-mentioned principle to fruition (Article 1
-- ' General
principles and scope of application, ' paragraph 4). Peoples conduct
such armed conflicts themselves. All combatants who are taken
prisoner should consequently be accorded the prisoner-of-war
status (17) and this should be done in the form of a specific
provision. This is the object of the provision with which we are
concerned here, except that its scope is not limited to conflicts for
self-determination which form the object of Article 1
' (General
principles and scope of application), ' paragraph 4; it generally
applies to any Party to an armed conflict in the sense of the
Protocol. However, as stated above, this does not invalidate the
norms of the Hague Regulations and Article 4
of the Third Convention.
Nevertheless, one might say that this provision does not only respond
to the concerns of national liberation movements, but also to those
which have been expressed since 1874, and which were briefly outlined
above.
' Scope of application of the provision '
1672 In his report, the Rapporteur considers that the text which the Committee finally adopted "is relatively clear and requires little
explanation". (18) This could mean that one should read in this text
all that is written into it, and nothing but what is written into it.
Only a few explanations follow below. The expression "armed forces"
means "members of the armed forces", i.e., persons, as explicitly
[p.512] stated in paragraph 2. In itself it therefore does not allow,
for example, the use of animals trained to attack, who are incapable
of distinguishing between an able-bodied enemy and an enemy who is
' hors de combat ' (Article 41
-- ' Safeguard of an enemy hors de
combat '). The term "organized" (19) is obviously rather flexible, as
there are a large number of degrees of organization. In the first
place, this should be interpreted in the sense that the fighting
should have a collective character, be conducted under proper control
and according to rules, as opposed to individuals operating in
isolation with no corresponding preparation or training. A
"responsible" command cannot be conceived of without the persons who
make up the command structure being familiar with the law applicable
in armed conflict. In this respect, Article 77
of the Protocol
' (Protection of children) ' requires that all feasible measures are
taken to prevent children under fifteen years of age from taking a
direct part in hostilities, and therefore from being recruited into
the armed forces. It is also appropriate to recall that the Hague
Regulations (Article 23
, paragraph 2), as well as the fourth Geneva
Convention (Article 51
) prohibit the forced enrolment into its armed
forces of nationals of the adverse Party. The particular problem of
mercenaries will be examined in connection with Article 47
' (Mercenaries). ' All armed forces, groups and units are necessarily
structured and have a hierarchy, as they are subordinate to a command
which is responsible to one of the Parties to the conflict for their
operations. (20) In other words, all of them are subordinate to a
command and to a Party to the conflict, without exception, for it is
not permissible for any group to wage a private war. (21) Under these
conditions, as well as those of the second sentence of this
paragraph, all armed forces are "regular", whether they are
established by a State in pursuance of appropriate laws, or by
another Party to the conflict using its own methods, or even if they
have risen spontaneously. Wearing or not a uniform or outfit is not a
decisive criterion for the status of the individual concerned, as we
will see in the examination of Article 44
' (Combatants and
[p.513] prisoners of war), ' even though the command must require,
subject to certain exceptions, that it be worn. Neither can a
decisive criterion be found in the fact that individual combatants
effectively respect the rules of international law applicable in
cases of armed conflict (Article 44
-- ' Combatants and prisoners of
war, ' paragraph 2), but such respect is incumbent upon the armed
forces as such. According to one delegate at the Diplomatic
Conference, the armed forces recognized by the Protocol therefore
consist of "regular" and "irregular regular" combatants. In doing
this the Conference thus took full account of the new forces which
have appeared on the modern battlefield in the course of the last few
decades.
1673 This radical solution, although it caused some surprise, barely provoked any debate at this stage. However, one delegation remarked
that it had modified existing law, and when the article was adopted
by consensus at a final plenary meeting, it chose to indicate its
position fully in this respect (22)
1674 In the Hague system, the State guarantees that the rules of international law will be respected. When such guarantee is lacking,
the conduct of the combatants in the field is the decisive factor.
The Protocol eliminates this distinction, but subordinates every
combatant, even combatants belonging to a resistance movement, to a
Party to the conflict, which is not the case in the Third Geneva
Convention, in Article 4A
(2).
' Second sentence -- Conditions of discipline ' (23)
1675 Although a member of the armed forces who does not respect the rules of international law applicable in armed conflict does not, as
we have seen, thereby lose his combatant status and his right to be
treated as a prisoner of war (which does not mean that he cannot be
punished) the armed forces to which he belongs as such are
indissolubly bound by these rules. This was already the view of the
drafters of Hague Convention IV of 1907, when they provided in
Article 1
of this Convention that "the Contracting Powers shall issue
instructions to their armed land forces which shall be in conformity
with the Regulations respecting the laws and customs of war on land,
annexed to the present Convention". This requirement is rendered here
with the expression "internal disciplinary system", which covers the
field of military disciplinary law as well as that of military penal
law. The modern trend is to regard violations of rules of the
Protocol and of [p.514] other rules of international law as matters
primarily of military penal law. (24) The principle of the inclusion
of this rule in the Protocol was from the beginning unanimously
approved, (25) as it is clearly impossible to comply with the
requirements of the Protocol without discipline. (26) The expression
"rules of international law applicable in armed conflict" is defined
in Article 2
' (Definitions), ' sub-paragraph (b), as indicated
above. Article 86
' (Failure to act), ' which concerns the repression
of breaches resulting from a failure to act when under a duty to do
so, and Article 87
' (Duty of commanders), ' which defines the duties
of commanders with regard to breaches of the Conventions and the
Protocol, supplement the provision with which we are concerned here.
Anyone who participates directly in hostilities without being
subordinate to an organized movement under a Party to the conflict,
and enforcing compliance with these rules, (27) is a civilian who can
be punished for the sole fact that he has taken up arms, (28) unless
he falls under one of the categories listed under (2) and (6) of
Article 4A
of the Third Convention (categories (1) and (3), which
cover the regular armed forces, should automatically fulfil these
requirements).
Paragraph 2 -- Combatants
1676 The object of paragraph 1 is to establish a common denominator applicable to all, supplementing the specific rules of Article 4 of
the Third Convention, without however setting them aside, with a view
to defining who are members of the armed forces, as opposed to
civilians.
[p.515] 1677 The provision under consideration here goes one step further in declaring that members of the armed forces have the status of
combatants, with two exceptions: medical and religious personnel. In
the Third Convention, which deals only with the protection of
prisoners of war, and not with the conduct of hostilities, this
combatant status is not explicitly affirmed, but it is implicitly
included in the recognition of prisoner-of-war status in the event of
capture. The Hague Regulations expressed it more clearly in
attributing the "rights and duties of war" to members of armies and
similar bodies (Article 1
). The Conference considered that all
ambiguity should be removed and that it should be explicitly stated
that all members of the armed forces (with the above-mentioned
exceptions) can participate directly in hostilities, i. e., attack
and be attacked. The general distinction made in Article 3
of the
Hague Regulations, when it provides that armed forces consist of
combatants and non-combatants, is therefore no longer used. In fact,
in any army there are numerous important categories of soldiers whose
foremost or normal task has little to do with firing weapons. These
include auxiliary services, administrative services, the military
legal service and others. Whether they actually engage in firing
weapons is not important. They are entitled to do so, which does not
apply to either medical or religious personnel, despite their status
as members of the armed forces, or to civilians, as they are not
members of the armed forces. All members of the armed forces are
combatants, and only members of the armed forces are combatants. (29)
This should therefore dispense with the concept of
"quasi-combatants", which has sometimes been used on the basis of
activities related more or less directly with the war effort.
Similarly, any concept of a part-time status, a semi-civilian,
semi-military status, a soldier by night and peaceful citizen by day,
also disappears. A civilian who is incorporated in an armed
organization such as that mentioned in paragraph 1, becomes a member
of the military and a combatant throughout the duration of the
hostilities (or in any case, until he is permanently demobilized by
the responsible command referred to in paragraph 1), whether or not
he is in combat, or for the time being armed. If he is wounded, sick
or shipwrecked, he is entitled to the protection of the first and
Second Conventions (Article 44
, paragraph 8), and, if he is captured,
he is entitled to the protection of the Third Convention (Article 44
,
paragraph 1).
1678 Any interpretation which would allow combatants as meant in Article 43
to "demobilize" at will in order to return to their status
as civilians and to take up their status as combatants once again, as
the situation changes or as military operations may require, would
have the effect of cancelling any progress that this article has
achieved. Undoubtedly the success of guerrilla operations depends on
the requirements of flexibility and mobility which are largely dealt
with in Article 44
' (Combatants and prisoners of war), ' as we will
see. However, this concept of mobility could not be extended into the
legal field without falling fatally back into he "presumption of
illegality", (30) of which guerrilla fighters have justifiably
complained, and which Articles 43
-45 of the Protocol have endeavoured
to [p.516] remove. The Protocol exceptionally allows a guerrilla
combatant to wear purely civilian dress, if the nature of the
hostilities requires it (Article 44
-- ' Combatants and prisoners of
war, ' paragraph 3). However, it does not allow this combatant to
have the status of a combatant while he is in action, and the status
of a civilian at other times. (31) It does not recognize combatant
status "on demand". On the other hand, it puts all combatants on an
equal legal footing, in accordance with a desire expressed long ago,
as we have seen.
1679 According to the text, these combatants "have the right to participate directly in hostilities". (32) In this respect the
Rapporteur points out that a number of delegations have expressed the
wish that the report should record that, in their view, the term
"hostilities", used in paragraph 2, covers the preparations for
combat and the return from combat. (33) With regard to the ICRC, it
expressed the view, when introducing these terms in Article 46 of its
draft (now Article 51
-- ' Protection of the civilian population, '
paragraph 3) that they cover acts of war which are intended by their
nature or their purpose to hit specifically the personnel and the
' matériel ' of the armed forces of the adverse Party. (34)
Undoubtedly there is room here for some margin of judgment: to
restrict this concept to combat and to active military operations
would be too narrow, while extending it to the entire war effort
would be too broad, (35) as in modern warfare the whole population
participates in the war effort to some extent, albeit indirectly. The
population cannot on this ground be considered to be combatants,
although their possible presence near military objectives (Article 52
-- ' General protection of civilian objects, ' paragraph 2) does
expose them to incidental risk. The same applies to guerrilla warfare
where combatant forces can be organized at different levels, while
assuring some cooperation of the civilian population. (36) An
effective distinction between combatants and non-combatants may be
more difficult as a result, but not to the point of becoming
impossible. Direct participation in hostilities implies a direct
causal relationship between the activity engaged in and the harm done
to the enemy at the time and the place where the activity takes
place. However, it would be desirable for the various Parties to a
conflict to inform each other completely regarding the composition of
their respective armed forces, even if this were only done through
the communication of the laws and regulations which they have had to
adopt to ensure compliance with the Protocol, as provided in Article
84
' (Rules of application). '
[p.517] 1680 It should not be forgotten that under the terms of Article 85
' (Repression of breaches of this Protocol), ' paragraph 3(a), the
wilful attack on a civilian population or individual civilians is
included among the grave breaches.
1681 ' To summarize: ' the conditions which should all be met to participate directly in hostilities are the following: a)
subordination to a "Party to the conflict" which represents a
collective entity which is, at least in part, a subject of
international law; b) an organization of a military character; c) a
responsible command exercising effective control over the members of
the organization; d) respect for the rules of international law
applicable in armed conflict. These four conditions should be
fulfilled effectively and in combination in the field.
Paragraph 3 -- Incorporation of police forces
1682 During the discussions on Article 43
a proposal was made by a delegation (37) to specify that police forces should be excluded from
the armed forces, unless national legislation has otherwise provided
and the other Parties to the conflict have been notified accordingly.
A long discussion followed, relating on the one hand to the meaning
of the term "police force" (which can cover uniformed units as well
as plain clothes policemen) and, on the other, to the incompatibility
of any possible duplication of the function of internal lawkeeping
and that of combatant; even the relevance of the proposed
notification procedure and whether there should be any provisions on
this subject were discussed. Finally the terms "para-military" and
"armed law enforcement agency" were substituted for the expression
"police forces", particularly to take into account the differences in
internal organization in many States. The problem of any possible
duplication of functions referred to above was not explicitly solved,
though some may consider that such duplication is impossible. (38) In
his report the Rapporteur indicates that:
"the Committee recognized that, where a State had a law providing for the automatic incorporation of such forces into
its armed forces in time of war, the notice requirement might
be satisfied by notification to all Parties to the Protocol,
through the depositary". (39)
[p.518] 1683 In conclusion, uniformed units of law enforcement agencies can be members of the armed forces if the adverse Party has been notified of
this, so that there is no confusion on its part.
' J. de P. '
NOTES
(1) [(1) p.506] L. Kotzsch, ' The Concept of War in
Contemporary History and International Law ' (thesis),
Geneva, 1956, p. 56, quoted by D.W. Bowett, United Nations
Forces, London, 1964, p. 498. Without necessarily covering
all situations, this definition seems to include the
essential elements of war in a non-technical sense. For
the United States, the involvement in north Vietnam was
certainly a war de facto, even though it was not one de
jure. Other examples include the conflict over the
Falkland Islands (Malvinas) in which the United Kingdom
and Argentina were opposed in 1982, and the Sino-Indian
conflict of 1962-63;
(2) [(2) p.506] In fact, in the Geneva Conventions, any dispute, however serious, which may arise between two
States and result in the intervention of members of their
armed forces, is an armed conflict in the sense of Article
2, even if one of the Parties denies that there is a state
of belligerency. The duration of the conflict and the more
or less fatal character of its effects are irrelevant. The
respect owed to human beings cannot be measured by the
number of victims (see ' Commentary I, ' p. 32). However,
when signing the Protocols, the United Kingdom made the
following declaration regarding Article 1 of the Protocol:
"that the term 'armed conflict' of itself and in its
context implies a certain level of intensity of military
operations which must be present before the Conventions
and the Protocols are to apply to any given situation and
that this level of intensity cannot be less than that
required for the application of Protocol II, by virtue of
Article 1 of that Protocol, to internal conflicts";
(3) [(3) p.507] See D. Schindler, "The Different Types of Armed Conflicts...", op. cit., p. 136;
(4) [(4) p.507] See D. Schindler, "Die Anwendung der Genfer Rotkreuzabkommen seit 1949", 22 ASDI, 1965, pp. 75-120; F.
Seyersted, ' United Nations Forces in the Law of Peace and
War, ' Leyden, 1966; Institute of International Law, "Les
conditions d'application des lois de la guerre aux
opérations militaires des Nations Unies", 55 ' Annuaire
IDI ', vol. II, 1971, pp. 149-288;
(5) [(5) p.507] E. Kussbach, "Status der Guerillakämpfer und Söldner in bewaffneten Konflikten", 17 ' Wiener Blätter
zur Friedensforschung, ' 1978, p. 4. See also J.J.A.
Salmon, op. cit., p. 84;
(6) [(6) p.508] ' Commentary Drafts, ' p. 50;
(7) [(7) p.508] See Art. 4A(3) of the Third Convention. During the Second World War, i.e., before the 1949 Conventions
were adopted, Germany had resolved the problem by
considering the French regular army fighting under General
de Gaulle as fighting for England, a Party to the conflict
recognized by Germany. On the recognition of the political
authority of the Free French during the Second World War,
see Ch. Rousseau, ' Droit international public, ' Vol.
III, Paris, 1977, pp. 595-596, and on their recognition as
a nation, ibid., pp. 607-611;
(8) [(8) p.509] Translated by the ICRC; original text: "Que le développement de l'aviation et l'emploi d'armes nouvelles
aient presque effacé, au cours du dernier conflit mondial,
la distinction fondamentale entre combattants et civils,
ce fait en aucun cas ne peut consacrer, même
indirectement, un état de choses désastreux pour la
civilisation et pour la vie humaine elle-même. Si le droit
de la guerre -- pour autant qu'il tend à limiter les
moyens de conduire les hostilités -- doit être une
réalité, il est nécessaire de rétablir la notion
fondamentale, et qui d'ailleurs n'a jamais été
expressément abandonnée, de l'objectif militaire et de
réaffirmer la distinction essentielle qui existe entre
combattants et civils." M. Huber, "Quelques
considérations...", op. cit., p. 431;
(9) [(9) p.509] Moreover, it would be incorrect to think that the principle of this distinction has an exclusively
western origin or arose recently. Thus some participants
at the Diplomatic Conference recalled that a clear
distinction between combatants and non-combatants had
always been a principle of islamic law (see, for example,
O.R. V, p. 92, CDDH/SR.10, para. 9), and a number of laws
adopted in Western Europe during the Middle Ages reflect
the same concern (see F. Berber, op. cit., pp. 68-70). One
might wonder whether this rule is still understood at the
present time. To take one example, members of the armed
forces of national liberation movements are combatants in
the sense of the Protocol; therefore they cannot claim the
status of refugees under the terms of Article 1, para. 2,
of the 1969 Convention of the OAU on refugees; if,
nevertheless, they wish to be considered as refugees, they
will definitively lose their status as combatants and,
under Article 3 of that Convention, can no longer commit
hostile acts against another State;
(10) [(10) p.510] Supra, introduction to this Part, p. 383;
(11) [(11) p.510] For a review of these rules, see R. Lapidoth, "Qui a droit au statut de prisonnier de guerre?", ' RGDIP,
' RGDIP, ' No. 1, January-March 1978, pp. 4-13;
(12) [(12) p.510] Article 50 refers explicitly to Article 4A(1), (2) and (6) of the Third Convention, as well as to
Article 43 under consideration here. And Article 44,
paragraph 6, provides that "this Article is without
prejudice to the right of any person to be a prisoner of
war pursuant to Article 4 of the Third Convention.";
(13) [(13) p.510] A. Mechelynck, op. cit., pp. 117-118;
(14) [(14) p.511] Ibid., pp. 118, 120, 121;
(15) [(15) p.511] Ibid., pp. 118, 165;
(16) [(16) p.511] Supra, introduction to this Part, p. 384;
(17) [(17) p.511] Resolution 3103 (XXVIII) of the United Nations General Assembly, Basic principles of the legal
status of the combatants struggling against colonial and
alien domination and racist régimes, 12 December 1973; see
also the general debate during the second session of
Committee III, O.R. XIV, pp. 317-385, CDDH/III/SR.33-36;
(18) [(18) p.511] O.R. XV, p. 390, CDDH/236/Rev.1, para. 42;
(19) [(19) p.512] See ' Commentary III, ' p. 58, and ' Commentary Drafts, ' pp. 49-50. Some consider that this
condition requires in any armed unit the existence of a
system of authority and responsibility, in other words, a
military structure such as that found in regular armies
which should characteristically include a hierarchy,
responsibility and discipline (see P. Verri, "Combattants
armés ne pouvant se distinguer de la population civile",
21 ' RDPMDG ', No. 1-4, 1982, p. 345, at p. 354);
(20) [(20) p.512] This clause expresses in full the generally accepted interpretation of the word "responsible" in
Article 1 of the Hague Regulations: responsible to the
authority or State on whose behalf the fighting is
conducted, although some also occasionally wished to
detect a more general responsibility, with respect to the
principles of international law, or even with respect to
public opinion, which seems necessary if there is no
juridical link between the combatants and the Party to the
conflict to which they profess allegiance (Third
Convention, Article 4A(2). As regards the responsibility
of a commanding officer for the activities of his
subordinates, see J.-P. Maunoir, ' La répression des crimes de guerre devant les tribunaux français et alliés ', Geneva, 1956, pp. 312-388, especially p. 346. In
general, the exercise of such responsibility implies the
exercise of effective control over subordinates (see also
Art. 87);
(21) [(21) p.512] In this sense, see P. Verri, "combattants armés...", op. cit., p. 355. This type of hostilities
includes terrorist methods, such as taking diplomats or
businessmen as hostages or kidnapping sports or political
personalities, hijacking civilian aircraft etc., all such
acts having no direct link with military operations and
not being directed against combatants (for examples, see
M. Veuthey, op. cit., pp. 115-127 and 147);
(22) [(22) p.513] "With regard to Article 41 [43], paragraph 1, of draft Additional Protocol I, the delegation of Israel
wishes to declare that the enforcement of compliance with
the rules of international law applicable in armed
conflict is a ' conditio sine qua non ' for qualification
as armed forces. Moreover, it is not sufficient that the
armed forces be subject to an internal disciplinary system
which can enforce compliance with the laws of war, but --
as the expression 'shall enforce' indicates -- there has
to be effective compliance with this system in the field."
(O.R. VI, p. 116, CDDH/SR.39);
(23) [(23) p.513] The text of Art. 41 of the ICRC draft devoted to the same subject read as follows: "Armed forces,
including the armed forces of resistance movements covered
by Article 42, shall be organized and subject to an
appropriate internal disciplinary system. Such
disciplinary system shall enforce respect for the present
rules and for the other rules of international law
applicable in armed conflicts;
(24) [(24) p.514] O.R. XIV, p. 295, CDDH/III/SR.30, para. 38;
(25) [(25) p.514] Ibid., pp. 294-298;
(26) [(26) p.514] Cf. the remark of one delegation: "Discipline is a characteristic of the soldier, and if the internal
disciplinary system includes the order to apply the rules
of international humanitarian law in armed conflicts,
soldiers would carry out that order." (Ibid., p. 295,
para. 39). See also Ph. Bretton, "La mise en oeuvre des
Protocoles de Genève de 1977", 95 ' Revue de Droit Public
et de la Science Politigue en France et à l'Etranger ',
No. 2, March-April 1979, p. 379, at pp. 390-392 and
417-420;
(27) [(27) p.514] For the view according to which these four conditions are inseparable and must be complied with as a
whole, totally and continuously, see P. Verri,
"Combattants armés...", op. cit., p. 356, and in the same
sense, R. Lapidoth, op. cit., p. 26. For the affirmation
that these conditions together form the necessary
criterion for the essential distinction between combatants
and civilians, "a fundamental rule of the law of war of
Islam", see H. Sultan, "La conception islamique du droit
international humanitaire dans les conflits armés", 34
' Revue égyptienne de droit international ', 1978, p. 13;
(28) [(28) p.514] This problem also raised a number of questions in Committee III, in conjunction with a
questionnaire on fifteen points submitted by the
Rapporteur (CDDH/III/GT/75). Question No. 7 asked whether
groups were obliged to act in accordance with the rules
governing armed conflict; question No. 8 asked whether
this was an effective obligation and whether it had to be
complied with part of the time, all the time, or most of
the time. The members of the Working Group gave an
affirmative answer to question No. 7. With regard to
question No. 8, some answered"all the time", others
answered "in combat" or "when committing a hostile act".
One delegation expressed the view that if a group did not
wish to comply with the law, it put itself outside the
law. For other delegations the respect for these laws by
the group is a minimum or an essential condition. For the
statement by Israel at a final plenary meeting, see supra,
note 22. The ICRC in its draft provided that the rules of
law have to be complied with "in military operations"
(Article 42);
(29) [(29) p.515] For civil defence personnel, see Art. 67, which provides that members of the armed forces who form
part of civil defence shall be respected and protected,
provided that they do not participate directly in
hostilities (para. 1(e));
(30) [(30) p.515] M. Veuthey, ' Guérilla et droit humanitaire, ' op. cit., p. 37;
(31) [(31) p.516] The text of Art. 44, para. 3, specifies that the guerrilla combatant "shall retain" his status as a
combatant in such situations, which confirms that he has
acquired it independently of the activities as such,
solely on the basis of his being a member of the armed
forces of a Party to the conflict;
(32) [(32) p.516] Resolution 2675 (XXV) of the United Nations General Assembly entitled "(Basic principles for the
protection of civilian population in armed conflicts"
makes a distinction between "persons actively taking part
in the hostilities and civilian populations";
(33) [(33) p.516] O.R. XV, p. 330. CDDH/III/224;
(34) [(34) p.516] ' Commentary Drafts, ' p. 58;
(35) [(35) p.516] ' CE 1972, Report ', Vol. I, pp. 143-144, para. 3.116 and 3.120;
(36) [(36) p.516] For examples, see M. Veuthey, op. cit., pp. 195-197 and 271-274;
(37) [(37) p.517] In the Federal Republic of Germany the "Bundesgrenzschutz" is an agency which acts as a law
enforcement agency and frontier guard during peacetime and
which may participate directly in hostilities during
wartime;
(38) [(38) p.517] Cf. Arts. 59, para. 3, and 60, para. 4 of the Protocol;
(39) [(39) p.517] O.R. XV, p. 390, CDDH/236/Rev.1, para. 44. The Declaration on the police by the Parliamentary
Assembly of the Council of Europe provides that in case of
war and occupation, members of the police force should
continue to carry out their role of protecting persons and
property in the interests of the civilian population, and
should therefore not have the status of combatants (31st
ordinary session, Recommendation 858 (1979), and
Resolution 690 (1979), Annex, sub. C(1). However, the
Committee of Ministers did record some reservations on
this document);
GVALNWB2/ICRC
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