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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,

"the 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. '

(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);