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Commentary of 1987 
Protection of persons who have taken part in hostilities
[p.543] Article 45 -- Protection of persons who have taken part in hostilities

[p.544] General remarks

1725 A number of considerable political upheavals accompanied the military operations of the Second World War: occupations, armistices, reversals of alliances and the disappearance, exile and creation of a number of governments. This resulted in abnormal and confused situations, characterized by an inextricable tangle of legal relations under international law. Some national formations continued to take an active part in hostilities, while the adversary denied them the right to do so, refusing to consider them as regular combatants, but as ' francs-tireurs, ' i.e., as individuals participating in military operations of their own volition, without forming part of the armed forces.

1726 The ICRC, which expended a great deal of effort to guarantee these combatants a minimum degree of protection when they were captured by adversaries, proposed in 1949 to include a provision to this effect in the Third Convention. This is Article 5 , paragraph 2, which provides that if there is any doubt regarding the status of prisoner of war for a person who has committed a belligerent act and who has fallen into enemy hands, such a person shall enjoy the protection of the Third Convention until his status has been determined by a competent tribunal. To this text, which was still rather imprecise and at an embryonic stage despite the undeniable progress which it represented in 1949, the Protocol adds Article 45 , the article under consideration here, which marks an important development.

1727 According to some delegations, the adoption of Article 1 ' (General principles and scope of application) ', paragraph 4, and of Article 43 (' Armed forces ') and Article 44 ' (Combatants and prisoners of war) ' -- which give legal recognition to combatants of guerrilla warfare, and to the methods of guerrilla warfare, had [p.545] brought to light the problems of resistance under alien occupation. Consequently the guarantees of Article 5 , paragraph 2, of the Third Convention still appeared to be insufficient. They were insufficient because the 1949 authors had preferred it that way, not wanting to encourage a disproportionate increase in the number of categories of persons entitled to the status of prisoner of war, nor wanting to allow too much room for the inevitable disagreements regarding the qualifications for such status which would ensue.

1728 However, this concern, laudable though it was, could no longer stand in the way of the realities of modern warfare in 1976. Since the Conference wished to take into account the various categories of combatants which had appeared in the most recent conflicts, (1) it was therefore also necessary to establish procedures which were more likely to guarantee that this status would be granted them. If this were not done, this concession would have been a sham. Thus one representative did not hesitate to state that it was in order to save the humanitarian cause (2) that so many delegations had presented proposals relating to the protection of persons taking part in hostilities. (3) The reason is quite simple: anyone who commits a hostile act without belonging to armed forces recognized by the adversary risks being punished severely by the latter, and may even be sentenced to death. (4) It follows that the classification used by the "competent tribunal" of Article 5 of the Third Convention will act, in the words of one delegate, as "a finger of destiny for the prisoner concerned", (5) whose conduct will be interpreted not in terms of his own concepts, but in terms of those of his enemy. (6)

1729 Paragraph 1 relates to the status of prisoner of war at the time of capture. Paragraph 2 deals with legal proceedings which may in due course be instituted if a captured person is not detained as a prisoner of war. Paragraph 3 guarantees [p.546] protection under Article 75 ' (Fundamental guarantees) ' to any person who does not have the right to the status of prisoner of war. (7)

Paragraph 1 -- The status of prisoner of war at the time of capture

1730 Contrary to Article 5 , paragraph 2, of the Third Convention, which provides only for cases in which there is doubt (though it is often claimed that doubt exists only in the mind of the captor), this paragraph lists the cases where doubt regarding the status of the combatant concerned must give way to a presumption of prisoner-of-war status. If nevertheless the doubt still exists, the rule is the same as that of Article 5 quoted above, although the burden of proof falls upon the captor.

' First sentence -- Cases where a presumption of prisoner-of-war status applies '

1731 As a general rule, members of the armed forces distinguish themselves by wearing a uniform (Article 44 -- ' Combatants and prisoners of war, ' paragraph 7) (8) Article 17 of the Third Convention also urges every Party to a conflict to provide any person under its jurisdiction who could become a prisoner of war, with an identity card. (9) When these rules are complied with, and there is no argument regarding the status of the armed forces observing them, the problem of the status of prisoner of war is automatically resolved.

1732 The same does not apply to guerrilla fighters who lack such forms of evidence, either partly or wholly, for reasons which actually characterize guerrilla warfare. To put upon a guerrilla fighter the burden of proof at the moment of capture might be tantamount to taking away with one hand the benefits given with the other in Article 44 ' (Combatants and prisoners of war). ' Therefore, the provision under consideration here distinguishes various circumstances, and provides for three cases. However, before examining these three cases, it would be appropriate to fully understand the problems which must ultimately be resolved. The combatant of Article 43 ' (Armed forces) ' is not necessarily captured while taking part in a military operation, a situation in which he must distinguish himself from the civilian population, at least during the engagement itself and during a period preceding the engagement. (10) It is perfectly possible, in the context of Article 44 ' (Combatants and prisoners of war) ' for him to fall into the power of the adversary while he is going about his normal everyday civilian activities, and at this time nothing would distinguish him from any other civilian. If the person [p.547] concerned is actually a member of the armed forces in the sense of Article 43 ' (Armed forces), ' he is undeniably entitled to prisoner-of-war status, regardless of his previous activities (Article 44 -- ' Combatants and prisoners of war, ' paragraph 5). Conversely he may also fall into the power of the adversary while he is engaged in a military operation preceding an attack; in other words, while he is armed, but at a stage where he is not necessarily obliged to carry his arms openly or to display a distinguishing sign. In this case his status as a prisoner of war cannot be denied either, if he is a member of the armed forces of a Party to the conflict. Finally, it is self-evident that such a combatant could also be captured during the military engagement itself, whether the attack is directed against a military objective or not. He is entitled to the status of prisoner of war under all circumstances, whatever the cause (Article 44 -- ' Combatants and prisoners of war, ' paragraph 2), with the sole proviso that he has a distinctive sign or that he carries his arms openly (Article 44 -- ' Combatants and prisoners of war, ' paragraph 3, second sentence, and paragraph 4).

1733 In other words, the capture can occur in conditions when the captor has no way of finding out whether or not the person concerned is a prisoner of war, or perhaps in circumstances which give him some indication, but no proof on this point. This provision has therefore introduced a system of legal presumptions in favour of the prisoner. If the captor wants to contest such a presumption, it is up to him to present evidence that the person concerned is not a prisoner of war (this procedure is dealt with in the second sentence of this paragraph). In fact, as has been remarked, it would be unthinkable to require a prisoner, for example, in a case of urban resistance, to reveal the name of his commanding officer, and then the whole hierarchy of the organization to which he belongs, simply in order to furnish proof that he is entitled to the status of prisoner of war. (11) Thus there will be a legal presumption in favour of the prisoner:

a) ' If he claims prisoner-of-war status '

1734 A simple statement of claim suffices. Taking into account the situations which may arise, not only in guerrilla warfare, (12) but also in other circumstances mentioned above, this condition finally appeared to be the simplest and most secure, although some feared that this would leave the door wide open to common law criminals. One delegate to the Conference showed that if it is certain that the person concerned cannot belong to armed forces organized in accordance with Article 43 ' (Armed forces) ' -- possibly because such forces do not exist in the [p.548] captor's view -- the claim would be inoperative. (13) However, it is quite possible that the individual who has been captured abstains from claiming prisoner-of-war status for fear of betraying the organization to which he belongs, or even because he is wounded to such an extent that he is no longer able to express himself. In this case he should receive the care required for his condition. If the person concerned remains silent of his own accord regarding his right to prisoner-of-war status, he may be classified under the category of civilians, although this is not necessarily the case. In practical terms, the solution may depend on the conditions listed below under b) and c). Moreover, though it is conceivable that a prisoner might forego exercising his right to prisoner-of-war status, he cannot renounce the right as such, as this is an inalienable right in accordance with Article 7 of the Third Convention. The Conference certainly did not intend to make any proposal constituting a derogation from this provision. (14) The principle of legal parity between members of so-called "regular" armed forces and other members of the armed forces of a Party to the conflict is thus integrally respected.

b) ' If he appears to be entitled to the status of prisoner of war '

1735 A soldier in uniform who is captured on the battlefield, whether he is able-bodied or ' hors de combat, ' whether or not he is able to give his name and other personal details, is automatically considered as a prisoner of war. The provision under consideration here extends this rule to all combatants of armed forces organized in accordance with Article 43 ' (Armed forces). ' The open carrying of arms during combat, or a visible distinguishing sign, can take the place of a uniform. If capture takes place outside the combat situation, an appropriate identification document is sufficient to indicate the position of its holder and his right to the status of prisoner of war. If such a document, distinguishing sign and arms are lacking, being present at a place which is a characteristic or important military objective (command post, fortified position) or the discovery of a muster-roll which includes the names of those concerned, or orders, plans of a military character which they are carrying, must lead to the same conclusion. In all such situations and in analogous situations, doubt is in principle excluded, whether or not the person concerned claims prisoner-of-war status, and there is no need to resort to Article 5 , paragraph 2, of the Third Convention or to the rule expressed in the second sentence of this paragraph. (15) It is normally up to the commanding [p.549] officer at the place where the capture takes place to determine the facts and to draw the necessary conclusions.

1736 However, if doubt still prevails -- for example, because of the absence of a distinguishing sign, in a situation where the members of guerrilla groups generally wear one, a breach of the obligation to carry arms openly, contradictory statements, suspicion of espionage or mercenary activities etc. -- the person concerned is nevertheless treated as a prisoner of war (Third Convention, Article 5 , paragraph 2; see also the second sentence of this paragraph). However, the commanding officer at the place of capture must take care that all scraps of evidence available at the time are gathered together and are not lost, whichever way they point. If necessary, he should be able to call in security services which are in a position to assist him. (16)

1737 But it is also possible that there is no doubt, in the sense that it is certain that the person who has been apprehended did not participate in hostilities. In this case, this provision does not apply. (17) On the other hand, in all cases where it would seem that the person apprehended is a civilian who has participated in hostilities, the second sentence of this provision applies.

1738 It should also be remembered that under the terms of Article 44 ' (Combatants and prisoners of war) ', paragraph 2, the violation of the rules applicable in the case of armed conflict does not deprive a combatant of his right to be a prisoner of war. (18)

c) ' If the Party on which the person concerned depends claims the status of prisoner of war on his behalf '

1739 The subordination of the person concerned to a force organized in accordance with the provisions of the Protocol is a fundamental and unconditional requirement of the status of combatant, as we saw in the analysis of Article 43 ' (Armed forces). ' There is no question of granting this status to an isolated person carrying on an individual fight.

1740 Thus it might seem surprising at first sight that a claim made by the Party on which the person concerned depends, whether this is by means of a notification to the Power detaining him or to the Protecting Power, is not the primary consideration. In fact, some delegations considered that it would be far more [p.550] important than a statement by the prisoner himself. However, it is a fact that such notification can take some time, that it is not always possible, and that the Protecting Power, if it exists, is not always available where and when it is required. There was also a fear that a Party to a conflict would claim or would abstain from claiming the status of prisoner of war for one of its nationals for opportunist reasons. All in all, it appeared that the best guarantee lay in the prisoner's own statement, but it is self-evident that confirmation by the Party on which he depends may be decisive in cases of doubt. (19)

1741 ' In conclusion, ' the Conference wished to take into account the fact that it is at the moment of capture that prisoners are exposed to the gravest danger. Prisoners suffer on the way from the place of capture to the camps, or they suffer as a result of decisions taken there and then with regard to their status: the price paid by prisoners has always been heavy and the Third Convention endeavoured to remedy this situation. (20) This provision takes an additional step forward in eliminating in the great majority of cases the possibility of a fatal doubt, and its consequences in criminal law; it achieves this by means of a system of presumptions which operate automatically in favour of the prisoner. In these various cases the question must be considered to have been definitively solved; the person concerned is entitled to the status of prisoner of war. (21)

1742 If any doubtful cases remain, these are dealt with in the second sentence of this paragraph and in paragraph 2 in case criminal law proceedings are involved.

' Second sentence -- prisoners whose status is in doubt at the time of capture '

1743 Despite the precautions taken by the drafters of this article, and all the presumptions which were outlined above, it is clear that cases of doubt may occur at the time of capture. There may be doubt regarding the individual capacity of the person concerned to be granted the status of prisoner of war, as well as regarding the status of the armed forces to which he belongs, or claims to belong, which should be organized in accordance with Article 43 ' (Armed forces). ' However, one thing is certain, and on this point the provision is quite clear: all persons who are captured and who are not considered either as prisoners of war or as civilians who have not participated in the hostilities, are treated there and then as prisoners of war until such time as their status has been determined by a competent tribunal.

[p.551] 1744 In certain cases, as we have seen, elements required for a legal presumption on the status of prisoner of war may be lacking: communications from the Party to the conflict on which the person concerned depends may be missing or may be delayed, (22) lack of factual evidence, the silence or denials of the person concerned, whose attitude may be contradicted by the facts or by statements of his comrades, (23) suspicion without conclusive evidence of espionage or mercenary activity or sabotage, etc. -- in other words, the doubt may concern the presumption itself.

1745 Independently of these uncertainties on an individual level, there is also uncertainty at a collective level. A combatant does not lose his right to the status of prisoner of war in case of capture for breaches of the law of armed conflict which he may have committed (Article 44 -- ' Combatants and prisoners of war, ' paragraph 2). However, the organization or armed forces to which he belongs are subject to the rules of that law without restriction (Article 43 -- ' Armed forces, ' paragraph 1, second sentence). His own disqualification for the status of combatant and of prisoner of war depends on the possible disqualification of the armed forces to which he belongs. (24) This point has never been doubted, even if individually the member of the said organization or armed force complies with the conditions which he is capable of fulfilling. (25) However, it is also necessary to establish both that the organization or armed force concerned does not submit to the rules applicable in armed conflict, and that the prisoner concerned effectively belongs to that organization or force. Therefore a "competent tribunal" is, under the terms of this provision, called upon in all these cases to determine the status of the person who has been captured. This rule is more or less based on Article 5 , paragraph 2, of the Third Convention (26) and the question which arises is [p.552] obviously that of knowing what is meant by a "competent tribunal". This problem had already arisen for the drafters of Article 5 of the Third Convention, who had successively suggested a "responsible authority" or a "military tribunal". The latter solution was finally rejected as it might lead to the most serious consequences for anyone brought before such a tribunal (a court martial), in wartime and virtually on the battlefield. The consequences would be tantamount to simply depriving him of all benefits afforded by the Third Convention. (27) The drafters finally agreed upon the expression "competent tribunal", (28) and the Rapporteur indicated in his report that "as in the case of Article 5, such a tribunal may be administrative in nature", (29) which includes, in particular, military commissions. (30) The importance of setting up such tribunals in good time cannot be overemphasized, particularly in the case of confrontations with guerrilla fighters. However, during the course of the debates it was stated that such a tribunal should be able to draw up some guidelines, even if these are primarily related to the actual circumstances and features of the particular armed conflict. (31) It was also remarked that guarantees should be furnished regarding its competence, its composition and its procedures, (32) and that it should be impartial and effective. (33) This is a great deal to ask, so close to the frontline. (34) Therefore the Conference finally stipulated that each time a prisoner who is not detained as a prisoner of war is to be judged for an offence related to the hostilities, (35) the intervention of a judiciary tribunal is required, even for deciding the status of the person concerned, if need be, as we shall see in the analysis of paragraph 2.

[p.553] 1746 ' In conclusion, ' it is obvious that in the present paragraph the authors of the Protocol intended to reduce to a minimum those cases in which a captor could arbitrarily deny the status of prisoner of war to a person who had been apprehended. To this purpose they introduced a complete set of legal presumptions which automatically operate in favour of persons who have been captured. By means of this system they have therefore reversed the burden of proof by putting it on a "competent tribunal", in contrast with Article 5 of the Third Convention. It is up to this tribunal to furnish proof to the contrary every time that the presumption exists and it wishes to contest it. This will often be difficult, not least when it is a question of proving that the person who has been apprehended does not belong to the armed forces on which he is deemed to depend. (36)

1747 However, the captor can also cast doubt by referring directly to Article 43 ' (Armed forces) ' and by alleging that the armed forces of the adverse Party may not qualify as such. (37) This problem was not resolved by the presumptions of this provision.

1748 Finally, without casting any doubt on the status of the armed forces of the adverse Party and the membership of the person concerned of these armed forces, the captor might have his own ideas regarding the way in which Articles 43 ' (Armed forces), ' 44 ' (Combatants and prisoners of war), ' paragraph 3, 46 ' (Spies), ' and 47 ' (Mercenaries) ' should be interpreted. Some did not fail to point out this danger, (38) which is all the more real as unrestrained guerrilla operations can imperil the whole regime of occupation introduced in the fourth Convention.

1749 As regards the commander in the field, he has no alternative but to either release the captive (for example, if he considers that the latter is obviously a civilian and in no way implicated in any hostile act) or to treat him as a prisoner [p.554] of war. In this case the captive is not in principle released until the end of the hostilities.

Paragraph 2 -- The conditions under which a person who is not held as a prisoner of war can be tried

1750 Under the system of the 1949 Conventions, when a person has been classified as a civilian by the "competent tribunal" (which, it should be remembered, may be an administrative authority) of Article 5 , paragraph 2, of the Third Convention, he falls under the protection of the fourth Convention. However, if he has committed hostile acts, he may become liable to proceedings or even serious sanctions on the basis of Article 68 of this Convention. (39) This only guarantees the person concerned trial by a military, non-political tribunal that is properly constituted (Article 66 ), in accordance with general principles of law (Article 67), in the course of a regular procedure (Articles 71 -75), with the right of attendance of the Protecting Power, apart from exceptional cases (Article 74 ). (40) If the person concerned has indeed committed hostile acts, the determination made by the "competent tribunal" continues to determine his fate, as stated above. It is with regard to this point that the paragraph under consideration here radically modifies the system established in 1949.

' First sentence -- The right of the accused to assert his entitlement to prisoner-of-war status '

1751 If the prisoner-of-war status of the person concerned, and consequently his combatant status, have not or have not yet been established, he runs a double risk:

a) to be accused of acts which are not necessarily offences (in the case of simply participating in the hostilities);
b) to be deprived of the procedural guarantees to which prisoners of war are entitled, even when the acts of which he is accused are punishable. (41)

Thus it becomes essential for the accused to have the opportunity to assert his entitlement to prisoner-of-war status under such condition as will provide all generally recognized guarantees as to proper judiciary procedures. It would [p.555] undoubtedly have been easier, in theory, to provide for such guarantees right at the first stage, when the status of prisoners is determined by the "competent tribunal". However, as we have seen, it did not seem feasible to burden a tribunal called upon to intervene on the battlefield with such a difficult task.

1752 However, as the Rapporteur of Committee III indicated, it is a fact that this provision establishes

"a new procedural right [...] for persons who are not considered prisoners of war and who are to be tried for ai criminal offense arising out of the hostilities. Such persons are given the right to assert their entitlement to prisoner-of-war status and to have that question adjudicated de novo by a judicial tribunal, without regard to any decision reached pursuant to paragraph 1. [...] The judicial tribunal may be either the same one that tries the offence or another one. It may be either a civilian or military tribunal, the term judicial meaning merely a criminal tribunal offering the normal guarantees of judicial procedure." (42)

1753 In the first instance, the tribunal called upon to decide the prisoner-of-war status of the accused may be either a civilian or a military tribunal. However, it seems quite logical to admit that from the moment that the prisoner-of-war status is recognized vis-à-vis the person concerned, Articles 84 and 102 of the Third Convention apply if the accusation is maintained. This means that strictly speaking the prisoner of war can only be tried by a military tribunal acting according to procedures which guarantee him the rights and means of defence provided for by the Third Convention. Moreover, the composition of the tribunal and the procedure must be the same as for members of the armed forces of the Detaining Power. (43) Finally, the fundamental guarantees laid down in paragraphs 4, 7 and 8 of Article 75 ' (Fundamental guarantees) ' must be fulfilled. To deprive a prisoner of war of his right to be tried correctly and impartially constitutes a grave breach of both the Third Convention and the Protocol (Article 85 -- ' Repression of breaches of this Protocol, ' paragraph 4(e)).

1754 However, there is no guarantee that it will be possible to determine the prisoner-of-war status of the person concerned before the judgment is taken on the offence of which he is accused, as evidenced by the second sentence of this paragraph. As we saw in the analysis of paragraph 1, the offence for which he is charged may depend on factual evidence which may be interpreted in the light of national legislation (Third Convention -- Article 85 ; fourth Convention, Article 64 ) which must conform with the applicable international rule. If the national legislation merely transcribes the international rule, the tribunal should apply the [p.556] latter. (44) It is no less true that the entitlement to prisoner-of-war status of the accused may depend not only on facts, for example, the submission of a list, but also on the interpretation given to the rules of the Protocol by the Detaining Power, whether this concerns Articles 43 ' (Armed forces) ' and 44 ' (Combatants and prisoners of war), ' or even Article 1 ' (General principles and scope of application), ' paragraph 4. Thus a formidable barrier may present itself to the accused, if the respective interpretations of the Parties to the conflict diverge too widely. However, the fact remains that the tribunal called upon to determine the status must be a judicial tribunal providing all the requisite guarantees, (45) whether these are pursuant to the Third or the fourth Convention and, otherwise, pursuant to Article 75 ' (Fundamental guarantees). '

' Second sentence -- The preliminary nature of the procedure to determine status '

1755 There is no doubt that in principle it is preferable to determine the status of the accused with regard to the protection of the Third Convention, i.e., to make a decision regarding his status as a combatant and prisoner of war, before deciding on the merits of the case. In the case of an affirmative finding, the charges will automatically lapse if the person concerned is simply being tried for participation in the hostilities. If the accusation is related to a violation of the rules governing the conduct of hostilities, the status of prisoner of war guarantees the accused the benefit of all procedural provisions laid down in the Third Convention. However, the Rapporteur stated:

"In view of the great differences in national judicial procedures, it was not thought possible to establish a firm rule that this question must be decided before the trial for the offense, but it should be so decided if at all possible, because on it depend the whole array of procedural protections accorded to prisoners of war by the Third Convention, and the issue may go to the jurisdiction of the tribunal." (46)

[p.557] Thus it is this aspect of the problem that is meant by the phrase "whenever possible under the applicable procedure". However, it is true that the problem can be a complex one in the sense that in certain cases it will only be possible to determine the status of the person concerned by deciding first on the merits of the accusation (compliance with the conditions relating to the open carrying of arms etc.: see supra, p. 538). (47) Moreover, the accused has a right of appeal whether he is tried as a prisoner of war or as a civilian (Third Convention, Article 106 ; fourth Convention, Articles 126 and 73 ).

1756 As regards the procedure followed by the tribunal, it should be remembered, and indeed it is touched on in this provision, that it should either, as a minimum, be in accordance with the corresponding rules of the fourth Convention (Articles 64 -75) (for, failing prisoner-of-war status, and until such status may be accorded him, the accused is protected by this Convention) or it should comply with the rules of Article 75 ' (Fundamental guarantees) ' of the Protocol. In fact, it is possible that the protection of the fourth Convention may be denied the accused, at least at this stage of the proceedings, for example, if he has the nationality of the captor. For wars of national liberation the criterion of nationality is inoperative. However, to deprive a person protected by this provision of his right to a fair and regular trial, even when his prisoner-of-war status has not yet been determined, constitutes a grave breach (Article 85 -- ' Repression of breaches of this Protocol, ' paragraphs 2 and 4(e)).

' Third sentence -- Right of the Protecting Power to attend the proceedings '

1757 As regards the text, this rule reproduces almost literally Article 105 , paragraph 5, first sentence, of the Third Convention and Article 74 , paragraph 1, of the fourth Convention. Its inclusion in this article is justified by the fact that it covers the proceedings concerned with the right of the accused to prisoner-of-war status, proceedings which should in principle precede those relating to the offence itself, as we have just seen. Reference should also be made to the commentary on Article 105 of the Third Convention. (48)

' Fourth sentence -- Notification of proceedings '

1758 This rule also reproduces the text of Article 105 , paragraph 5 (second sentence), of the Third Convention, for the same reasons as those indicated above. This notification procedure is set out in detail in Article 104 of the Third [p.558] Convention (49) (and Article 71 , paragraph 4, of the fourth Convention). These rules are also applied in the context of the present Article 45 , at least to the extent that the situation requires it (principle of effectiveness). (50)

Paragraph 3 -- The conditions under which a person who is not entitled to prisoner-of-war status may be put on trial

1759 This paragraph relates to persons who, while being prosecuted for their participation in hostilities, are refused prisoner-of-war status.

1760 However, it should be noted straight away that this paragraph does not cover combatants who are denied prisoner-of-war status by application of paragraph 4 of Article 44 ' (Combatants and prisoners of war). ' The latter in fact continue to fall under the scope of the procedural guarantees of the Third Convention, whereas the provision under consideration here concerns persons who are refused these guarantees. It may apply, for example, to persons who simply do not belong to armed forces constituted in accordance with the requirements of the Protocol (Article 43 -- ' Armed forces ') or even to spies or mercenaries. (51) In addition, the paragraph provides for an explicit derogation from the régime introduced by the fourth Convention for occupied territories.

' First sentence -- Fundamental guarantees '

1761 In armed conflict with an international character, a person of enemy nationality who is not entitled to prisoner-of-war status is, in principle, a civilian protected by the fourth Convention, so that there are no gaps in protection. However, things are not always so straightforward in the context of the armed conflicts of Article 1 ' (General principles and scope of application), ' paragraph 4, as the adversaries can have the same nationality. (52) Moreover, the concept of alien occupation often becomes rather fluid in guerrilla operations as no fixed legal border delineates the areas held by either Party, and this may result in insurmountable technical difficulties with regard to the application of some of the provisions of the fourth Convention. (53) This is one of the reasons why the paragraph under consideration here provides that in the absence of more favourable treatment in accordance with the fourth Convention, the accused is [p.559] entitled at all times to the protection of Article 75 of the Protocol ' (Fundamental guarantees). ' This rule is confirmed in paragraph 7(b) of the said Article 75 . (54) However, it is also possible that, without being denied the protection of the fourth Convention, the accused may fall under the scope of Article 5 of the same Convention, which lays down some important derogations. In this case the guarantees of Article 75 ' (Fundamental guarantees) ' continue to apply in their entirety. (55) Finally, the latter also apply to the person concerned when the fourth Convention as a whole applies to him, whenever the treatment resulting from this would be more favourable to him, whether or not the crimes of which he is accused are grave breaches of the Conventions or the Protocol (Article 75 -- ' Fundamental guarantees, ' paragraph 7(b)). This also applies, for example, to aliens in the territory of a Party to the conflict who may have taken part in hostilities against this Party, as the fourth Convention does not indicate what judicial guarantees they are entitled to.

' Second sentence -- Occupied territory '

1762 This provision is concerned only with occupied territory and those persons with regard to whom the application of the fourth Convention is not in dispute. Except as regards spies, it effectively cancels the second paragraph of Article 5 of this Convention, which provides that where:

"an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention."

1763 Thus we see here the abrogation of an important concession made in 1949 for reasons of state, a concession which made it possible to keep certain detained persons secretly. However, it does not apply to persons detained for espionage, as the Conference considered that it would not be realistic to try to guarantee a spy's right to communicate.

1764 The other provisions of Article 5 of the fourth Convention are not affected by this paragraph and consequently still apply, (56) at least to the extent that they do not conflict with the fundamental guarantees of Article 75 ' (Fundamental guarantees), ' paragraph 7(b).

' J. de P. '


(1) [(1) p.545] Cf.O.R. XIV, p. 475, CDDH/III/SR.33-36, Annex, para. 1;

(2) [(2) p.545] Ibid., p. 486, para. 11; it was obviously a case of finding a way of overcoming the differences of opinion and the uncertainty to which Article 44 could give rise in its application (in this sense, see O.R. XIV, p. 527, CDDH/III/SR.33-36, Annex, para. 9);

(3) [(3) p.545] This concerned, more in particular, the amendment CDDH/III/260, and Add.1, presented by sixteen delegations which, in its entirety, lies at the root of this article (O.R. III, p. 200). Another amendment (CDDH/III/256) provided in particular that non-fulfilment of the conditions provided for in Art. 43, para. 1, first sentence, "may only be presumed if it has become clear from declarations or instructions emanating from the responsible command of an irregular force or from declarations of its members that the force is not willing or able to respect the rules and principles of international law applicable in armed conflict" (O.R. III, p. 183); yet another amendment (CDDH/III/82) provided that combatants who are not covered by the Protocol shall "be afforded guarantees not less favourable than those laid down in Article 3, common to the Conventions" (O.R. III, p. 180);

(4) [(4) p.545] Cf., for example, Art. 88 of the Swiss Military Penal Code. In fact, during the course of the Second World War, many of these partisans who were captured were shot without any formalities; see W. Schätzel, "Le franc-tireur capturé a-t-il droit à un jugement régulier?", 17 ' Revue internationale française du droit des gens ', 1948, pp. 18-19;

(5) [(5) p.545] O.R. XIV, p. 485, CDDH/III/SR.33-36, Annex, para. 5;

(6) [(6) p.545] On this problem, see the work of P. Boissier, ' L'épée et la balance, ' Geneva, 1953, in particular pp. 65-96, and also infra, note 38;

(7) [(7) p.546] There is an excellent exposé of the origin of this provision in an article by G. Genot, a member of the Belgian delegation at the Conference, "Quelques garanties nouvelles offertes au combattant capturé", 13 ' RBDI, ' Nos. 1-2, 1977, pp. 298-313;

(8) [(8) p.546] On this point, see also supra ad Art. 39, para. 2, p. 465;

(9) [(9) p.546] Such identity cards do not in any way establish a person's status as a member of the armed forces, but simply represent a piece of evidence;

(10) [(10) p.546] See commentary Art. 44, para. 3, supra, pp. 527 and 533;

(11) [(11) p.547] O.R. XIV, p. 492, CDDH/III/SR.33-36, Annex, para. 15. To save oneself and sacrifice the others, or to sacrifice oneself and save the others is a dilemma in which many resistance fighters found themselves;

(12) [(12) p.547] The rule can also gain significance in other situations; for example, an escaped prisoner of war in civilian clothes who has been recaptured, a pilot whose aircraft has been brought down and who is wearing a flying suit similar to civilian dress, shipwrecked persons, civilians authorized to accompany the armed forces who have lost their identity card. What about the many civilians who are employed on large military bases and who live there, sometimes with their whole family? The problem does not yet seem to have been resolved, but warrants a solution;

(13) [(13) p.548] O.R. VI, p. 189, CDDH/III/SR.41;

(14) [(14) p.548] O.R. XV, p. 433, CDDH/III/338;

(15) [(15) p.548] In practice, it is above all since the Algerian conflict that combatants captured while carrying weapons in their hands (known in France as "PAM", for "pris les armes à la main") were considered as prisoners of war. However, in Malaysia and Kenya the British gave similar treatment only to guerrilla fighters who voluntarily surrendered. In Viet Nam from 1965 the United States granted not only the treatment, but also the status of prisoner of war to combatants of the NLF (National Liberation Front) captured while carrying weapons in their hands. The same applied to all those for whom there was any evidence to show that they belonged to a military unit, even a secret one, and who had taken part in an act of war of any nature, including propaganda or protection missions etc., whether these were full-time or part-time activities (see M. Veuthey, ' Guérilla et droit humanitaire ', op. cit., pp. 226-232 and in note 195 on p. 231 the relevant official sources);

(16) [(16) p.549] It is essential that such services, sometimes consisting of military police units, and which are often granted an authority similar to that of the commanding officer at the place of capture, have a thorough knowledge of the applicable rules, i.e., the appropriate rules of the Geneva Conventions and the Protocol;

(17) [(17) p.549] Obviously this does not exclude the granting of the status of prisoner of war when there is occasion for this, for example, by the application of Article 4A (4) and (5) of the Third Convention, or Article 67, paragraph 2, of this Protocol. As regards medical and religious personnel, see the Third Convention, Article 4C and Article 33. In other cases the person is a civilian who will be simply released or considered as a civilian internee (Fourth Convention, Art. 78);

(18) [(18) p.549] The same applies, even if there may have been a conviction, in accordance with Article 85 of the Third Convention, except for those countries which have made a reservation on this point (see supra ad Art. 44, note 19);

(19) [(19) p.550] Provided of course that the doubt does not relate to either the legitimacy of the Party to the conflict which makes the claim (see supra ad Art. 43, p. 507), or to the armed forces of this Party being subject to an internal disciplinary system which ensures that the rules of international law applicable in the case of armed conflict are complied with (Art. 43, para. 1, second sentence). If there are such doubts, a claim by such a Party or quasi-Party to the conflict could do more harm than good. Moreover, the possibility is not excluded that the prisoner might rightly or wrongly contest the claim presented in this way;

(20) [(20) p.550] See ' Commentary III, ' pp. 155 ff., in particular, pp. 173-174;

(21) [(21) p.550] For the conflict in Viet Nam, where similar rules were applied, see "Contemporary Practice of the United States Relating to International Law", 62 AJIL, 1968, p. 767;

(22) [(22) p.551] Cf., for the Second World War, the declaration of General Eisenhower of 15 July 1944, whereby he recognized the French Forces of the Interior, and took them under his command (see L. Nurick and R. Barnett, "Legality of Guerilla Forces Under the Laws of War", 40 AJIL, 1946, p. 581);

(23) [(23) p.551] It should be noted that since the person concerned should be treated as a prisoner of war, even in cases of doubt, no form of coercion may be inflicted to secure information (Third Convention, Art. 17, paragraph 4);

(24) [(24) p.551] In this respect the following case was mentioned, namely, where it has become clear from statements or instructions emanating from the responsible command of the irregular force or from statements of its members, that the force is not willing or able to respect in its operations the rules and principles of international law applicable in armed conflict (O.R. XIV, p. 473, CDDH/III/ SR.33-36, Annex, para. 7 and supra note 3). However, the same representative considered that too easily evidence to the contrary might be concluded by following an inductive reasoning, that since some members of the force (how many? two, five, twenty?) have violated one or more rules of international law applicable in armed conflict, this can be attributed to the whole irregular force as its general policy, even if one has no idea about the actual size of the force (ibid., para. 6). However, also see supra, note 3, and ad Art. 43, para. 1, in particular p. 513;

(25) [(25) p.551] ' Commentary Drafts ', p. 52 and supra, ad Art. 44, para. 1, p. 523;

(26) [(26) p.551] This article of the Third Convention represents an important step forward, but not because persons who have committed a belligerent act without belonging to any of the categories listed in Article 4 of the Third Convention thereby escape sanctions. Recognized as civilians by the "competent tribunal", they henceforth fall under the Fourth Convention, and in fact Article 68 does not exclude sanctions and even capital punishment for illegal participation in hostilities. Furthermore it is self-evident as shown above, that this "competent tribunal" will be all too likely to consider the facts from its own point of view and to interpret the rules in accordance with its own ideas, even though Article 4 of the Third Convention is clearer in its wording than some of the text of Article 44 of the Protocol. However, at least all captives are given the assurance that their case will be examined, that the real position of those who have not in fact committed any belligerent act will be recognized, and that they will not be executed without a tribunal set up according to the rules (Fourth Convention, Art. 66) has had a chance to judge the case;

(27) [(27) p.552] See ' Commentary III, ' p. 77;

(28) [(28) p.552] Experience of the Second World War had shown that decisions regarding the right of a captive to benefit or not from the protection of the Convention Relative to the Treatment of Prisoners of War had sometimes simply been taken by non-commissioned officers, particularly corporals. See J.-P. Maunoir, op. cit., p. 191;

(29) [(29) p.552] O.R. XV, p. 392. CDDH/236/Rev. 1, para. 48. In the conflict in Viet Nam the United States delegated this task of the classification of captives to tribunals consisting of three officers. In general it is considered that those who pronounce judgment on the conduct of members of the armed forces should be qualified, and, for example, that only officers of at least equal rank can judge the conduct of an enemy commanding officer (cf., for example, the guarantees of Art. 102 of the Third Convention) and that the participation of at least one officer trained in law is essential (cf. W.H. Parks, "The Law of War Adviser", 31 ' The JA G Journal ', No. 1, Summer, 1980, p. 14);

(30) [(30) p.552] For examples, see M. Greenspan, op. cit., p. 505, and 4 ' Law Reports ', pp. 38 ff;

(31) [(31) p.552] O.R. XIV, p. 472, CDDH/III/SR.33-36, Annex, para. 5;

(32) [(32) p.552] Ibid., p. 484, para. 4;

(33) [(33) p.552] Ibid., p. 488, para. 11; p. 362, CDDH/III/SR.35, para. 25; and p. 350, CDDH/III/SR.34, para. 82;

(34) [(34) p.552] For this reason, for example, a requirement allowing the Protecting Power to be present at the deliberations was considered to be impossible;

(35) [(35) p.552] Unlike a civilian, a prisoner of war is obviously not liable for any sanctions for his participation in hostilities. In the case of violations committed before his capture, the judicial guarantees of the Third Convention, Arts. 82 ff., are assured;

(36) [(36) p.553] This is a case of proving that something has not happened (' probatio diabolica '), which, in the large majority of cases, has proved to be impossible (see J.- P. Maunoir, op. cit., in particular p. 440);

(37) [(37) p.553] Without referring to the problem that may arise about the status of the Party to the conflict itself, for example, when this is a contested national liberation movement. Also see supra, note 19, and Y. Sandoz, "La place des Protocoles additionnels aux Conventions de Genève du 12 août 1949 dans le droit humanitaire", ' Revue des droits de l'homme ', 1978, pp. 138 ff.;

(38) [(38) p.553] "While the policy of Protocol I represents a broad international consensus, its administration is substantially national in many important respects. Thus the criteria of articles 1, 43, 44, 46 and 47 are to be interpreted and applied in practice by the enemy power that has captured the individual who claims privileged combatant status. The temptation to indulge in idiosyncratic national interpretations exists during peacetime. In time of international conflict, immediate military advantage, or national misperceptions concerning it, can lead to interpretations that would substantially frustrate the policy of Protocol I. An enlightened and aroused world public opinion, however, can promote the achievement of human rights by making an impact on national decision makers even in wartime. In the same way, public opinion can compel states-parties to the Protocol 'to respect and to ensure respect for this Protocol in all circumstances'. An effective sanctioning process, like the multilateral law-making process in Geneva from 1974-1977, is dependent upon the identification and implementation of common values, not upon common ideologies." (W.T. Mallison and S.V. Mallison, op. cit., p. 31). The consensus procedure can justifiably be reproached for sometimes resulting in flexible texts which permit very different interpretations. However, it should also be taken into account that those who are involved in armed conflict are very often those who do not share the same ideas, and that texts adopted by majority vote would be even less helpful;

(39) [(39) p.554] Article 70 of the Fourth Convention provides that protected persons may be prosecuted or convicted for breaches of the laws and customs of war;

(40) [(40) p.554] Since before 1949 the spy and the prisoner of war who have been liberated on parole and later have taken up arms in contravention of their word can only be punished by tribunals, according to international law (Hague Regulations, Arts. 12 and 30). This did not apply to civilians who had illegally participated in hostilities to the extent that in Nuremberg the guilt for absence of judicial procedure was not retained in this case (W. Schätzel, op. cit., p. 19);

(41) [(41) p.554] This preoccupation was already included in Article 42, paragraph 2 of the draft submitted by the ICRC: "Members of a resistance movement who violate the Conventions and the present Protocol shall, if prosecuted, enjoy the judicial guarantees provided by the Third Convention and, even if sentenced, retain the status of prisoner of war;

(42) [(42) p.555] O.R. XV p. 433 CDDH/III/338. At this stage administrative authorities, military or other commissions were therefore excluded (see supra, note 29);

(43) [(43) p.555] As a general rule codes of military justice provide that the composition of a tribunal depends on the rank of the accused (see for examples, the French Military Code of Justice, J.-P. Maunoir, op. cit., pp. 159-161 and on the controversies which resulted from these problems after the Second World War, not only in France but also in the United States, ibid., pp. 162-173);

(44) [(44) p.556] However, the tribunal is not entirely free, for it seems to be agreed that it must conform with the official interpretation of the government whenever treaty provisions in dispute are concerned with questions of international public order (see the joint session of the Chambers of the French ' Cour de Cassation ', cited by J.-P. Maunoir, op. cit., p. 170). On the general problem of the concept of direct application of international law, particularly as regards the so-called "non-self-sufficient" rules and their interpretation, J. Verhoeven, "La notion d''applicabilité directe' du droit international", 15 RBDI, 1980-2, p. 243, at pp. 248-249, and W.J. Ganshof Van der Meersch, "La règle d'application directe", ibid., p. 345;

(45) [(45) p.556] Aware of the problems, the sponsors of amendment CDDH/III/260 and Add. 1 had provided: "4. In the event that there is no Protecting Power, any notification required by Article 104 of the Third Convention or by Article 71 of the Fourth Convention shall be given to the International Committee of the Red Cross. On receipt of such a notification, that Committee shall be entitled to exercise all the functions of a Protecting Power in relation to the trial of the person in respect of whom the notification has been given." (O.R. III, p. 190). However, some delegations were utterly opposed to this proposal, Nevertheless, the intervention of the ICRC still remains possible pursuant to Article 9 or even 10 of the Third Convention and Articles 5 and 81 of the Protocol;

(46) [(46) p.556] O.R. XV, p. 433, CDDH/III/338;

(47) [(47) p.557] Cf. the remark of one delegation: "Paragraph 2 obliged the tribunal seized with an offence arising out of the hostilities to admit any objections by the accused to the effect that he had been entitled to participate in combat. Such plea must be examined in accordance with judicial, not administrative, procedures, and, if possible, on a preliminary basis" (ibid., p. 95, CDDH/III/SR. 47, para. 56);

(48) [(48) p.557] ' Commentary III, ' p. 491;

(49) [(49) p.558] See ' Commentary III, ' pp. 480-484;

(50) [(50) p.558] Committee III was divided with regard to the question whether this paragraph should not preferably be included in Article 75 (Fundamental guarantees) (see O.R. XV, p. 433, CDDH/III/ 338);

(51) [(51) p.558] See commentary Arts. 46 and 47, infra, pp. 561 and 571, as well as the second sentence of this paragraph;

(52) [(52) p.558] Article 4 of the Fourth Convention provides that "persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves in case of a conflict or occupation in the hands of a Party to the conflict or Occupying Power of which they are not nationals";

(53) [(53) p.558] Thus, for example, Article 66 providing that the court of the Occupying Power should sit in the occupied country;

(54) [(54) p.559] In the case of a war of national liberation one could think, in default of the application of the Fourth Convention, of those who claim allegiance to a Party to the conflict without forming part of its armed forces;

(55) [(55) p.559] For example, in favour of a spy with a foreign nationality who is not a member of the armed forces. In the territory of a Party to the conflict such derogations could refer to "rights and privileges" which, if exercised, would be prejudicial to the security of the State (Fourth Convention, Art. 5, para. 1);

(56) [(56) p.559] For a commentary on this article, which reveals some differences between the French and the English versions, see ' Commentary IV ', pp. 52-58;