Practice Relating to Rule 106. Conditions for Prisoner-of-War Status
Section C. Situations where combatants cannot distinguish themselves
Germany’s Military Manual (1992) states:
Recognizing that there are situations in occupied territories and in wars of national liberation where, owing to the nature of the hostilities, a combatant (especially a guerillero) cannot so distinguish himself from the civilian population, he shall retain his status as a combatant provided that, in such situations, he carries his arms openly:
(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
The term “military deployment” refers to any movement towards the point from which an attack shall be launched.
In reply to a written question in Parliament in 1977, a German Minister of State emphasized that the German delegation present during the negotiation of the Additional Protocols favoured the inclusion of a rule imposing a duty on guerrillas to carry arms openly in combat, as well as during the phase preceding an attack. According to Germany, a clear distinction between civilians and combatants was absolutely necessary, even in the context of guerrilla warfare.
Upon ratification of the 1977 Additional Protocol I, Germany stated:
The criteria contained in the second sentence of Article 44, paragraph 3, of Additional Protocol I for distinction between combatants and the civilian population are understood by the Federal Republic of Germany to apply only in occupied territories and in the other armed conflicts described in Article 1, paragraph 4. The term “military deployment” is interpreted to mean any movements towards the place from which an attack is to be launched.