Practice Relating to Rule 106. Conditions for Prisoner-of-War Status
Section C. Situations where combatants cannot distinguish themselves
Italy’s IHL Manual (1991) states:
In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, 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.
At the CDDH, Italy abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) “essentially because of the ambiguity of paragraphs 3 and 4 of Article 42”, but considered that “the article was not unacceptable in itself if its true meaning … could be detected”.
Italy further stated that the particular situations to which the second sentence of the third paragraph referred “were evidently those which occurred in occupied territory or in other identical situations so far as substance was concerned, that was to say where resistance movements were organized”.
Upon ratification of the 1977 Additional Protocol I, Italy stated:
The situation described in the second sentence of paragraph 3 of Article 44 can exist only in occupied territory.
The word deployment in paragraph 3 (b) means any movement towards a place from which an attack is to be launched.