Practice Relating to Rule 106. Conditions for Prisoner-of-War Status
Section C. Situations where combatants cannot distinguish themselves
New Zealand’s Military Manual (1992) states:
By Article 44, with a view to ensuring protection of the civilian population, combatants are required to distinguish themselves from that population when engaged in an attack or preparing to mount an attack. Under the [Hague Regulations] this distinction depended upon a recognisable emblem and the carrying of arms openly. In case of State’s regular forces, the uniform worn by the forces strengthens the distinction. Art. 44(3) of the Protocol, however, recognizes that there may be situations when, owing to the nature of the hostilities, an armed combatant cannot distinguish himself from the civilian population, either by recognizable marks or by his arms although he is required to carry his arms openly during an engagement or while visible during deployment prior to an attack.
The Manual further states that the situations to which the rule contained in the second sentence of Article 44(3) of the 1977 Additional Protocol I applies are
special and exceptional. Many States, including New Zealand in its ratification, have declared that these situations can occur only … during a war of self-determination conducted by a national liberation movement or in occupied territory.
With respect to the expression “visible to the adversary”, the manual states:
The text does not indicate whether they must be visible to the naked eye or whether it is sufficient for them to be seen with the aid of instruments. New Zealand’s declaration on ratification provided for the term to include “the assistance of any form of surveillance, electronic or otherwise, available to help keep a member of the armed forces of the adversary under observation.” While this view was shared by a number of Western States at the time of negotiation of [the 1977 Additional Protocol I], few States have made it the subject of an understanding: Australia, indeed, takes the view that visibility without electronic aids is a more appropriate interpretation.
With respect to the term “deployment”, the manual states: “Many States, including New Zealand on ratification [of the 1977 Additional Protocol I], have declared that this means any movement towards a place from which an attack is to be launched.”
Upon ratification of the 1977 Additional Protocol I, New Zealand stated:
It is the understanding of the Government of New Zealand that in relation to Article 44 of Protocol I, the situation described in the second sentence of paragraph 3 can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1. The Government of New Zealand will interpret the word “deployment” in paragraph 3(b) of the Article as meaning any movement towards a place from which an attack is to be launched. It will interpret the words “visible to the adversary” in the same paragraph as including visible with the aid of any form of surveillance, electronic or otherwise, available to help keep a member of the armed forces of the adversary under.