Rule 106. Conditions for Prisoner-of-War Status

Rule 106. Combatants must distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. If they fail to do so, they do not have the right to prisoner-of-war status.
State practice establishes this rule as a norm of customary international law applicable in international armed conflicts.
The requirement that combatants distinguish themselves from the civilian population is a long-standing rule of customary international law already recognized in the Brussels Declaration, the Oxford Manual and the Hague Regulations.[1] It was subsequently codified in the Third Geneva Convention and Additional Protocol I.[2]
Numerous military manuals specify that combatants must distinguish themselves from the civilian population.[3] This includes the manuals of States not, or not at the time, party to Additional Protocol I.[4] This obligation is also supported by a number of official statements and other practice.[5]
The Hague Regulations and the Third Geneva Convention state that members of regular armed forces are entitled to prisoner-of-war status, whereas members of militias and volunteer corps are required to comply with four conditions in order to benefit from such status.[6] Additional Protocol I imposes the obligation to distinguish oneself from the civilian population on all members of armed forces, whether regular or irregular.[7] Although it is not specifically stated in the Hague Regulations or the Third Geneva Convention, it is clear that regular armed forces have to distinguish themselves from the civilian population during a military operation. Additional Protocol I recognizes “the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict”,[8] although the Protocol, like the Hague Regulations and the Third Geneva Convention, does not explicitly make this a condition for prisoner-of-war status.
Several military manuals remark that the obligation to distinguish oneself does not pose a problem for the regular armed forces because it is “customary” or “usual” for members of the regular armed forces to wear a uniform as a distinctive sign.[9]
If members of regular armed forces do not wear a uniform, they risk being charged as spies or saboteurs.[10] In the Swarka case in 1974, an Israeli Military Court found that members of the Egyptian armed forces who had infiltrated Israeli territory and launched an attack in civilian attire were not entitled to prisoner-of-war status and could be prosecuted as saboteurs. The Court considered that it would have been illogical to regard the duty to distinguish oneself as applicable to irregular armed forces but not to regular armed forces, as the defendants had claimed.[11]
State practice indicates that in order to distinguish themselves from the civilian population, combatants are expected to wear a uniform or a distinctive sign and must carry arms openly. Germany’s Military Manual states, for example, that:
In accordance with the generally agreed practice of States, members of regular armed forces shall wear their uniform. Combatants who are not members of uniformed armed forces nevertheless wear a permanent distinctive sign visible from a distance and carry their arms openly.[12]
The US Air Force Pamphlet states that a uniform ensures that combatants are clearly distinguishable but that “less than a complete uniform will suffice provided it serves to distinguish clearly combatants from civilians”.[13] In the Kassem case in 1969, the Israeli Military Court at Ramallah held that the defendants sufficiently fulfilled the requirement of distinguishing themselves by wearing mottled caps and green clothes, as this was not the usual attire of the inhabitants of the area in which they were captured.[14]
With respect to carrying arms openly, the US Air Force Pamphlet states that this requirement is not fulfilled “by carrying arms concealed about the person or if the individuals hide their weapons on the approach of the enemy”.[15] In the Kassem case, the Court held that the condition of carrying arms openly was neither fulfilled in a case where the person carried the arms openly in places where they could not be seen nor by the mere fact of bearing the arms during a hostile engagement. The fact that the defendants used their weapons during the encounter with the Israeli army was not determinative, since no weapons were known to be in their possession until they started firing at Israeli soldiers.[16]
Participants in a levée en masse, namely the inhabitants of a country which has not yet been occupied who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having time to form themselves into an armed force, are considered combatants entitled to prisoner-of-war status if they carry arms openly and respect international humanitarian law. This is a long-standing rule of customary international law already recognized in the Lieber Code, the Brussels Declaration and the Hague Regulations.[17] It is also set forth in the Third Geneva Convention.[18]
While this exception may be considered of limited current application, it is still repeated in many military manuals, including very recent ones, and it therefore continues to be regarded as a valid possibility.[19]
According to Additional Protocol I, in situations of armed conflict where “owing to the nature of the hostilities an armed combatant cannot ... distinguish himself” from the civilian population while he is engaged in an attack or in a military operation preparatory to an attack, he shall retain his status as a combatant, provided 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.[20]
This rule was subject to much debate at the Diplomatic Conference leading to the adoption of the Additional Protocols, and Article 44 was, as a result, accepted by 73 votes in favour, one against and 21 abstentions.[21] The abstaining States generally expressed concern that this provision might have a negative impact on the civilian population. The United Kingdom, for example, stated that “any failure to distinguish between combatants and civilians could only put the latter at risk. That risk might well become unacceptable unless a satisfactory interpretation could be given to certain provisions.”[22] All but two of the abstaining States have in the meantime ratified Additional Protocol I without any reservation in this respect.[23]
In line with the need to arrive at a satisfactory interpretation, many States have tried to clarify the meaning of this exception and to clearly set out its limits. These limits are threefold. First, many States have indicated that the exception is limited to situations where armed resistance movements are organized, namely in occupied territories or in wars of national liberation.[24] Secondly, many States have indicated that the term “deployment” refers to any movement towards a place from which an attack is to be launched.[25] Thirdly, Australia, Belgium and New Zealand have further indicated that the term “visible” includes being visible with the aid of technical means and not just visible with the naked eye.[26] Egypt, supported by the United Arab Emirates, however, stated at the Diplomatic Conference leading to the adoption of the Additional Protocols that the term military deployment meant “the last step when the combatants were taking their firing positions just before the commencement of hostilities; a guerrilla should carry his arms openly only when within range of the natural vision of his adversary”.[27] The United States, which voted in favour of Article 44 of Additional Protocol I at the Diplomatic Conference, explained that the exception was clearly designed:
to ensure that combatants, while engaged in military operations preparatory to an attack, could not use their failure to distinguish themselves from civilians as an element of surprise in the attack. Combatants using their appearance as civilians in such circumstances in order to aid in the attack would forfeit their status as combatants.[28]
In the meantime, the United States has changed its position and voiced its opposition to this rule.[29] Israel voted against Article 44 of Additional Protocol I because paragraph 3 “could be interpreted as allowing the combatant not to distinguish himself from the civilian population, which would expose the latter to serious risks and was contrary to the spirit and to a fundamental principle of humanitarian law”.[30]
As stated in Additional Protocol I, combatants who fail to distinguish themselves and are not, as a result, entitled to prisoner-of-war status (and who do not benefit from more favourable treatment in accordance with the Fourth Geneva Convention) are, as a minimum, entitled to the fundamental guarantees set out in Chapter 32, including the right to a fair trial (see Rule 100).[31]
[1] Brussels Declaration, Article 9 (cited in Vol. II, Ch. 1, § 634); Oxford Manual, Article 2 (ibid., § 635); Hague Regulations, Article 1 (ibid., § 627).
[2] Third Geneva Convention, Article 4(A) (ibid., § 629); Additional Protocol I, Article 44(3) (cited in Vol. II, Ch. 33, § 1).
[3] See, e.g., the military manuals of Argentina (ibid., § 5), Australia (ibid., § 6), Belgium (ibid., § 7), Benin (ibid., § 8), Cameroon (ibid., § 9), Canada (ibid., § 10), Colombia (ibid., § 11), Croatia (ibid., §§ 12–13), France (ibid., § 15), Germany (ibid., § 16), Hungary (ibid., § 17), Israel (ibid., § 18), Italy (ibid., §§ 19–20), Kenya (ibid., § 21), Madagascar (ibid., § 22), Netherlands (ibid., § 23), New Zealand (ibid., § 24), South Africa (ibid., § 25), Sweden (ibid., § 26), Switzerland (ibid., § 27), Togo (ibid., § 28), United Kingdom (ibid., § 29) and United States (ibid., §§ 30–31).
[4] See, e.g., the military manuals of France (ibid., § 15), Israel (ibid., § 18), Kenya (ibid., § 21), United Kingdom (ibid., § 29) and United States (ibid., §§ 30–31).
[5] See, e.g., the statements of the Federal Republic of Germany (ibid., § 37), Italy (ibid., § 39), Netherlands (ibid., § 40) and United States (ibid., §§ 41–43) and the practice of Botswana (ibid., § 36) and Indonesia (ibid., § 38).
[6] Hague Regulations, Articles 1 and 3; Third Geneva Convention, Article 4(A) (cited in Vol. II, Ch. 1, § 629).
[7] Additional Protocol I, Article 44(3) (cited in Vol. II, Ch. 33, § 1).
[8] Additional Protocol I, Article 44(7) (ibid., § 1).
[9] See the military manuals of Australia (ibid., § 6), Belgium (ibid., § 7), Colombia (ibid., § 11), Germany (ibid., § 16), Kenya (ibid., § 21), Madagascar (ibid., § 22), Netherlands (ibid., § 23), New Zealand (ibid., § 24), South Africa (ibid., § 25), Sweden (ibid., § 26), Switzerland (ibid., § 27) and United Kingdom (ibid., § 29).
[10] See, e.g., United Kingdom, Military Manual (1958), §§ 96 and 331.
[11] Israel, Military Court, Swarka case (cited in Vol. II, Ch. 33, § 35).
[12] Germany, Military Manual (ibid., § 16).
[13] United States, Air Force Pamphlet (ibid., § 30).
[14] Israel, Military Court at Ramallah, Kassem case (ibid., § 34).
[15] United States, Air Force Pamphlet (ibid., § 30).
[16] Israel, Military Court at Ramallah, Kassem case (ibid., § 113).
[17] Lieber Code, Article 51 (ibid., § 52); Brussels Declaration, Article 10 (ibid., § 53); Hague Regulations, Article 2 (ibid., § 50).
[18] Third Geneva Convention, Article 4(A)(6) (ibid., § 51).
[19] See, e.g., the military manuals of Argentina (ibid., § 55), Australia (ibid., § 56), Belgium (ibid., § 57), Cameroon (ibid., § 58), Canada (ibid., § 59), Germany (ibid., § 60), Italy (ibid., § 61), Kenya (ibid., § 62), Madagascar (ibid., § 63), Netherlands (ibid., § 64), New Zealand (ibid., § 65), Nigeria (ibid., § 66), Russian Federation (ibid., § 67), South Africa (ibid., § 68), Spain (ibid., § 69), Switzerland (ibid., § 70), United Kingdom (ibid., § 71), United States (ibid., § 72) and Yugoslavia (ibid., § 73).
[20] Additional Protocol I, Article 44(3) (ibid., § 81).
[21] See the practice of the Diplomatic Conference leading to the adoption of the Additional Protocols (ibid., § 81).
[22] United Kingdom, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols (ibid., § 133); see also the statements of Argentina (ibid., § 114), Brazil (ibid., § 115), Canada (ibid., § 116), Colombia (ibid., § 117), Ireland (ibid., § 123), Italy (ibid., § 126), Japan (ibid., § 127), Portugal (ibid., § 129), Spain (ibid., § 130), Switzerland (ibid., § 131) and Uruguay (ibid., § 134). Canada and Italy abstained in the vote and stated that the text might be acceptable if its terms could be better defined.
[23] The Philippines and Thailand abstained in the vote and have not yet ratified Additional Protocol I.
[24] See the statements made at the Diplomatic Conference leading to the adoption of the Additional Protocols by Canada (ibid., § 116), Egypt (ibid., § 118), Germany (ibid., § 119), Greece (ibid., § 121), Islamic Republic of Iran (ibid., § 122), Italy (ibid., § 126), Japan (ibid., § 127), United Kingdom (ibid., § 133) and United States (ibid., § 135) and the statements made upon ratification/signature of Additional Protocol I by Australia (ibid., § 83), Belgium (ibid., § 83), Canada (ibid., § 83), France (ibid., § 83), Germany (ibid., § 83), Ireland (ibid., § 83), Italy (ibid., § 84), Republic of Korea (ibid., § 83), Spain (ibid., § 84) and United Kingdom (ibid., § 83); the military manuals of Belgium (ibid., § 102), France (ibid., § 93), Germany (ibid., § 103), Italy (ibid., § 104), Netherlands (ibid., § 106), New Zealand (ibid., § 107), Spain (ibid., § 97), Sweden (ibid., § 109) and United Kingdom (ibid., § 110).
[25] See the statements made at the Diplomatic Conference leading to the adoption of the Additional Protocols by Canada (ibid., § 116), Germany (ibid., § 119), Japan (ibid., § 127), Netherlands (ibid., § 128), United Kingdom (ibid., § 133) and United States (ibid., § 135), the statements made upon ratification/signature of Additional Protocol I by Australia (ibid., § 85), Belgium (ibid., § 85), Canada (ibid., § 85), France (ibid., § 85), Germany (ibid., § 85), Ireland (ibid., § 85), Italy (ibid., § 85), Republic of Korea (ibid., § 85), Netherlands (ibid., § 85), New Zealand (ibid., § 85), Spain (ibid., § 85), United Kingdom (ibid., § 85) and United States (ibid., § 85) and the military manuals of Belgium (ibid., § 102), Germany (ibid., § 103), Italy (ibid., § 104), Kenya (ibid., § 105), Netherlands (ibid., § 106), New Zealand (ibid., § 107), South Africa (ibid., § 108), Spain (ibid., § 97) and United Kingdom (ibid., § 110).
[26] See the statements made upon ratification of Additional Protocol I by Australia (ibid., § 86) and New Zealand (ibid., § 87) and the military manuals of Belgium (ibid., § 102) and New Zealand (ibid., § 107).
[27] Egypt, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols (ibid., § 118); see also the statement of the United Arab Emirates (ibid., § 132).
[28] United States, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols (ibid., § 135).
[29] See the statements of the United States (ibid., §§ 136–137).
[30] Israel, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols (ibid., § 124).
[31] Additional Protocol I, Article 45(3) (adopted by consensus) (ibid., § 82).