Practice Relating to Rule 106. Conditions for Prisoner-of-War Status
Section C. Situations where combatants cannot distinguish themselves
Israel’s Manual on the Laws of War (1998) states:
Undoubtedly, the conditions mentioned [in Article 4(A)(2) of the 1949 Geneva Convention III] make it very difficult for non-regular forces for which, in many cases, the fulfilment of the cumulative conditions of openly bearing arms and wearing a recognizable distinctive sign may be suicidal. Still, these are the necessary conditions called for in conducting a regular war between combatant forces, without dragging the population into the conflict.
In an effort to extend the protection accorded to include non-regular combatants, the Additional Protocols from 1977 drastically scaled back the conditions for defining a legal combatant. These protocols established that it is sufficient for an underground fighter to bear his arms openly during a military operation and for the duration that he is visible to the enemy, omitting all the other conditions. More seriously, the Protocols state that even non-compliance with the laws of war does not in itself deprive the non-regular combatant of his right to prisoner-of-war status … Clearly, such provisions deplete the provisions of the Geneva Convention of all substance, since we are losing sight of the primary goals for which such requirements were intended, namely the mutual observance of the laws of war and the distinction between combatants and the civilian population as well as the concealment of combatants among the civilian population.
We find then that, in effect, the Additional Protocols grant prisoner-of-war protection to any terrorist group that is organized and under the direct command of a commander in charge of his subordinates. Obviously, countries that find themselves embroiled in a struggle with terrorist groups have not adopted these provisions, which is one reason why many countries (including Israel and the U.S.) have not ratified the Additional Protocols. Claims made by terrorists before the IDF’s [Israel Defense Forces’] military courts that they are entitled to prisoner-of-war status have been rejected.
Israel’s Manual on the Rules of Warfare (2006) states:
Legitimate and illegitimate combatants. Being a member of the combatant forces entitles a combatant to special rights when he exits the theatre of war by surrendering, falling into captivity, being wounded or losing the ability to fight. Such a combatant receives the status of prisoner-of-war (POW) entitling him to medical treatment, protection against physical and mental attack and from prosecution for actions committed in battle. The bodies of the fallen must not be desecrated and they must be given suitable burial. More than once, a fighting army, and certainly the IDF [Israel Defense Forces] among it, has had to deal with terrorists who present themselves as civilians and claim the status of “freedom fighter”. In practice, such irregular fighters attempt to acquire the status of combatants without accepting the obligations and limitations by which regular fighters are bound. For this reason, considerable importance is attributed to distinguishing between these two groups.
One of the most important attributes in the differentiation between a legitimate combatant and an illegitimate one is in the question of prosecution. Operations undertaken in time of war by soldiers, even if they include the killing of soldiers on the other side and causing them serious injury, are not deemed to be criminal offences, and the rules of war prohibit putting such soldiers on trial (for example, the show trials in which the Vietnamese put American prisoners-of-war on trial for “crimes against the Vietnamese people” were illegal). The assumption is that the soldier was sent to war legitimately under the laws of his country, and he had no choice in the matter. This defence of the rules of war is only granted to legitimate fighters. The illegitimate fighter is not entitled to any protection against being prosecuted under the laws of the country that captured him. An illegitimate fighter, even if he performs acts that are permissible for a legitimate fighter, such as attacking a military target, will be put on trial for the actions he committed. A legitimate fighter performing similar actions would not be put on trial but would be held as a prisoner-of-war.
This distinction is designed to prevent civilians from taking part in military actions that they are forbidden to perform and to prevent soldiers or paramilitaries from hiding among the civilian population. This is how it will make it easier for the fighting army to provide the obligatory protection for the civilian population.
The Third Geneva Convention deals with prisoners-of-war and their protection. The Convention defines who is a legitimate fighter and specifies the arrangements for the detention of prisoners-of-war and the way they are to be treated. During the 1970s, Additional Protocols were added to the Geneva Convention, mainly due to pressure from Third World countries. These Protocols substantially expanded the definition of a fighter to guerrillas and terrorists, and Israel (and even the United States) did not sign them and does not recognise them.
- Combatants are part of the organisation of the chain of command, led by a commander. This condition is designed to prevent units operating on their own initiative acquiring the status of prisoners-of-war. The law does not recognise private wars, combatants must be part of a hierarchy, subject to discipline and supervision by senior ranks. In that way, there will be someone to address if there are breaches of the rules of war or exchanges of prisoners.
- Combatants must wear a permanent sign of recognition which can be recognised from afar. The recognition sign must be permanent (a different sign cannot be used every day). The sign does not necessarily have to be standard military uniform, all it needs to be is the same clothing that is distinguishable from civilian clothing. Naturally, this does not mean wearing identification that is likely to endanger the wearer (such as a hat that is luminous in the dark) nor does it prevent the use of camouflage that makes use of the conditions in the field (hiding among trees and bushes). The intention behind the directive is that anyone seeing the combatant can distinguish between him and a non-combatant civilian. Concealment that is prohibited under the rules of war is not hiding in the contours of the landscape but assimilation into the human landscape, that is to say, into the innocent population that is not involved in the war. A soldier must not kill or injure people belonging to the other side when he is not distinguishable from the civilian population. Soldiers in the regular army who do not wear uniform and do not wear a permanent identification sign will not be considered as legitimate combatants. The use by deception of the enemy’s uniform is a breach of the rules of warfare.
- Combatants are required to carry their weapons visibly. This condition completes the conditions concerning the wearing of uniform or the carrying of a permanent sign, and it is also intended to maintain the identification between soldiers and the civilian population. It is understood that it does not prevent the wearing of a revolver in a special holster or carrying grenades in a kit-bag, and does not even prevent the use of a surprise tactic.
- Combatants are required to conduct themselves as required by the rules and customs of war. This is the most basic condition. It is understood that in order to be able to benefit from the protection of the rules of war, combatants are required to be ready to grant these defences even to combatants on the other side. A soldier who commits a war crime shall not be granted the status of a prisoner-of-war and he can be tried in a court of law for his crimes (for example a soldier who has attacked innocent civilians). This also applies if he did these deeds when he was wearing uniform, was carrying a weapon openly and was part of an hierarchical organisation.
In order to check whether this condition has been fulfilled, there is a double test both on the group level and also on the individual level: a soldier belonging to an organisation that does not honour the rules of war (such as a terrorist organisation) will not acquire protection even if he himself did not breach the rules of war. Consequently, Israel has refused to grant terrorists captured the status of prisoners-of-war, even if they themselves did not perform acts of terror. After this an examination must be performed to check whether the combatant himself breached the rules of war. Even a soldier serving in a regular army who has himself breaches the rules of war (attacked civilians for example) will not be defended against his actions.
- The combatant belongs to one of the parties to the dispute. Combatants are required to belong to one of the warring parties, i.e. to one of the countries participating in the armed conflict. A soldier belonging to a terrorist organisation or an unrecognised militia will not be granted the status of prisoner-of-war.
- Lack of a duty of loyalty to the arresting country. This condition is not mentioned in the Convention but it is accepted in practice. It is designed to prevent a situation in which a national of a particular country betrays it and joins the ranks of the enemy, and when arrested escapes the charge of treason using the claim of being a ‘prisoner-of-war’.
In addition to these conditions, citizens assigned to jobs in the armed forces, such as civilians working for the army, military correspondents, contractors performing services for the army, etc., carrying a card from the army confirming their status will also receive the status of prisoner-of-war.
The third Geneva Convention provides (in clause 5) that if a combatant is caught and his status is unclear, he should be granted the rights to which a prisoner-of-war is entitled until his status has been clarified.
The 1977 Additional Protocols drastically reduce the conditions for defining a “legal combatant” by determining that it is enough that a fighter in the underground must carry his weapons openly during an operation and when he is visible to the enemy, and there is no need for the rest of the conditions. Furthermore, the protocols establish that even the failure to comply with the rules of war are no reason to deny the right of a combatant in an irregular organisation to prisoner-of-war status. Furthermore, even a fighter who has not carried his weapon openly will nevertheless not be considered as an official prisoner-of-war, but the Additional Protocols require him to be given protection equal to that of a prisoner-of-war.
Clearly this empties the provisions of the Geneva Convention of all content since the significance of it is the cancellation of the main reasons for which the definitions were originally determined, namely the mutual abiding by the rules of war as well as a distinction between fighters and the civilian population and preventing the concealment of combatants in a civil war.
In practice, the Additional Protocols confer the protection of prisoners-of-war status on every organised terror group under the direct command of the commander responsible for its orders. Of course, countries that have had dealings with terror groups have not accepted these directives and various countries (including Israel and the United States) have not ratified the Additional Protocols. The claims made by terrorists to the IDF martial courts that they are entitled to the status of prisoners-of-war, have been rejected.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
In its judgment in the Kassem case
in 1969, an Israeli Military Court held that in order to benefit from prisoner-of-war status, a person must carry arms openly. The Court specified that the phrase “carrying arms openly” was not to be construed as carrying arms in places where the arms and the persons bearing them cannot be seen, nor does it refer to bearing arms during a hostile engagement. According to the Court, the fact that the defendants used their weapons during their encounter with the Israel Defense Forces was unimportant since no weapons were known to be in their possession until they started firing at Israeli soldiers. It was thus ruled that they did not carry arms openly.
In its decision in the Muhammad Srur case in 2007, Israel’s Nazareth District Court stated:
8. Article 4 of the [Third Geneva] Convention specifies the category of persons who will be deemed to hold the status of prisoner of war.
Article 4 A (1) states:
Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
The litigants relate at length to the interpretation of this provision; however, it seems that the question, as it relates to Hezbollah and to the status of its combatants, has already been decided by the Supreme Court, in HCJ 2967/00, Batya Arad v. The Knesset, P. D. 54 (2) 188 (2000), whereby members of Hezbollah are not to be considered prisoners of war, if only inasmuch as the organization operates in breach of the laws of war. In the words of the Court [at page 191];
It is sufficient that article 4A(2)(d) of the Third Geneva Convention is not met. According to this provision, one of the conditions that must be fulfilled to come within the definition of “prisoner of war” is “that of conducting their operations in accordance with the laws and customs of war.”
The organizations to which the Lebanese detainees belong are terrorist organizations operating in breach of the laws and customs of war. For example, these organizations intentionally harm civilians and fire from among a civilian population, which they use as a shield. These actions contravene international law. Indeed, the consistent position of Israel over all the years has been that these organizations, such as Hezbollah, should not be considered organizations to which the Third Geneva Convention applies. We found no reason to interfere with this position.
These words, stated seven and a half years ago, apply today as well, contrary to the argument raised by the defendants. The defendants base their analysis on the contention that, since 2005, members of Hezbollah have joined the Lebanese establishment, have taken part in elections, have been elected to parliament, and their representatives have even served as ministers in the Lebanese government. We do not believe that the organization abandoned its positions, as appears from the opinion of “Roth” and also from the testimony of the expert on behalf of the defendants, as to which the Honorable Justice Rubinstein, in HCJ 8780/06, has already expressed his thoughts:
This opinion (of 4 October 2006), which did not focus on the subject under review (the status of Hezbollah members), indicates that the organization plays a “dual game” – on the one hand, it took part in the Lebanese elections and its representatives serve in the Lebanese government (as of the time of the opinion – E.R.), and on the other hand, the organization continues to exist and take an independent policy in opposition to Security Council Resolution 1559, and to maintain its existence as a military force. Senior officials in the Lebanese government, such as the prime minister and minister of the interior, have made statements indicating that the Lebanese government does not know about the abduction of IDF [Israel Defense Force] soldiers. The opinion indicates that, also after Security Council Resolution 1701 and the truce of 14 August 2006, Hezbollah has operated independently and continues to act like an independent terrorist organization that is not subject to the government of Lebanon.
As can be seen, the Supreme Court has stated its position regarding this contention and regarding the opinion presented to us, that notwithstanding the fact that Hezbollah took part in various Lebanese governmental frameworks, it continued to exist as an independent entity and pursued its own entirely independent policy as a terrorist organization, without even informing the Lebanese government officials of its intentions or actions.
9. Furthermore, the accepted interpretation of the expression “armed forces” refers to members of the regular forces, of any kind and type, of a state, including members of militias and volunteer corps, all of whom are under the command of the central government’s institutions. The defendants’ attempt to come within the definition of forces that are not subject to the central government is inconsistent with the language of the definition, as well as with the interpretation given to the expression by the learned Pictet – the official commentator of the Convention on behalf of the Red Cross. According to Pictet’s interpretation of article 4, there is a clear distinction between militias and volunteer corps that are part of the regular army, and forces that are independent:
… the delegates to the 1949 Conference reverted, at the suggestion of the Netherlands Delegation, to the principle stated in Article 1 of the 1907 Hague Regulations, which made a distinction between militias and volunteer corps forming part of the army and those which are independent. [emphasis added by Nazareth District Court]
We, too, are of the opinion that the expression “militias and volunteer corps,” which are unified under the Convention, should not be expanded to include organizations established on their own, or on behalf of a foreign sovereign – such as Hezbollah in the present case, which is subject to the orders of the Iranian government in one form or another – unlike volunteer forces that are unified by the central government, such as, by way of example only, Civil Defense or home defense forces, which are armed by the central government and subordinate to its command.
Indeed, the learned Dinstein so interpreted article 4 A (1) of the Convention:
The reference is to an army in the sweeping meaning of the term – land, sea, and air forces – including also auxiliary units, which comprise part of the state’s armed forces. Below we shall relate to this category using the language regular forces. It is important, therefore, to understand that it is not intended here to distinguish between a regular army and reserves, or between compulsory and regular service. All these come within the rubric of regular forces. The distinction is between regular forces of any kind, on the one hand, and irregular forces in the meaning of partisans or guerilla fighters, on the other hand.
In his Separate Opinion, Judge Menachem Ben David stated:
Article 4 A (1) of the Third Geneva Convention specifies who are entitled to protection under the Convention, and we see that they are members of the armed forces of parties to the conflict with “parties to the conflict” here being the states that are at war with each other. Nobody can argue that the defendants, and other members of Hezbollah, come within this category. Others entitled to this status are members of militias or volunteer corps constituting a part
of the armed forces of the parties to the conflict. In the English original, the article speaks of members of militias and volunteers as “forming part” of such armed forces. There is no doubt that the article refers to civilian, or semi-military, bodies that are part of the armed forces of their mother country and are combined with them or attached to them. As was explained, the logic underlying the Convention is intended to give reciprocal protection to members of the armed forces of countries that are at war with each other, and their members fall captive, when those soldiers did not act on their own but as agents on a mission for the sovereign of their country and upon its orders. It is known that every one of them has the obligation of loyalty to his country and to the sovereign leading it, and must obey the sovereign’s orders, including going to battle, so it would not be proper or fair for the adversary state to prosecute the combatant if taken captive. The same logic dictates that protection should also be given to members of a militia and members of a volunteer corps, who are part of those armed forces, i.e., they belong and are part of them in organizational terms, act in their frameworks, accept the authority of the same sovereign, and act in accord with its orders and as its agents. The defendants and their fellow members in the organization clearly do not meet these conditions.
[emphasis in original]
At the CDDH, Israel voted against Article 42 of the draft Additional Protocol I (now Article 44) because it was of the opinion that:
Article 42, 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. In the case of guerrilla warfare it was particularly necessary for combatants to distinguish themselves because that was the only way in which the civilian population could be effectively protected … Moreover, once combatants were freed from the obligation to distinguish themselves from the civilian population the risk of terrorist acts increased … Prisoner-of-war status depended on two essential conditions: first, respect for the rules of international law applicable in armed conflicts (for the members of regular forces there was a praesumptio juris et de jure
that that condition had been met); secondly, a clear and unmistakable distinction between the combatants and the civilian population. They were two sine qua non
conditions established in international custom and in numerous treaties.
The Report on the Practice of Israel states that Israel does not consider that Article 44(3) of the 1977 Additional Protocol I reflects customary international law.