Practice Relating to Rule 106. Conditions for Prisoner-of-War Status

Additional Protocol I
Article 44(3) of the 1977 Additional Protocol I provides:
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. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 44(3). Article 44 was adopted by 73 votes in favour, one against and 21 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 121.
Article 44(7) of the Protocol provides:
This Article is not intended to change 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. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 44(7). Article 44 was adopted by 73 votes in favour, one against and 21 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 121.
Additional Protocol I
Article 45(3) of the 1977 Additional Protocol I provides:
Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 45(3). Article 45 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 155.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina states: “In order to promote the protection of the civilian population, combatants are obliged to distinguish themselves from the civilian population.” 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
Argentina
Argentina’s Law of War Manual (1989) 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. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.08(3).
Australia
Australia’s Defence Force Manual (1994) provides that combatants must “have a fixed distinctive sign recognisable at a distance and carry arms openly … Combatants are normally expected to distinguish themselves from the civilian population by wearing a uniform.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, §§ 512–513.
Australia
Australia’s LOAC Manual (2006) states:
5.12 … Where [combatants] are not members of the armed forces, they must also have a fixed distinctive sign recognisable at a distance and carry arms openly.
5.13 … A member of the armed forces does not lose combatant status merely by operating covertly or as a guerrilla. That is, while combatants are normally expected to distinguish themselves from the civilian population by wearing a uniform, the LOAC recognises that they do not have to wear a uniform on operations to retain their status as combatants. This is conditional on combatants who cannot so distinguish themselves because of the nature of hostilities, openly carrying arms during:
• each military engagement, and
• at such times as they are visible to the adversary while engaged in a military deployment preceding the launching of an attack in which they are to participate. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 5.12–5.13.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states that there is a “customary rule according to which all members of the regular armed forces wear a uniform”. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 20.
Benin
According to Benin’s Military Manual (1995), combatants “distinguish themselves by their uniform or by a fixed recognizable sign or at least by carrying arms openly”. 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule I, p. 12.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states:
Combatants must distinguish themselves from civilians:
- by wearing a uniform,
- by being equipped with a distinctive sign,
- by being under a responsible command,
- by carrying arms openly, at least in the following situations: during each military engagement, [and] during such time as they are visible to the adversary while engaged in a military deployment. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 9; see also Part I bis, p. 52.
Cameroon
According to Cameroon’s Instructor’s Manual (1992), combatants “wear a uniform, a distinctive sign and carry arms openly. They distinguish themselves from the civilian population.” 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 17; see also p. 77.
Cameroon
Cameroon’s Instructor’s Manual (2006), under the heading “Combatants”, states: “He must distinguish himself from the civilian population while he takes part in an attack or an operation preparatory to an attack.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 210, § 512.
The manual, under the heading “Combatants”, also states: “He wears a uniform, [shows] a distinctive sign [and carries] a weapon openly. He thus distinguishes himself from the civilian population.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 92, § 352.10l; see also p. 134, § 412.10.
Cameroon
Cameroon’s Disciplinary Regulations (2007) states:
Article 30: Definition
Members of armed forces in organized units, franc-tireurs detached from regular units, commando detachments and isolated saboteurs, as well as the members of voluntary militias, self-defence groups and organized resistance formations are lawful combatants.
It is sufficient that those units, organizations or formations have a designated commander, that their members wear a distinctive sign, notably on their clothing, that they carry their arms openly and that they respect the laws and customs of war.
These combatants, if they are captured, must be considered prisoners of war. 
Cameroon, Règlement de discipline générale dans les forces de défense, Décret N° 2007/199, Président de la République, 7 July 2007, Article 30.
Canada
Canada’s LOAC Manual (1999) states: “To ensure the protection of the civilian population, combatants are required to distinguish themselves from that population when engaging in an attack or preparing to mount an attack.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 3-2, § 15.
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status”: “To ensure the protection of the civilian population, combatants are required to distinguish themselves from that population when engaging in an attack or preparing to mount an attack.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 308(1).
Colombia
Colombia’s Instructors’ Manual (1999) states:
Combatants must distinguish themselves from the civilian population when they participate in combat action or in an operation preparatory thereto. Members of regular Armed Forces normally wear their uniform. Members of other militias, such as rebels and guerrillas, use a distinctive sign and normally carry their arms openly. 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 16.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):
Chapter 3. Identification
I.2. Combatants
Combatants must distinguish themselves from the civilian population when they participate in any military operation or when they prepare for such an operation. Normally, the members of the regular armed forces distinguish themselves by wearing a military uniform; camouflage attire for combat is also considered as a uniform. Combatants who are not members of uniformed armed forces must wear a fixed distinctive sign recognizable from a distance and carry their arms openly.
I.4. Special forces
Numerous armies have special forces. Generally, they are very specialized units, employed far behind the lines of the enemy for incursions, reconnaissance operations or sabotage missions. They can also be used for tasks concerning internal security, such as fighting hostage-taking or terrorism. These units are part of the armed forces in the same way as those described before. During operations, they must be recognizable as combatants, by their uniforms, their insignia. Special forces who operate in civilian attire or dressed in the uniform of the enemy can be punished. Their members nevertheless have the right to a fair trial and must be treated in a manner equivalent to prisoners of war for the whole time of the judicial proceedings.
Chapter 4. Behaviour in action
III.4. Evacuation
In case of doubt regarding the status of a captive, he must be treated like a prisoner of war. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 27, 28–29, 39 and 46.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
Chapter 2. Combatants and objectives
I.2.2. Armed forces
Every member of the armed forces, acting separately from his unit, is a combatant, even if he employs methods of attack by surprise or of violent assault, to the extent that he wears an appropriate uniform during these operations. …
Chapter 4. Methods and means of warfare
I.1.5. Sabotage
Sabotage is allowed under IHL, to the extent that the object of sabotage is a legitimate objective. Saboteurs are persons undertaking activities behind the lines of an adverse Party to commit acts of destruction.
Saboteurs in uniform are combatants and are entitled to POW [prisoner-of-war] status if they are captured.
Civilian saboteurs or saboteurs not wearing uniform do not receive that protection and risk being treated as spies. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 17, 18, 45 and 47.
Croatia
Croatia’s LOAC Compendium (1991) states that combatants distinguish themselves from civilians by wearing a uniform, having a distinctive sign, being under a responsible command, being subject to the law of war and by “carrying arms openly at least: during every military engagement [and] as long as visible to the enemy while engaged in a military deployment”. 
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 6.
Croatia
Croatia’s Commanders’ Manual (1992) states that combatants, members of the armed forces, “distinguish themselves by their uniform or by a recognizable distinctive sign or at least by carrying their arms openly”. 
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 2.
Dominican Republic
The Dominican Republic’s Military Manual (1980) states:
Uniformed, armed soldiers are easily recognizable. However, guerrillas often mix with the civilians, perform undercover operations, and dress in civilian clothes. Alertness and caution must guide you in deciding who is a combatant. 
Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, p. 3.
France
France’s LOAC Summary Note (1992), LOAC Teaching Note (2000) and LOAC Manual (2001) provide that combatants distinguish themselves by their uniform, a fixed and recognizable sign or, at least, by carrying arms openly. 
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 1.2; Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 2; Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 39.
Germany
Germany’s Military Manual (1992) provides:
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. 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. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 308.
Germany
Germany’s Soldiers’ Manual (2006) states:
Combatants are all persons who may directly participate in combat operations, e.g. the members of the armed forces as well as militias and volunteer corps forming part of the armed forces.
Only combatants are entitled to take part in combat operations and cannot be punished for doing so. In contrast, other persons, e.g. mercenaries, can be punished.
If combatants fall into the hands of the enemy, they become prisoners of war.
They may not be held responsible for their participation in permitted acts of war. Violations of international law, however, may be punished according to the law of the detaining power. 
Germany, Druckschrift Einsatz Nr. 03, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, Erarbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, pp. 2, 3 and 7.
Greece
The Hellenic Territorial Army’s Internal Service Code (1984), as amended, provides:
Members of the armed forces should:
(a) Consider as “lawful combatants” those who belong to the armed forces of the enemy or to the national guard (the organized resistance included), provided that the personnel of the above is organized in units, is under the command of a certain leader, has a distinctive sign, carries arms openly and respects the laws and customs of war. Persons who do not fulfill the above conditions should not be considered as “lawful combatants” and in case they are captured, they are not protected by the laws regulating the PoWs [prisoners of war]. 
Greece, Hellenic Territorial Army Regulation of Internal Service Code, Presidential Decree 130/1984 (Military Regulation 20-1), as amended, Article 14(a).
Hungary
According to Hungary’s Military Manual (1992), combatants distinguish themselves from civilians by wearing a uniform, having a distinctive sign, being under a responsible command, being subject to the law of war and by “carrying arms openly at least: during every military engagement [and] as long as visible to the enemy while engaged in a military deployment”. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 17.
Israel
Israel’s Manual on the Laws of War (1998) states:
It is prohibited to use civilians for the purpose of masking military movements or hiding among them. From this provision stems the soldiers’ obligation to wear a uniform or identifying symbol to clearly distinguish them from civilians. 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 38.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
Civilians must not be used to screen the military movements and for the purpose of concealment amongst them. This is also the reason why soldiers are under an obligation to wear uniform or identification insignia so as to make it possible to distinguish clearly between them and civilians. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 27.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s IHL Manual (1991) states:
In order to obtain the best possible protection of the civilian population, lawful combatants are obliged to distinguish themselves from the civilian population when they participate in an attack or in a military operation preparatory to an attack. 
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 5.
Italy
Italy’s LOAC Elementary Rules Manual (1991) states that combatants, members of the armed forces, “distinguish themselves by their uniform or by a recognizable distinctive sign or at least by carrying their arms openly”. 
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 2.
Kenya
Kenya’s LOAC Manual (1997) states:
While engaged in combat action or in a military operation preparatory to it, combatants must distinguish themselves from the civilian population. It is customary for members of organized armed forces to wear uniform. Members of any other militias, volunteer corps or organized resistance movements wear a fixed recognizable distinctive sign or at least [carry] their arms openly. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 8.
Madagascar
Madagascar’s Military Manual (1994) states that combatants “distinguish themselves by their uniform or by a fixed recognizable sign or, at least, by carrying arms openly”. 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 2-O, § 2.
The manual further states:
Combatants must distinguish themselves from the civilian population while engaged in a combat action or in a preparatory military operation. Members of regular armed forces or persons who are assimilated thereto usually distinguish themselves by their uniform. 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 2-SO, § A.
Netherlands
The Military Manual (1993) of the Netherlands states:
[Combatants] have to distinguish themselves from the civilian population. This is a consequence of the principle that the parties to the conflict have to distinguish at all times between civilians and combatants. Combatants distinguish themselves in the first place by wearing a uniform. In addition, they have to carry their arms openly. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. III-4; see also Handboek Militair, Ministerie van Defensie, 1995, p. 7-39.
Netherlands
The Military Manual (2005) of the Netherlands states:
Combatants have the right to play a direct part in hostilities. They should distinguish themselves from the civilian population. This stems from the principle that the belligerents must at all times distinguish between civilians and combatants. The latter are distinguished by wearing a uniform. Combatants must also carry their weapons openly. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0306.
New Zealand
New Zealand’s Military Manual (1992) provides:
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 the case of a State’s regular forces, the uniform worn by the forces strengthens the distinction. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 805(3).
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
Combatants have the right to take a direct part in combat operations and, if captured by the enemy, the right to be granted the prisoner of war status. Combatants are obliged to comply with the rules of international humanitarian law in their activities and to distinguish themselves from the civilian population at least by carrying their arms openly during each military engagement or while being visible to the enemy before the engagement. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 1.
The Regulations further states:
In case of doubt whether a person taking part in hostilities and falling into the hands of the enemy is a prisoner of war, this person is considered prisoner of war until his status is clarified by a court of justice. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 1.
South Africa
South Africa’s LOAC Manual (1996) states:
It is clearly important that combatants, while engaged in combat action or in a military operation preparatory thereto, must distinguish themselves from the civilian population. Members of regular and assimilated armed forces normally distinguish themselves by their uniform. Members of other armed forces wear a fixed, recognisable and distinctive sign and carry their arms openly. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 26. This manual is also included in Chapter 4 of the Draft Civic Education Manual of 1997.
South Africa
South Africa’s Revised Civic Education Manual (2004) states:
Distinction Between Civilians and Combatants. In the light of the above, it is clearly important that combatants, while engaged in combat action or in a military operation preparatory thereto, must distinguish themselves from the civilian population. Members of the regular and assimilated armed forces normally distinguish themselves by their uniform. Members of other armed forces wear a fixed, recognisable and distinctive sign and carry their arms openly. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 49.
[emphasis in original]
Spain
Spain’s LOAC Manual (2007) states:
Combatants must distinguish themselves from the civilian population:
(a) by carrying their arms openly at all times;
(b) by wearing a uniform or distinctive sign making them easily recognizable from a distance, although this obligation can be derogated from in exceptional circumstances. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 8.2.d.(2).
Sweden
Sweden’s IHL Manual (1991) states:
The basic rule for the conduct of combatants is that they are obliged to distinguish themselves from the civilian population when taking part in an attack or in a military operation in preparation for an attack. For combatants belonging to regular forces, this is no problem, since they are recognizable by their uniforms and normally also by the carrying of weapons. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.4, p. 36.
Switzerland
Switzerland’s Basic Military Manual (1987) states:
In order to increase the protection of the civilian population against the effects of hostilities, combatants must distinguish themselves from the civilian population by wearing a uniform, before and during an attack. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 26(1).
The manual further states:
All members of the regular armed forces wear a uniform … The uniform allows for a distinction to be made between friendly and enemy armed forces, on the one hand, and between armed forces and civilians, on the other hand. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Articles 57 and 58.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
12.1 The principle of distinction
159 Hostilities must be directed exclusively against combatants and military objectives. Respect for this rule is only possible if combatants and military objectives can be distinguished from protected persons and objects. Such means include wearing a uniform or at least openly bearing weapons while engaged in an attack. 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 158–159. In the second sentence of § 159, the German language version notes: “Respect for this rule is only possible if combatants and military objectives can be distinguished or, respectively, are locally separated unterscheidbar bzw. örtlich getrennt from protected persons and objects.”
Togo
Togo’s Military Manual (1996) states: “Combatants must distinguish themselves from the civilian population by wearing their uniform – or a fixed distinctive sign – and by carrying their arms openly.” 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule I, p. 13.
Ukraine
Ukraine’s IHL Manual (2004) states:
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), at least by carrying their arms openly.
If a combatant falls into the power of an adverse party, he shall be entitled to the status of a prisoner of war. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.22.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states: “All combatants are required to distinguish themselves from the civilian population, usually by wearing uniform.” 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 3, p. 9, § 2.
The Pamphlet also states: “It is customary for members of organised armed forces to wear uniform.” 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 3, p. 8, § 1.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
4.4. “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.”
4.4.3. … In order that the civilian population should be adequately protected, the expression “military operation preparatory to an attack” must be given a wide meaning. Members of the armed forces who do not wear uniform, combat gear or an adequate distinctive sign and whose sole arm is a concealed weapon, or who hide their arms on the approach of the enemy, will be considered to have lost their combatant status. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 4.4 and 4.4.3.
The manual further explains that a member of armed forces failing to comply with the rule of distinction “forfeits his right to be treated as a prisoner of war unless, in spite of the circumstances, he still falls within one of the categories entitled to prisoner of war status under Geneva Convention III”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 4.6.
United States of America
The US Air Force Pamphlet (1976) states that combatants are only entitled to prisoner-of-war status if, inter alia, they have a fixed distinctive sign and carry arms openly. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 3-2(b)(3); see also Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 61(a)(2).
The Pamphlet explains that the requirement of having a fixed distinctive sign
may be satisfied by wearing a uniform [and] insures that combatants are clearly distinguishable from civilians to enhance protection of civilians. Less than a complete uniform will suffice provided it serves to distinguish clearly combatants from civilians. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 3-2(b)(4)(b); see also § 7-2 and Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 64(b).
With respect to the requirement to carry arms openly, the Pamphlet states: “Irregular forces do not satisfy this requirement by carrying arms concealed about the person or if the individuals hide their weapons on the approach of the enemy.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 3-2(b)(4)(c); see also Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 64(c).
United States of America
The US Naval Handbook (1995) states: “Combatants … carry their arms openly, and otherwise distinguish themselves clearly from the civilian population.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 5.3.
United States of America
The US Naval Handbook (2007) states: “Commanders … must distinguish their forces from the civilian population. This is why combatants wear uniforms or other distinctive signs.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 5.3.2.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1977 Additional Protocol I, including violations of Articles 44(3) and 45(3), is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).
Israel
In its judgment in the Kassem case in 1969, an Israeli Military Court held that the defendants sufficiently fulfilled the requirement to distinguish themselves from the civilian population by wearing mottled caps and green clothes, which were not customary attire for the inhabitants of the area in which the accused were captured. 
Israel, Military Court at Ramallah, Kassem case, Judgment, 13 April 1969.
Israel
In the Swarka case before an Israeli Military Court in 1974, the defendants had infiltrated Israeli territory from Egypt and had launched rockets at a civilian settlement. Upon their capture, they argued that they were entitled to prisoner-of-war status according to Article 4(A)(1) of the 1949 Geneva Convention III because they were regular soldiers in the Egyptian army operating under orders from their commander. The Prosecutor contended that they could not benefit from this status since they wore civilian clothes while carrying out their mission. The Court observed that, indeed, neither the Hague Regulations nor the 1949 Geneva Convention III provided that a member of the regular armed forces had to wear a uniform at the time of capture in order to be considered a prisoner of war. It considered, however, that it would be quite illogical to regard the duty to wear a uniform (in the sense of a distinctive sign) as imposed only on the quasi-military units referred to in Article 4(A)(2) of the 1949 Geneva Convention III and not on soldiers of regular armed forces. The Court concluded that the defendants were to be prosecuted as saboteurs. 
Israel, Military Court, Swarka case, Judgment, 1974.
Israel
In its judgment in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
24. … [T]he terrorist organizations from the area, and their members, do not fulfill the conditions for combatants (see GROSS, at p. 75). It will suffice to say that they have no fixed emblem recognizable at a distance, and they do not conduct their operations in accordance with the laws and customs of war. In one case, I wrote:
“The Lebanese detainees are not to be seen as prisoners of war. It is sufficient, in order to reach that conclusion, that they do not fulfill the provisions of article 4a(2)(d) of The Third Geneva Convention, which provides that one of the conditions which must be fulfilled in order to fit the definition of ‘a 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 belonged are terrorist organizations acting contrary to the laws and customs of war. Thus, for example, these organizations intentionally harm civilians, and shoot from within the civilian population, which serves them as a shield. Each of these is an act contrary to international law. Indeed, Israel’s constant stance throughout the years has been to view the various organizations, like the Hizbollah, as organizations to which The Third Geneva Convention does not apply. We found no cause to intervene in that stance” (HCJ 2967/00 Arad v. The Knesset, 54 PD(2) 188, 191; see also Severe CrimC 1158/02 (TA) The State of Israel v. Barguti (unpublished, paragraph 35 of the verdict); Tav Mem/69/4 The Military Prosecutor v. Kassem, 1 SELECTED JUDGMENTS OF THE MILITARY TRIBUNALS IN THE ADMINISTERED TERRITORIES 403 [PISKEI DIN NIVCHARIM SHEL BATEI HADIN HATSVAYIM BASHTACHIM HAMUCHZAKIM]).
25. The terrorists and their organizations, with which the State of Israel has an armed conflict of international character, do not fall into the category of combatants. They do not belong to the armed forces, and they do not belong to units to which international law grants status similar to that of combatants. Indeed, the terrorists and the organizations which send them to carry out attacks are unlawful combatants. They do not enjoy the status of prisoners of war. They can be tried for their participation in hostilities, judged, and punished. The Chief Justice of the Supreme Court of the United States, Stone C.J. discussed that, writing:
“By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful population of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatant[s] are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful” (Ex Parte Quirin 317 U.S. 1, 30 (1942); see also Hamdi v. Rumsfeld, 542 U.S. 507 (2004)).
The Imprisonment of Unlawful Combatants Law, 5762-2002 authorizes the chief of the general staff of the IDF [Israel Defense Forces] to issue an order for the administrative detention of an “unlawful combatant”. That term is defined in the statute as “a person who took part in hostilities against the State of Israel, whether directly or indirectly, or is part of a force which commits hostilities against the state of Israel, who does not fulfill the conditions granting prisoner of war status in international humanitarian law, as determined in article 4 of III Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949.” Needless to say, unlawful combatants are not beyond the law. They are not “outlaws”. God created them as well in his image; their human dignity as well is to be honored; they as well enjoy and are entitled to protection, even if most minimal, by customary international law (Neuman, Humanitarian Law and Counterterrorist Force, 14 EUROPEAN JOURNAL OF INTERNATIONAL LAW 283 (2003); Georg Nolte, Preventative Use of Force and Preventative Killings: Moves into a Different Legal Order, 5 THEORETICAL INQUIRIES IN LAW 111, 119 (2004), hereinafter “Nolte”). That is certainly the case when they are in detention or brought to justice (see §75 of The First Protocol, which reflects customary international law, as well as Knut Dormann, The Legal Situation of “Unlawful/Unprivileged” Combatants, 849 INTERNATIONAL REVIEW OF THE RED CROSS 45, 70 (2003), hereinafter “Dormann”). Does it follow that in Israel’s conduct of combat against the terrorist organizations, Israel is not entitled to harm them, and Israel is not entitled to kill them even if they are planning, launching, or committing terrorist attacks? If they were seen as (legal) combatants, the answer would of course be that Israel is entitled to harm them. Just as it is permissible to harm a soldier of an enemy country, so can terrorists be harmed. Accordingly, they would also enjoy the status of prisoners of war, and the rest of the protections granted to legal combatants. However, as we have seen, the terrorists acting against Israel are not combatants according to the definition of that term in international law; they are not entitled to the status of prisoners of war; they can be put on trial for their membership in terrorist organizations and for their operations against the army. 
Israel, High Court of Justice, Public Committee against Torture in Israel case, Judgment, 14 December 2006, §§ 24–25.
Argentina
Upon accession to the 1977 Additional Protocol I, Argentina declared that Articles 44(2), 44(3) and 44(4) of the 1977 Additional Protocol I could not be interpreted:
a) as conferring on persons who violate the rules of international law applicable in armed conflicts any kind of immunity exempting them from the system of sanctions which apply to each case;
b) as specifically favouring anyone who violates the rules the aim of which is the distinction between combatants and the civilian population;
c) as weakening respect for the fundamental principle of the international law of war which requires that a distinction be made between combatants and the civilian population, with the prime purpose of protecting the latter. 
Argentina, Interpretative declarations made upon accession to the 1977 Additional Protocols I and II, 26 November 1986, § 1.
Botswana
On the basis of an interview with a retired army general, the Report on the Practice of Botswana states: “The position of Botswana is that combatants will usually have well identifiable uniforms.” 
Report on the Practice of Botswana, 1998, Interview with a retired army general, Chapter 1.1.
Djibouti
In 2010, in the History and Geography Textbook for 8th Grade, Djibouti’s Ministry of National Education and Higher Education, under the heading “Basic rules of IHL” and in a section on “Weapons and tactics”, stated: “It is prohibited for a combatant to pretend he/she is a civilian.ˮ 
Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 194.
In an exercise asking students to identify IHL violations, the ministry provided the following example: “[A soldier states:] ‘Quite often, soldiers exchange their uniforms for civilian clothes. How can we then know who is really a civilian?’” 
Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 201.
Germany, Federal Republic of
At the CDDH, the Federal Republic of Germany stated:
The basic rule set forth in Article 42 [now Article 44], paragraph 3, first sentence, that combatants are obliged to distinguish themselves from the civilian population means that these combatants have to distinguish themselves in a clearly recognizable manner. 
Germany, Federal Republic of, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 136.
Indonesia
On the basis of interviews with senior army officers, the Report on the Practice of Indonesia states:
There is no national regulation for the implementation of the distinction principle in non-international armed conflict. However, in certain insurgencies during the 1950’s and the 1960’s, Indonesian armed forces used uniforms as one of the criteria to distinguish between rebels and civilians … Though the uniforms used by some rebels did not resemble the military uniform, for example, the rebels used no insignia or other emblems, their differing colour was the main criterion by which the military was able to distinguish them from civilians. 
Report on the Practice of Indonesia, 1997, Interviews with senior army officers, Chapter 1.1, note 2.
Italy
At the CDDH, Italy stated that Article 42(3) of the draft Additional Protocol I (now Article 44(3)) “embodied and reaffirmed without amendment or derogation a basic rule of existing international law, the need for combatants to distinguish themselves from the civilian population”. It added that “it was essential that the distinction principle should remain the basis of international humanitarian law, because on respect for that principle depended the protection of the civilian population”. 
Italy, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, pp. 122–123, §§ 21 and 24.
Netherlands
At the CDDH, the Netherlands stated that it was convinced that “the fundamental rule of distinction between combatants and the civilian population had not been weakened by Article 42 [now Article 44]”. It stressed, however, that “the article should not be construed as entitling combatants to waive that distinction”. 
Netherlands, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 142, § 5.
Rwanda
In 2010, in its Comments on the Draft UN Mapping Report on the DRC (Democratic Republic of the Congo), Rwanda stated:
[Regarding the] Rwandan involvement in the conflict that engulfed Zaire in 1996 … , as in similar situations where terrorist groups and insurgents mix with civilians and refugees and do not wear uniforms or otherwise follow the law of armed conflict, the demarcation between illegal combatants and civilians was not always clear. 
Rwanda, Ministry of Foreign Affairs and Cooperation, Official Government of Rwanda Comments on the Draft UN Mapping Report on the DRC, 30 November 2010, § 14.
Switzerland
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
International humanitarian law establishes criteria for the granting of combatant status. It is primarily for members of the armed forces of a party to the conflict but also for members of other militias. For this, combatants must carry their arms openly, be recognizable (generally by a uniform), be under a responsible command and act in conformity with international humanitarian law in their operations. 
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.1, pp. 6–7.
[footnotes in original omitted; emphasis in original]
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Lords, the UK Parliamentary Under-Secretary of State for Defence stated:
My Lords, I repeat what I said a few minutes ago that captured Iraqis will be given prisoner of war status until they are proved otherwise and they will be treated according to our obligations under the Geneva Conventions. Captured Iraqi forces are likely to be prisoners of war unless they conceal weapons in the conduct of operations, in which case, as the noble Lord will know, they are unlawful combatants. Although unlawful combatants do not have prisoner of war status, we would have a duty, under international humanitarian law, which we would fulfil, to treat prisoners in a reasonable and humane manner. I hope that that answers the noble Lord’s question. 
United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State for Defence, Hansard, 3 April 2003, Vol. 646, Debates, col. 1472.
United States of America
At the CDDH, the United States voted in favour of Article 42 of the draft Additional Protocol I (now Article 44) and stated:
The basic rule contained in the first sentence of paragraph 3 meant that throughout their military operations combatants must distinguish themselves in a clearly recognized manner. Representatives who had stated or implied that the only rule on the subject was that set forth in the second sentence of paragraph 3 were wrong. 
United States, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 150, § 44.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support … the principle that combatant personnel distinguish themselves from the civilian populations while engaged in military operations.” 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 425.
United States of America
In 1987, the Legal Adviser of the US Department of State stated:
A fundamental premise of the Geneva Conventions has been that to earn the right to protection as military fighters, soldiers must distinguish themselves from civilians by wearing uniforms and carrying their weapons openly … Fighters who attempt to take advantage of civilians by hiding among them in civilian dress, with their weapons out of view, lose their claim to be treated as soldiers. The law thus attempts to encourage fighters to avoid placing civilians in unconscionable jeopardy. 
United States, Remarks of Judge Abraham D. Sofaer, Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy , Vol. 2, 1987, p. 466.
United States of America
In January 2002, in response to a request from the Counsel to the President and the General Counsel of the Department of Defense, the US Office of Legal Counsel, Department of Justice, provided its views regarding the application of treaties and laws to al-Qaeda and Taliban detainees. On the law regarding the prisoner-of-war (POW) status of these detainees, the memorandum stated:
Application of WCA [War Crimes Act] and Associated Treaties to al Qaeda.
We conclude that Geneva [Convention] III does not apply to the al Qaeda terrorist organization. Therefore, neither the detention nor trial of al Qaeda fighters is subject to Geneva III (or the WCA). Three reasons, examined in detail below, support this conclusion. First, al Qaeda is not a State and thus cannot receive the benefits of a State party to the Conventions. Second, al Qaeda members fail to satisfy the eligibility requirements for treatment as POWs under Geneva Convention III. Third, the nature of the conflict precludes application of common article 3 of the Geneva Conventions.
Geneva III does not apply to a non-State actor such as the al Qaeda terrorist organization. Al Qaeda is not a State. It is a non-governmental terrorist organization composed of members from many nations, with ongoing operations in dozens of nations. Non- governmental organizations cannot be parties to any of the international agreements here governing the laws of war. Common article 2, which triggers the Geneva Convention provisions regulating detention conditions and procedures for trial of POWs, is limited to cases of declared war or armed conflict “between two or more of the High Contracting Parties.” Al Qaeda is not a High Contracting Party. As a result, the U.S. military’s treatment of al Qaeda members is not governed by the bulk of the Geneva Conventions, specifically those provisions concerning POWs. Conduct towards captured members of al Qaeda, therefore, also cannot constitute a violation of 18 U.S.C. § 2441(c)(1).
Second, al Qaeda members fail to satisfy the eligibility requirements for treatment as POWs under Geneva Convention III. It might be argued that, even though it is not a State party to the Geneva Conventions, al Qaeda could be covered by some protections in Geneva Convention III. Article 4(A)(2) of Geneva III defines prisoners of war as including not only captured members of the armed forces of a High Contracting Party, but also irregular forces such as “[members of other militias and members of other volunteer corps, including those of organized resistance movements.” Article 4(A)(3) also includes as POWs “[members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” Id. art. 4(A)(3). It might be claimed that the broad terms of these provisions could be stretched to cover al Qaeda.
This view would be mistaken. Article 4 does not expand the application of the Convention beyond the circumstances expressly addressed in common articles 2 and 3. Unless there is a conflict subject to article 2, article 4 simply does not apply. If the conflict is one to which article 3 applies, then article 4 has no role because article 3 does not trigger application of the rest of the provisions of Geneva III. Rather, article 3 provides an alternative set of standards that requires only minimal humanitarian protections. As we have explained, the conflict with al Qaeda does not fall within article 2. As a result, article 4 has no application. In other words, article 4 cannot be read as an alternative, and a far more expansive, statement of the application of the Convention. It merely specifies, where there is a conflict covered by article 2 of the Convention, who must be accorded POW status.
Even if article 4, however, were considered somehow to be jurisdictional as well as substantive, captured members of al Qaeda still would not receive the protections accorded to POWs. First, al Qaeda is not the “armed forces,” volunteer forces, or militia of a state party that is a party to the conflict, as defined in article 4(A)(1). Second, they cannot qualify as volunteer force, militia, or organized resistance force under article 4(A)(2). That article requires that militia or volunteers fulfill four conditions: command by responsible individuals, wearing insignia, carrying arms openly, and obeying the laws of war. Al Qaeda members have clearly demonstrated that they will not follow these basic requirements of lawful warfare. They have attacked purely civilian targets of no military value; they refused to wear uniform or insignia or carry arms openly, but instead hijacked civilian airliners, took hostages, and killed them; and they themselves do not obey the laws of war concerning the protection of the lives of civilians or the means of legitimate combat. As these requirements also apply to any regular armed force under other treaties governing the laws of armed conflict, al Qaeda members would not qualify under article 4(A)(3) either, which provides POW status to captured individuals who are members of a “regular armed force” that professes allegiance to a government or authority not recognized by the detaining power. Members of al Qaeda, therefore, would not qualify for POW treatment under article 4, even if it were somehow thought that they were participating in a conflict covered by common article 2 or if article 4 itself were thought to be jurisdictional in nature.
Third, the nature of the conflict precludes application of common article 3 of the Geneva Conventions. As discussed in Part I, the text of common article 3, when read in harmony with common article 2, shows that the Geneva Conventions were intended to cover either: a) traditional wars between state parties to the Conventions (article 2), b) or non-international civil wars (article 3). Our conflict with al Qaeda does not fit into either category. It is not an international war between nation-States because al Qaeda is not a State. Nor is this conflict a civil war under article 3, because it is a conflict of “an international character.” Al Qaeda operates in many countries and carried out a massive international attack on the United States on September 11, 2001. Therefore, the military’s treatment of al Qaeda members is not limited either by common article 3 or 18 U.S.C. § 2441(c)(3). 
United States, Department of Justice, Office of Legal Counsel, Memorandum by Jay S. Bybee, Assistant Attorney General, for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of Defense, Application of Treaties and Laws to al Qaeda and Taliban Detainees, 22 January 2002, pp. 9–10.
Status of Taliban Prisoners Under Article 4
Even if the President declines to suspend our obligations under Geneva III toward Afghanistan, it is possible that Taliban detainees still might not receive the legal status of POWs. Geneva III provides that once a conflict falls within common article 2, combatants must fall within one of several categories in order to receive POW status. Article 4(A)(l)-(3) sets out the three categories relevant here: i) members of the armed forces of a party to the conflict, along with accompanying militia and volunteer forces; ii) members of militia or volunteer corps who are commanded by an individual responsible to his subordinates, who have a distinctive sign recognizable from a distance, who carry arms openly, and who obey the laws of war; and iii) members of regular armed forces who profess allegiance to a government or authority that is not recognized by the detaining power. Should “any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy,” article 5 of Geneva III requires that these individuals “enjoy the protections of the Convention until a tribunal has determined their status. As we understand it, as a matter of practice prisoners are presumed to have article 4 POW status until a tribunal determines otherwise.
Although these provisions seem to contemplate a case-by-case determination of an individual detainee’s status, the President could determine categorically that all Taliban prisoners fall outside article 4. Under Article II of the Constitution, the President possesses the power to interpret treaties on behalf of the Nation. He could interpret Geneva III, in light of the known facts concerning the operation of Taliban forces during the Afghanistan conflict, to find that all of the Taliban forces do not fall within the legal definition of prisoners of war as defined by article 4. A presidential determination of this nature would eliminate any legal “doubt” as to the prisoners’ status, as a matter of domestic law, and would therefore obviate the need for article 5 tribunals.
We do not have, however, the facts available to advise your Department or the White House whether the President would have the grounds to apply the law to the facts in this categorical manner. Some of the facts which would be important to such a decision include: whether Taliban units followed a recognizable, hierarchical command-and-control structure, whether they wore distinctive uniforms, whether they operated in the open with their weapons visible, the tactics and strategies with which they conducted hostilities, and whether they obeyed the laws of war. If your Department were to conclude that the Afghanistan conflict demonstrated that the conduct of the Taliban militia had always violated these requirements, you would be justified in advising the President to determine that all Taliban prisoners are not POWs under article 4.
It is important to recognize that if the President were to pursue this line of reasoning, the executive branch would have to find that the Afghanistan conflict qualifies as an international war between two state parties to the Conventions. Article 4 is not a jurisdictional provision, but is instead only applied once a conflict has fallen within the definition of an international conflict covered by common article 2 of the Conventions. At this point in time, we cannot predict what consequences this acceptance of jurisdiction would have for future stages in the war on terrorism.
Nonetheless, if the President were to make such a determination, the WCA still would not impose any liability. As will be recalled, the WCA criminalizes either grave breaches of the Geneva Conventions or violations of common article 3. If members of the Taliban militia do not qualify as POWs under article 4, even though the conflict falls within common article 2’s jurisdictional provisions, then their treatment cannot constitute a grave breach under Geneva III. Article 130 of Geneva III states that a grave breach occurs only when certain acts are committed against “persons … protected by the Convention.” If the President were to find that Taliban prisoners did not constitute POWs under article 4, they would no longer be persons protected by the Convention. Thus, their treatment could not give rise to a grave breach under article 130, nor constitute a violation of the WCA.
Further, if the President were to find that all Taliban prisoners did not enjoy the status of POWs under article 4, they would not be legally entitled to the standards of treatment in common article 3. As the Afghanistan war is international in nature, involving as it does the use of force by state parties – the United States and Great Britain – which are outside of Afghanistan, common article 3 by its very terms would not apply. Common article 3, as we have explained earlier, does not serve as a catch-all provision that applies to all armed conflicts, but rather as a specific complement to common article 2. Further, in reaching the article 4 analysis, the United States would be accepting that Geneva Convention jurisdiction existed over the conflict pursuant to common article 2. Common article 3 by its text would not apply, and therefore any violation of its terms would not constitute a violation of the WCA. 
United States, Department of Justice, Office of Legal Counsel, Memorandum by Jay S. Bybee, Assistant Attorney General, for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of Defense, Application of Treaties and Laws to al Qaeda and Taliban Detainees, 22 January 2002, pp. 30–32.
Conclusion
For the foregoing reasons, we conclude that neither the federal War Crimes Act nor the Geneva Conventions would apply to the detention conditions of al Qaeda prisoners. We also conclude that the President has the plenary constitutional power to suspend our treaty obligations toward Afghanistan during the period of the conflict. He may exercise that discretion on the basis that Afghanistan was a failed state. Even if he chose not to, he could interpret Geneva III to find that members of the Taliban militia failed to qualify as POWs under the terms of the treaty. We also conclude that customary international law has no binding legal effect on either the President or the military because it is not federal law, as recognized by the Constitution.
We should make clear that in reaching a decision to suspend our treaty obligations or to construe Geneva III to conclude that members of the Taliban militia are not POWs, the President need not make any specific finding. Rather, he need only authorize or approve policies that would be consistent with the understanding that al Qaeda and Taliban prisoners are not POWs under Geneva III.  
United States, Department of Justice, Office of Legal Counsel, Memorandum by Jay S. Bybee, Assistant Attorney General, for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of Defense, Application of Treaties and Laws to al Qaeda and Taliban Detainees, 22 January 2002, p. 37.
United States of America
In May 2004, the US Secretary of Defense provided a media briefing whilst en-route to Baghdad. In responding to a question concerning the applicability of the 1949 Geneva Conventions to members of the Taliban and al-Qaeda with regard to their status as combatants, he responded:
[T]he Geneva Convention applied to parties, states. It did not apply to terrorist organizations like Al-Qaeda. Therefore, Al-Qaeda was not covered specifically by Geneva Convention. It did apply to Afghanistan and Taliban – and I’m going to be careful how I say this – because Taliban was running Afghanistan at the time so it applied. And the President said so. This was a presidential decision with hundreds of lawyers involved in it. They then concluded that the Taliban did not qualify because under Geneva there are certain things that one looks for to determine whether or not they are lawful or unlawful combatants. Had the Taliban worn uniforms, had the Taliban used weapons that were visible, had the Taliban functioned in a chain of command, had the Taliban done three or four other things that are the indicators or the criteria by which Geneva suggests it be judged as to whether someone is or is not a lawful or unlawful combatant. Had they had those characteristics and met those criteria, the President would have announced that the Geneva Convention applied specifically to Taliban. The judgment was that they did not meet those. They were not running around in uniforms. They were not doing those things that lawful combatants do. So the President made a decision that not only Al-Qaeda did not merit under the criteria of Geneva, the specific provisions as lawful combatants, but so too Taliban did not even though Afghanistan did as a country.
Geneva is designed to distinguish between lawful combatants like our men and women in uniform who we want protected under Geneva, because they wear uniforms, they wear – carry weapons that are exposed, they do function in a chain of command, they meet the criteria. And the Geneva Conventions were designed to protect people like that and not to protect people not like that.
So to the extent that unlawful combatants do what they do, that is to say blend into civilian, women and children, put them at risk, put them in danger, attack men and women and children who are civilians and innocents, to the extent they do that they are deemed by Geneva Convention to not be appropriate to fall under the provisions of Geneva. 
United States, Department of Defense, Secretary of Defense, Donald H. Rumsfeld, Media Briefing, Secretary Rumsfeld Media Availability Enroute to Baghdad, 13 May 2004.
No data.
No data.
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International Criminal Tribunal for the former Yugoslavia
In its judgment in the Galić case in 2003, the ICTY Trial Chamber stated:
In order to promote the protection of civilians, combatants are under the obligation to distinguish themselves at all times from the civilian population; the generally accepted practice is that they do so by wearing uniforms, or at least a distinctive sign, and by carrying their weapons openly. 
ICTY, Galić case, Judgment, 5 December 2003, § 50.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
While engaged in combat action or in a military operation preparatory to it, combatants must distinguish themselves from the civilian population.
Members of regular and assimilated armed forces normally distinguish themselves by their uniform.
Members of other armed forces wear a fixed recognizable distinctive sign and carry their arms openly. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 48.
ICRC
In a communication to the press issued in 2000 in connection with the hostilities in the Near East, the ICRC reminded all those involved that in order “to avoid endangering the civilian population, those bearing weapons and all those who take part in violence must distinguish themselves from civilians”. 
ICRC, Communication to the Press No. 00/42, ICRC Appeal to All Involved in Violence in the Near East, 21 November 2000.
No data.
Hague Regulations (1899)
Article 2 of the 1899 Hague Regulations provides:
The population of a territory which has not been occupied who, on the enemy’s approach, spontaneously take up arms to resist the invading troops without having time to organize themselves in accordance with Article 1, shall be regarded as belligerents, if they respect the laws and customs of war. 
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, Article 2.
Hague Regulations (1907)
Article 2 of the 1907 Hague Regulations provides:
The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war. 
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 2.
Geneva Convention III
Article 4(A)(6) of the 1949 Geneva Convention III grants prisoner-of-war status to persons taking part in a levée en masse “provided they carry arms openly and respect the laws and customs of war”. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 4(A)(6).
Lieber Code
The 1863 Lieber Code states:
51. If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at the approach of a hostile army, rise, under a duly authorized levy “en masse” to resist the invader, they are now treated as public enemies, and, if captured, are prisoners of war.
52. No belligerent has the right to declare that he will treat every captured man in arms of a levy “en masse” as a brigand or bandit.
If, however, the people of a country, or any portion of the same, already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled to their protection. 
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Articles 51 and 52.
Brussels Declaration
Article 10 of the 1874 Brussels Declaration states:
The population of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves … shall be regarded as belligerents if they respect the laws and customs of war. 
Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, Article 10.
Oxford Manual
Article 2 of the 1880 Oxford Manual states:
The armed force of a State includes … the inhabitants of non-occupied territory, who, on the approach of the enemy, take up arms spontaneously and openly to resist the invading troops, even if they have not had time to organize themselves.  
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 2.
Argentina
Argentina’s Law of War Manual (1969) provides that participants in a levée en masse enjoy prisoner-of-war status upon capture provided they carry arms openly and respect the laws and customs of war. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 2.002(6).
Australia
Australia’s Defence Force Manual (1994) provides:
Where the inhabitants of a country or territory spontaneously “take up arms” to resist an invader, LOAC recognises them as combatants provided they do so when there has not been time to form themselves into units and they respect LOAC. Individuals acting on their own are not entitled to combatant status nor the benefits or detriment flowing from that status. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 514; see also Glossary, p. xxiv and Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 612.
Australia
Australia’s LOAC Manual (2006) defines “levée en masse” as follows:
Where the inhabitants of a country or territory spontaneously “take up arms” to resist an invader, the LOAC recognises them as combatants provided they do so when there has not been time to form themselves into units and they respect the LOAC. Individuals acting on their own are not entitled to combatant status nor the benefits or detriment flowing from that status. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.14; see also Glossary, p. 3.
The manual further states:
Civilian residents of occupied territory who commit sabotage or espionage in that territory may be punished if captured. This does not apply to members of:
• a levee en masse while acting in those capacities.
These people are to be treated as PW [prisoners of war]. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.21; see also § 10.6.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states:
The population of a non-occupied territory who spontaneously take up arms to resist the invading forces without having had time to form themselves into an organized resistance movement or to join the regular armed forces are considered combatants on the condition that this population:
a. respects the laws and customs of war;
b. carries arms openly. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 20.
Cameroon
Cameroon’s Instructor’s Manual (1992) states that participants in a levée en masse are recognized as combatants. 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 35; see also pp. 20 and 143.
Cameroon
Cameroon’s Instructor’s Manual (2006) states that “civilians who spontaneously take up arms in a levée en masse generally qualify as combatants”. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 21, § 111; see also p. 41, § 211, p. 67, § 301, p. 111, § 381, p. 153, § 441 and p. 179, § 491.A.
The manual, under the heading “Prisoners of War”, also states:
People who, surprised by the enemy within a territory originally not occupied, [take up arms and] respect the law of armed conflict and international humanitarian law in the course of a levée en masse, may fall within this category. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 94, § 352.28; see also p. 137, § 412.281.
Canada
Canada’s LOAC Manual (1999) provides:
As a general rule, civilians are considered non-combatants and cannot lawfully engage in hostilities. There is, however, an exception to this rule for inhabitants of a territory that has not been occupied by an enemy. Where they have not had time to form themselves into regular armed units, inhabitants of a non-occupied territory are lawful combatants if:
a. on the approach of the enemy they spontaneously take up arms to resist the invading forces;
b. they carry arms openly; and
c. they respect the LOAC.
This situation is referred to as a levée en masse. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 3-2, § 13.
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status”:
As a general rule, civilians are considered non-combatants and cannot lawfully engage in hostilities. There is, however, an exception to this rule for inhabitants of a territory that has not been occupied by an enemy. Where they have not had time to form themselves into regular armed units, inhabitants of a non-occupied territory are lawful combatants if:
a. on the approach of the enemy they spontaneously take up arms to resist the invading forces;
b. they carry arms openly; and
c. they respect the LOAC.
This situation is referred to as a “levée en masse. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 306.
In its chapter on the treatment of prisoners of war (PWs), the manual further states: “If captured and detained, the following persons are not entitled to PW status, but they must nevertheless be treated humanely: … a. civilians who take part in hostilities other than a levée en masse”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1007.1.a.
(emphasis in original)
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
1. … The following personnel, immediately upon falling into the hands of a capturing force, acquire PW [prisoner-of-war] status and are protected by [the 1949 Geneva Convention III]:
f. Inhabitants of non-occupied territory who spontaneously take up arms on the approach of invading forces, without having had time to form themselves into regular armed units, provided that they carry arms openly and respect the laws of war. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 109.1.g.
Chad
Chad’s Instructor’s Manual (2006) states:
The inhabitants of an unoccupied territory who, as the enemy approaches, spontaneously take up arms en masse to combat the invading troops without having had the time to form regular armed forces will be considered to be combatants
(a) if they carry weapons openly;
(b) if they respect the law of war. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 55.
Germany
Germany’s Military Manual (1992) provides that members of a levée en masse “shall be combatants. They shall carry arms openly and respect the laws and customs of war in their military operations.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 310.
Italy
Italy’s IHL Manual (1991) states that participants in a levée en masse are considered combatants provided they “carry arms openly and respect the laws and customs of war”. 
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 4(c).
Kenya
Kenya’s LOAC Manual (1997) states that: “Participants in a levée en masse … are considered as combatants if: (a) they carry their arms openly [and] (b) they comply with the law of armed conflict.” 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 8.
Madagascar
Madagascar’s Military Manual (1994) states that: “Participants in a levée en masse are considered as combatants if they carry arms openly and respect the law of war.” 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 2-SO, § A.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on prisoner-of-war status under the 1949 Geneva Convention III, states:
Prisoner-of-war status or treatment also covers various categories of people who do not come under the definition of combatant, but are entitled to prisoner-of-war status:
A. those taking part in a levée en masse, that is, the inhabitants of an unoccupied territory who spontaneously take up arms, on the approach of the enemy, to resist the invading forces, without having had time to form themselves into regular armed units, provided that they carry arms openly and respect the laws and customs of war. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 145(A).
Mexico
Mexico’s IHL Guidelines (2009) states:
The inhabitants of a non-occupied territory who have spontaneously taken up arms, on the approach of the enemy, to resist invading forces, without having had time to form themselves into regular armed units are considered combatants, provided that they carry their arms openly and respect the law of armed conflict. 
Mexico, Cartilla de Derecho Internacional Humanitario, Ministry of National Defence, 2009, § 3.
Netherlands
The Military Manual (1993) of the Netherlands states that participants in a levée en masse are considered as combatants if “they carry arms openly and comply with the humanitarian law of war”. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, pp. III-1 and III-2.
Netherlands
The Military Manual (2005) of the Netherlands states that combatants include: “the population of an unoccupied area which spontaneously takes up arms when the enemy approaches, to repel the invading troops. This is called a mass uprising. The requirement is that they openly bear arms and obey the rules of the humanitarian law of war.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0304.
New Zealand
New Zealand’s Military Manual (1992) states:
Civilians who take up arms on the approach of an enemy to resist the invasion of their State constitute a levée en masse and are regarded as combatants so long as they carry their arms openly and respect the laws and customs of war … They are not entitled to such treatment if they take up arms after their territory has been occupied, unless they are so organised as to constitute a resistance movement. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, §§ 803(2) and 806(4).
Nigeria
According to Nigeria’s Manual on the Laws of War, “inhabitants of a territory not under occupation, who on the approach of the enemy take up arms to resist the invading forces without having had time to form themselves into regular armed units,” have the right to prisoner-of-war status, “provided they carry arms openly and respect the Laws of War”. 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 33(f).
Peru
Peru’s IHL Manual (2004) defines the term “levée en masse” as:
The term applied to the inhabitants of a territory which has not been occupied, who on the approach of the enemy spontaneously take up arms to resist the invading troops without having had time to organize themselves into regular armed forces. They must be regarded as combatants if they carry arms openly and respect the laws and customs of armed conflict. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, Annex 9, Glossary of Terms.
The manual further states: “The definition [of prisoner of war] is extended to include other categories, such as civilians who spontaneously take up arms to combat the enemy.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 33.a.(2).
Peru
Peru’s IHL and Human Rights Manual (2010) defines the term “levée en masse” in its Glossary of Terms as:
The term applied to the inhabitants of a territory which has not been occupied, who on the approach of the enemy spontaneously take up arms to resist the invading troops without having had time to organize themselves into regular armed forces. They must be regarded as combatants if they carry arms openly and respect the laws and customs of armed conflict. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, p. 408; see also § 35(b)(5), p. 253.
Poland
Poland’s Prisoner of War Handling Procedures (2009) states in the section on definitions:
Prisoner of war
A person captured by the opposing side and belonging to one of the following categories:
6. Inhabitants of non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form regular armed units, provided they carry arms openly and respect the law and customs of war. 
Poland, Norma Obronna NO-02-A020:2000, Procedury postępowania z jeńcami wojennymi, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 1.3.1.
Russian Federation
The Russian Federation’s Military Manual (1990) provides that participants in a levée en masse enjoy prisoner-of-war status upon capture provided they carry arms openly and respect IHL. 
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 13.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
In addition [to captured combatants], the following persons captured by the enemy are also prisoners of war:
- inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the rules of international humanitarian law. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 1.
South Africa
South Africa’s LOAC Manual (1996) states that participants in a levée en masse are considered combatants “if they carry arms openly and respect the law of war”. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 24(b). This manual is also included in Chapter 4 of the Draft Civic Education Manual of 1997.
South Africa
South Africa’s Revised Civic Education Manual (2004) states:
Participants in a “Levee en Masse”. Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously and in mass take up arms to resist the invading forces, without having had time to organise themselves into armed units, are considered combatants if they carry their arms openly and respect the laws of war. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 47(b).
Spain
Spain’s LOAC Manual (1996) considers the population of a territory that spontaneously takes up arms against an invading army to be combatants, provided they are part of an organized force, commanded by a person responsible for the conduct of his or her subordinates, subject to an internal disciplinary system, and comply with the law of war. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 1.3.a.(1).
Spain
Spain’s LOAC Manual (2007) states that “inhabitants of a territory who spontaneously take up arms to resist invading forces” are lawful combatants. [Such inhabitants] “must also fulfil the following collective requirements to be considered lawful combatants”:
- organized forces;
- under a command responsible for the conduct of its subordinates;
- internal disciplinary system;
- compliance with the law of armed conflict. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 1.3.a.(1).
The manual further states: “The civilian population has the right to spontaneously take up arms to resist the invading forces, provided that they carry arms openly and respect the law of armed conflict.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.7.a.(1).
Switzerland
Switzerland’s Basic Military Manual (1987) states: “The civilian population does not have the right to take up arms except in the case of a levée en masse to resist an invader.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 26(3).
The manual further states:
The civilian population of a non-occupied territory which, en masse, takes up arms spontaneously at the approach of the enemy is entitled to commit acts of war, even if this population did not have time to organize itself, provided arms are carried openly and the laws and customs of war are respected. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 65.
Ukraine
Ukraine’s IHL Manual (2004) states that prisoner-of-war status is provided to, among others:
Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units (provided they carry arms openly and respect the rules of international humanitarian law). 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.31.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) considers that participants in a levée en masse
are recognised as being entitled to the privileges of belligerent forces if they fulfil the last two conditions laid down for irregulars, namely, if they carry arms openly and conduct their operations in accordance with the laws and customs of war. They are exempt from the obligations of being under the command of a responsible commander and wearing a distinctive sign. The inhabitants of a territory already invaded by the enemy who rise in arms do not enjoy the privileges of belligerent forces and are not entitled to be treated as prisoners of war, unless they are members of organised resistance movements fulfilling the conditions set out in the P.O.W. Convention, Art. 4A(2). 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 97; see also The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 3, pp. 8–9, § 1(c).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
A levée en masse occurs where the “inhabitants of a territory not under occupation … on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves …” These inhabitants are treated as combatants provided that they carry arms openly and respect the laws and customs of war. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 4.8.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004), as amended in 2010, states that “when they [members of the civilian population] take part in the exceptional circumstances of a levée en masse, they … lose their civilian status, become combatants and are entitled to prisoner of war status.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, as amended by Amendment 3, Ministry of Defence, September 2010, § 4.2.2.
United States of America
The US Air Force Pamphlet (1976) provides:
A levée en masse need not be organized, under command, or wear a distinctive sign. However, members must carry arms openly and comply with the law of armed conflict. To be a lawful levée en masse, it must be a spontaneous response by inhabitants of a territory not under occupation to an invading force. Spontaneity requires that there be no time to organize into regular armed forces. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 3-2(b)(5); see also Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 65.
United States of America
The US Naval Handbook (2007) states:
Lawful combatants … include civilians who take part in a levee en masse. A levee en masse is a spontaneous uprising by the citizens of a nonoccupied territory who take up arms to resist an invading force without having time to form themselves into regular armed units. Combatant immunity for a levee en masse ends once the invading forces have occupied the territory. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 5.4.1.1.
Yugoslavia, Socialist Federal Republic of
The Military Manual (1988) of the Socialist Federal Republic of Yugoslavia states that participants in a levée en masse are considered members of the armed forces if they carry arms openly and respect the law of war. 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ , PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 48(3).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
No data.
Belgium
In 1991, a Belgian parliamentary report considered that in the case of a levée en masse, actions in defence of the territory are permitted and justified by law even if they are not ordered by a proper authority. 
Belgium, Senate, Report, Enquête parlementaire sur l’existence en Belgique d’un réseau de renseignements clandestin international, 1990–1991 Session, Doc. 1117-4, 1 October 1991, § 24.
No data.
No data.
No data.
International Criminal Tribunal for the former Yugoslavia
In the Orić case before the ICTY in 2005, the accused, appointed as commander of the Srebrenica Territorial Defence (TO) Headquarters in 1992, was charged with several counts of violations of the laws or customs of war (murder, cruel treatment, wanton destruction of cities, towns or villages not justified by military necessity), punishable under Article 3 of the 1993 ICTY Statute, for his alleged role in events occurring in the Srebrenica enclave in 1992–1993. 
ICTY, Orić case, Third Amended Indictment, 30 June 2005, Counts 1–3 and 5.
In its judgment in 2006, the ICTY Trial Chamber, analysing the character of the Bosnian Muslim Forces in the Srebrenica area in and around 1992, stated:
133. The definition of a levée en masse is well settled in international law. Article 2 of the 1907 Hague Regulations provides that
[t]he inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops, without having had time to organise themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.
Article 1 of the 1907 Hague Regulations requires such belligerents
1. to be commanded by a person responsible for his subordinates;
2. to have a fixed distinctive emblem recognisable at a distance;
3. to carry arms openly; and
4. to conduct their operations in accordance with the laws and customs of war.
135. From its inception, the ABiH [Army of Bosnia and Herzegovina] sought to provide its members with means of identification such as uniforms, badges and insignia. In the Srebrenica area, however, with the exception of the members of the 16th East Bosnian Muslim Brigade …, very few individuals possessed a complete uniform in 1992 and 1993. Before and after the arrival of this brigade in the area in early August 1992, most Bosnian Muslim fighters wore makeshift or parts of JNA [Yugoslav People’s Army] uniforms. To make up for the lack of adequate clothing, civilians also sometimes wore parts of uniforms. There is evidence indicating that during some attacks, fighters wore coloured ribbons around their heads or arms for identification purposes amongst themselves. Apart from these disparate uniforms and ribbons, fighters did not wear fixed distinctive emblems recognisable at a distance.
136. The Trial Chamber comes to the conclusion that while the situation in Srebrenica may be characterised as a levée en masse at the time of the Serb takeover and immediately thereafter in April and early May 1992, the concept by definition excludes its application to long-term situations. Given the circumstances in the present case, the Trial Chamber does not find the term levée en masse to be an appropriate characterisation of the organisational level of the Bosnian Muslim forces at the time and place relevant to the Indictment. 
ICTY, Orić case, Judgment, 30 June 2006, §§ 133 and 135–136.
The Trial Chamber found the accused guilty of the failure to discharge his duty as a superior to prevent the occurrence of murder and cruel treatment from 27 December 1992 to 20 March 1993. He was sentenced to two years’ imprisonment. 
ICTY, Orić case, Judgment, 30 June 2006, §§ 578, 782, X. Disposition.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously and in mass take up arms to resist the invading forces, without having had time to form themselves into organized armed units, provided they carry arms openly and respect the law of war, are considered as combatants. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 50.
No data.
Note: The practice relating to Rules 3 and 4 provides numerous references to the requirements for resistance movements to be considered as combatants, notably by having a distinctive sign and carrying arms openly, as provided for in Article 4(A)(2) of the 1949 Geneva Convention III. These are not, generally, repeated here.
Additional Protocol I
Article 44(3) of the 1977 Additional Protocol I provides:
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.
Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 c). 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 44(3). Article 44 was adopted by 73 votes in favour, one against and 21 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 121.
Additional Protocol I
Article 45(3) of the 1977 Additional Protocol I provides:
Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 45(3). Article 45 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 155.
No data.
Argentina
Argentina’s Law of War Manual (1989) 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.
Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c). 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.08(3).
Australia
Australia’s Defence Force Manual (1994) states:
A member of the armed forces does not lose combatant status merely by operating covertly or as a guerilla. That is, while combatants are normally expected to distinguish themselves from the civilian population by wearing a uniform, LOAC recognizes that they do not have to wear a uniform on operations to retain their status as combatants. This is conditional on combatants who cannot so distinguish themselves because of the nature of hostilities, openly by carrying arms during:
a. each military engagement, and
(1) such times as they are visible to the adversary while engaged in a military deployment preceding the launching of an attack in which they are to participate. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 513.
Australia
Australia’s LOAC Manual (2006) states in its chapter on “Targeting”:
A member of the armed forces does not lose combatant status merely by operating covertly or as a guerrilla. That is, while combatants are normally expected to distinguish themselves from the civilian population by wearing a uniform, the LOAC recognises that they do not have to wear a uniform on operations to retain their status as combatants. This is conditional on combatants who cannot so distinguish themselves because of the nature of hostilities, openly carrying arms during:
• each military engagement, and
• at such times as they are visible to the adversary while engaged in a military deployment preceding the launching of an attack in which they are to participate. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.13.
The manual also states:
Civilian residents of occupied territory who commit sabotage or espionage in that territory may be punished if captured. This does not apply to members of:
• national liberation movements engaged in a conflict seeking self-determination;
• resistance or properly organised guerrilla movements;
These people are to be treated as PW [prisoners of war]. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.21.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states:
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.
Acts which comply with the requirements of this paragraph shall not be considered as perfidious. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, pp. 20–21.
It would be preferable that Belgium only supports this rule on condition that it does not apply to operations on non-occupied Belgian territory. The term “military deployment” should, on the other hand, be interpreted very widely in the sense that it covers every movement towards the place from which an attack is to be launched. To be “visible” includes being able to “be observed” even at night by means of infrared rays and the notion “adversary” should be clarified. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 21.
Benin
According to Benin’s Military Manual (1995), combatants “distinguish themselves … at least by carrying arms openly”. 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule I, p. 12.
Cameroon
Cameroon’s Instructor’s Manual (2006), under the heading “Combatants”, states:
He must distinguish himself from the civilian population while he takes part in an attack or an operation preparatory to an attack. But, in a situation in which for reasons related to the nature of hostilities, a combatant cannot distinguish himself from the civilian population, he retains his status as combatant if he carries his arms openly:
a) during each military engagement;
b) for as long as he is visible to the enemy when he takes part in a military deployment. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 210, § 512.
Canada
Canada’s LOAC Manual (1999) states:
There may be situations where, owing to the nature of the hostilities, armed combatants (such as resistance movements) cannot normally distinguish themselves from the civilian population. In such situations, those personnel retain their status as lawful combatants and their entitlement to prisoner of war status upon capture provided that they carry their arms openly:
a. during each military engagement, and
b. during each time as they are visible to the adversary while they are engaged in a military deployment preceding the launching of an attack in which they are to participate. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 3-2, § 16.
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status”:
1. To ensure the protection of the civilian population, combatants are required to distinguish themselves from that population when engaging in an attack or preparing to mount an attack.
2. There may be situations where, owing to the nature of the hostilities, armed combatants (such as resistance movements) cannot normally distinguish themselves from the civilian population. In such situations, those personnel retain their status as lawful combatants and their entitlement to prisoner of war status upon capture provided they carry their arms openly:
a. during each military engagement, and
b. during such time as they are visible to the adversary while they are engaged in a military deployment preceding the launching of an attack in which they are to participate. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 308.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
1. … The following personnel, immediately upon falling into the hands of a capturing force, acquire PW [prisoner-of-war] status and are protected by [the 1949 Geneva Convention III]:
b. [the Article 4(A)(2) of the 1949 Geneva Convention III list of requirements for resistance movements to be considered as combatants]
g. In certain restricted circumstances, the provision of paragraph 1b can be relaxed so that it is sufficient if a combatant carries his arms openly during each military engagement and 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. In cases of this nature, it may be necessary to hold a PW [Prisoner-of-War] Status Determination Tribunal. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 109.1.g.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):
Chapter 3. Identification
I.2. Combatants
The law admits that there are circumstances in which a combatant need not necessarily wear a uniform nor display a fixed distinctive sign in order to be entitled to prisoner-of-war status. This is the case in occupied territories, where, owing to the nature of the conflict, combatants cannot distinguish themselves from the civilian population in that manner. In such a case, they will nevertheless be regarded as combatants if they are under a responsible command and an internal disciplinary system.
They must further carry their arms openly:
- during each military engagement;
- when they deploy on a military operation and are visible to the enemy.
In other words, these persons are, at the time of combat, men or women clearly armed who do not try to dissimulate their military intentions. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 27–28.
Croatia
Croatia’s LOAC Compendium (1991) states that combatants must carry their arms openly “at least during every military engagement [and] as long as they are visible to the enemy while engaged in a military deployment”. 
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 6.
Ecuador
Ecuador’s Naval Manual (1989) provides that guerrilleros and members of resistance movements are considered combatants if they meet certain requirements, including “wearing a uniform or some form of identification recognizable from a distance [and] carrying arms openly”. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 11.8.
France
France’s LOAC Manual (2001) states:
Members of guerrilla movements or armed groups can have combatant status … provided they carry arms openly during each engagement and they are subject to a hierarchical command structure and an internal disciplinary system which ensures, in particular, respect for the law of armed conflict. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 39.
Under the heading “Guerilla”, the manual restates, inter alia, Article 4(A)(2) of the 1949 Geneva Convention III, and provides: “Permitted to fight and to obtain the status of prisoner of war in the case of capture are resistance fighters, militias and volunteer corps who are not part of the regular army but who respond to the definition [therein].” 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, pp. 70–71.
Under the heading “Resistance”, the manual restates Article 4(A)(2) of the 1949 Geneva Convention III, and further provides:
Inherited from World War II, this term refers to activities carried out against occupation forces and inspired by guerrilla techniques. The “resistance fighters” have combatant status, under the condition that they respect the provisions of Article 4 of the Geneva Convention III of 12 August 1949 relative to the Treatment of Prisoners of War, above. At the moment when they act, and whatever the circumstances, the members of a resistance movement must take all necessary measures to distinguish themselves clearly from the civilian population. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, pp. 110–111.
Germany
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. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 309
Hungary
According to Hungary’s Military Manual (1992), combatants must carry their arms openly “at least during every military engagement [and] as long as they are visible to the enemy while engaged in a military deployment”. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 17.
The manual further states: “Inhabitants of occupied territory may organize resistance movements. Members are combatants if they meet the requirements of armed forces.” 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 103.
Israel
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, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, pp. 50–51.
Israel
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. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, pp. 29–33.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
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. 
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 5.
Kenya
Kenya’s LOAC manual (1997) states:
All combatants are required to distinguish themselves from the civilian population, usually by wearing uniform. However, where because of unusual combat conditions they are unable to do so, they do not lose their combatant status provided that they carry their arms openly
(a) during every military engagement and
(b) as long as they are visible to the enemy while engaged in a military deployment, that is, in any movement towards a place from which or where a combat action is to take place. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 8.
[emphasis in original]
Madagascar
Madagascar’s Military Manual (1994) states:
All combatants are required to distinguish themselves from the civilian population during each military engagement or a preparatory military operation. Regular armed forces or those forces attached to them distinguish themselves usually by wearing uniform. However, where because of the nature of hostilities, they are unable to do so, they do not lose their combatant status provided that they carry their arms openly. 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 2-SO, § A
[emphasis in original]
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on prisoner-of-war status under the 1949 Geneva Convention III, states:
146. …
In exceptional cases, when required by the nature of the hostilities, combatants may be released from the obligation to distinguish themselves from the civilian population by wearing a uniform or a fixed distinctive sign recognizable at a distance during military operations. However, in such situations, these combatants must distinguish themselves by carrying arms openly during the engagement and during such time as they are visible to the adversary while engaged in a military deployment preceding the launching of an attack in which they are to participate. Failure to comply with the obligation to carry arms openly can deprive combatants of their status, but not of the rights and guarantees relating to it, if they are prosecuted for carrying weapons illegally either with or without other offences.
148. To avoid uncertainty and prevent any arbitrary measures at the time of capture, it is provided that persons taking part in hostilities and captured must be presumed to be prisoners of war and treated as such, even in the event of doubt as to their status. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, §§ 146 and 148.
Netherlands
The Military Manual (1993) of the Netherlands states:
In a “war of liberation” and in case of resistance in occupied territory, it is usually difficult to fully fulfil the elementary requirements placed upon combatants. In armed conflicts which are waged with guerrilla-like tactics it is not feasible for combatants to distinguish themselves at all times from the civilian population and to carry arms openly continuously.
Therefore, additional rules apply to “wars of liberation” and for resistance in occupied territory. These rules are based on the fact that, in principle, combatants ought to comply with the general requirement of distinction from the civilian population. There are, however, situations in which armed combatants cannot distinguish themselves from the civilian population owing to the nature of hostilities. In such situations, fighters nevertheless maintain their status of combatants provided they carry their arms openly:
- during each military engagement, and
- whilst engaged in a military deployment preceding an action.
The Netherlands has joined the position of a number of NATO countries that the phrase “engaged in a military deployment” means “any movement towards a place from which an attack will be launched”.
This rule implies more relaxed standards for combatants in a war of liberation or in case of resistance in occupied territory. They no longer need to be in uniform or to wear a distinctive emblem. They only need to carry their arms openly in specific circumstances. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. III-4.
Netherlands
The Military Handbook (1995) of the Netherlands states:
Combatants have to distinguish themselves through their uniform or through a fixed and visible distinctive sign. In any case, combatants have to distinguish themselves by carrying their arms openly during each military engagement and during such time as they are visible to the adversary while they are engaged in a military deployment preceding the launching of an attack. 
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-39.
Netherlands
The Military Manual (2005) of the Netherlands states:
Section 4 - Freedom fighters and resistance fighters
0316. In a “war of liberation” … and in a resistance movement in occupied territory, it is usually difficult exactly to meet the elementary requirements made of a combatant. In armed conflicts fought with guerrilla-type tactics, it is simply not feasible for combatants at all times to distinguish themselves from the civilian population and constantly bear their arms openly.
0317. Freedom fighters and resistance fighters
Supplementary rules therefore apply to a “war of liberation” and to resistance in occupied territory. The main priority is that the combatant in principle should comply with the general requirement to stand out from the civilian population.
Because of the nature of the hostilities, however, situations will occur in which armed combatants cannot distinguish themselves from the civilian population.
The fighter still retains combatant status when at least bearing arms openly:
- during every military encounter; and
- when moving into position before undertaking an action.
These rules are eased for combatants in a war of liberation or for resistance in occupied territory. They no longer have to be uniformed or to wear an identifying emblem. They need to bear their arms openly only in certain circumstances.
0318. The Netherlands and a number of other NATO countries have adopted the view that “moving into position” means any movement to a place from which the attack is to be launched.
0319. Combatants in the situation described here, who do not bear their arms openly and who fall into the hands of the other side, forfeit their right to be treated as prisoners of war. They should, however, be granted protection equivalent to that normally afforded to prisoners of war. This supplementary regulation is a clear compromise. It takes account of the interests of the fighters because, in principle, they are recognized as combatants and only exceptionally forfeit that status. It takes account of the other side’s interests because, precisely in that exceptional case, it may try and punish those caught “in the act” as persons without status.
No examples of this provision yet exist. It is assumed generally that it is not simple to apply. If the Dutch armed resistance in the Second World War is examined according to the current rules, it almost certainly did not always meet the standards set under current law. It is especially doubtful whether arms were carried openly during the periods now described in AP I [1977 Additional Protocol I] Article 44 (see point 0317). 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 0316–0319.
The manual further states:
Freedom and resistance fighters in a “war of liberation” (see points 0316 ff.), who do not meet the set minimum requirements for action as combatants, do not acquire prisoner-of-war status when they fall into the hands of the adversary.
The minimum requirements relate to the open bearing of arms:
- during each military encounter and
- when taking up position prior to commencement of an action.
Such persons certainly must be afforded protection equivalent in every respect to that granted under the Prisoners of War Convention [1949 Geneva Convention III]. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0705.
New Zealand
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. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 805(3) and (4).
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. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 805(3), footnote 17.
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. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 805(4), footnote 23.
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.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 805(4), footnote 24.
Russian Federation
The Russian Federation’s Military Manual (1990) provides that members of organized resistance movements enjoy prisoner-of-war status upon capture provided they fulfil the conditions set out in Article 4(A)(2) of the 1949 Geneva Convention III. 
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 13.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
In addition [to captured combatants], the following persons captured by the enemy are also prisoners of war:
- members of militias and of volunteer corps, including those of organized resistance movements, belonging to a party to the conflict. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 1.
South Africa
South Africa’s LOAC Manual (1996) states:
In situations where armed combatants cannot distinguish themselves owing to the nature of the hostilities, they retain their status as combatants if they carry their arms openly during every military engagement and for as long as they are visible to the enemy while engaged in a military deployment (ie any movement towards a place from which, or where, a combat action is to take place). 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 27. This manual is also included in Chapter 4 of the Draft Civic Education Manual of 1997
South Africa
South Africa’s Revised Civic Education Manual (2004) states:
In situations where armed combatants cannot distinguish themselves owing to the nature of the hostilities, they retain their status as combatants if they carry their arms openly during every military engagement and for as long as they are visible to the enemy while engaged in a military deployment (i.e. any movement towards a place from which, or where, a combat action is to take place). 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, [in a section numbered § 31, while in fact located between § 49 and § 50].
Spain
Spain’s LOAC Manual (1996) states that guerrilleros are considered lawful combatants if “they operate in occupied territory, carry arms openly during each engagement and during any movement towards the place from which or towards which an attack is to be launched”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 1.3.a.(1).
Spain
Spain’s LOAC Manual (2007) states that “guerrillas are only considered lawful combatants when they act in occupied territory and carry their arms openly during operations and any movement towards a place from or on which an attack is to be launched”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 1.3.a.(1).
The manual further states: “It is accepted that, in some cases, combatants are unable to distinguish themselves as such because of the ‘nature of the hostilities’.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.4.c.(8).
Sweden
Sweden’s IHL Manual (1991) states:
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.
Acts which comply with the requirements of this paragraph shall not be considered as perfidious. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.4.
Sweden’s IHL Manual states: “The rule in Article 44:3 may only be applied by resistance units in enemy occupied or held territory or – in the case of a national liberation movement – within an area controlled by the adversary.” The manual considers that part of the text contained in the second sentence of Article 44(3) of the 1977 Additional Protocol I, namely the description “during the time the combatant is visible to the adversary when participating in military preparation for the launching of an attack in which he is to take part”, is “very unclear, giving rise to varying interpretations”. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.4, p. 37.
Switzerland
Switzerland’s Basic Military Manual (1987) states:
Exceptionally, for example, in the case of guerrilla warfare, combatants are not obliged to wear a uniform or a distinctive sign. They are considered as members of the armed forces who have the right to prisoner-of-war status, provided they fight for a State or a liberation movement, within an organization which has a responsible command and a disciplinary system, and provided they carry their arms openly before and during an attack. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 26(2); see also Article 64.
United Kingdom of Great Britain and Northern Ireland
The United Kingdom’s LOAC Pamphlet (1981) states:
2. All combatants are required to distinguish themselves from the civilian population, usually by wearing uniform. However, where because of unusual combat conditions they are unable to do so, they do not lose their combatant status provided that they carry their arms openly:
(a) during each military engagement, and
(b) while visible to the enemy when deploying before attack.
3. These unusual combat conditions can only occur in occupied territories and during wars of national liberation.
5. “Deployment” in this context means any movement towards the place from which an attack is to be launched. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 3, p. 9, §§ 2, 3 and 5.
[emphasis in original]
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
4.5. “There are situations in armed conflicts where, owing to the nature of the hostilities, an armed combatant cannot so distinguish himself”. In such situations, a special rule applies and the individual will retain his status as a combatant provided that 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”.
In these exceptional situations, there is no obligation for a combatant to distinguish himself from the civilian population at any other time. The combatant is permitted, in effect, to disguise himself as a member of the civilian population and thereby seek to obtain the protection from attack given to the latter, except during the period of the attack and deployment.
4.5.1. Wide application of this special rule would reduce the protection of civilians to vanishing point. Members of the opposing armed forces would come to regard every civilian as likely to be a combatant in disguise and, for their own protection, would see them as proper targets for attack. The special rule is thus limited to those exceptional situations where a combatant is truly unable to operate effectively whilst distinguishing himself in accordance with the normal requirements. The United Kingdom, together with other states, made a formal statement on ratifying Additional Protocol I that this exception could only apply in occupied territory or in conflicts to which Additional Protocol I, Article 1(4) apply. Even in those cases, there are many occasions on which combatants can still comply with the general rule of distinction, which remains in force, when the special rule would not apply.
4.5.2. Members of irregular armed forces, whether they comply with the rule of distinction or not, are legitimate objects of attack when taking a direct part in hostilities.
4.5.3. Even when the special rule applies, it requires, as a condition of retaining combatant status, that arms be carried openly in two cases. The first is during a military engagement, that is, when the combatant is in contact with the enemy. The second is during such time as he is visible to the adversary while engaged in a military deployment preceding the launching of an attack in which he is to participate. The term “deployment” includes individual as well as group deployments. On ratifying Additional Protocol I, the United Kingdom, together with other states, made a formal declaration that the expression “military deployment” means any movement towards a place from which an attack is to be launched. The requirement to carry arms openly during any such movement is limited to such time as the combatant is visible to the adversary. In the light of modern technical developments, “visible” cannot be construed as meaning only “visible to the naked eye”. A combatant is accordingly required to carry his arms openly if he is visible through binoculars or, during the night, visible by the use of infra-red or image intensification devices. The test is whether the adversary is able, using such devices, to distinguish a civilian from a combatant carrying a weapon. If such distinction can be made, the combatant is “visible to the adversary”. The wide availability of these devices means that combatants who are seeking to take advantage of the special rule should carry their arms openly well before they are actually in contact with the enemy.
4.5.4. Combatants who comply with the requirements set out above will not be regarded as committing perfidious acts, such as the feigning of civilian, non-combatant status. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 4.5–4.5.4.
[emphasis in original]
United States of America
The US Air Force Pamphlet (1976) provides that irregular forces, such as members of organized resistance movements belonging to a party to the conflict, are considered combatants if they meet certain requirements “customarily required of all combatants”, including having a fixed distinctive sign recognizable at a distance and carrying arms openly. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 3-2(b)(3); see also Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 61(a)(2) and The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 11.7.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states:
Civilians who during an armed attack or a military operation preparatory to an attack do not wear any distinctive sign, that is do not distinguish themselves from the civilian population, are considered combatants and members of the armed forces, provided they carry arms openly during each military engagement as well as during such time as they are visible to the adversary preceding an attack in which they are to participate and provided they comply with the laws of war. 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 48(4).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Articles 44(3) and 45(3), is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).
Israel
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. 
Israel, Military Court at Ramallah, Kassem case, Judgment, 13 April 1969.
Israel
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. 
Israel, Nazareth District Court, Muhammad Srur case, Decision, 4 December 2007, §§ 8–9.
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. 
Israel, Nazareth District Court, Muhammad Srur case, Separate Opinion of Judge Menachem Ben David, 4 December 2007, pp. 23–24.
[emphasis in original]
Argentina
At the CDDH, Argentina abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) because “the text adopted did not guarantee the civilian population the minimum protection it needed”. 
Argentina, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 124, § 33.
Australia
Upon ratification of the 1977 Additional Protocol I, Australia stated:
It is the understanding of Australia that in relation to Article 44, 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. Australia will interpret the word “deployment” in paragraph 3(b) 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 binoculars, or by infra-red or image intensification devices. 
Australia, Declarations made upon ratification of the 1977 Additional Protocol I, 21 June 1991, § 2.
Belgium
Upon ratification of the 1977 Additional Protocol I, Belgium stated:
With respect to Article 44, the Belgian Government declares that the armed conflict situations described in paragraph 3 can arise only in occupied territory or in the armed conflicts covered by Article 1, paragraph 4, of the Protocol. Furthermore the Belgian Government interprets the term “deployment” used in subparagraph (b) of the said paragraph 3 as comprising any individual or collective movement towards a position from which an attack is to be launched. 
Belgium, Interpretative declarations made upon ratification of the 1977 Additional Protocol I, 20 May 1986, § 4.
Brazil
At the CDDH, Brazil voted against Article 42 of the draft Additional Protocol I (now Article 44) in Committee III because
the provisions relating to identification of combatants were not sufficiently clear to ensure that the civilian population would be protected from the inevitable risks when it was not possible to identify unmistakably those engaged in military activities. 
Brazil, Statement at the CDDH, Official Records, Vol. XV, CDDH/III/SR.56, 22 April 1977, p. 185, § 80.
In the final vote in plenary session, Brazil abstained but gave no additional explanation.
Canada
At the CDDH, Canada abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) because it “was concerned about the perhaps necessary vagueness of the language adopted in some paragraphs, but hoped that time would make the meaning more precise”. 
Canada, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 145, § 23.
Canada further explained its understanding that the situations referred to in the second sentence of the third paragraph “could exist only in occupied territory; or in armed conflicts as described in Article 1, paragraph 4, of Protocol I” and that the term “military deployment” meant “any movement towards a place from which an attack was to be launched”. 
Canada, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 146, § 24.
Canada
Upon ratification of the 1977 Additional Protocol I, Canada stated:
It is the understanding of the Government of Canada that:
a. the situation described in the second sentence of paragraph 3 of Article 44 can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1; and
b. the word “deployment” in paragraph 3 of Article 44 includes any movement towards a place from which an attack is to be launched. 
Canada, Reservations and statements of understanding made upon ratification of the 1977 Additional Protocol I, 20 November 1990, § 6.
Colombia
At the CDDH, Colombia abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) because it lacked precision and did not safeguard the civilian population sufficiently. 
Colombia, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 181.
Egypt
At the CDDH, Egypt stated that “the right to disguise was confined to the combatants of liberation movements; regular combatants were not released … from the obligation to wear uniform during military operations – failure to do so would be to commit an act of perfidy”. It further explained that it interpreted the expression “military deployment” as meaning “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”. 
Egypt, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 145, §§ 19 and 21.
France
Upon ratification of the 1977 Additional Protocol I, France stated:
The Government of the French Republic considers that the situation described in the second sentence of paragraph 3 of Article 44 can exist only in case a territory is occupied or in case of an armed conflict within the meaning of paragraph 4 of Article 1. The term “deployment” used in paragraph (3)(b) of this article means any movement towards a place from which an attack can be launched. 
France, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 11 April 2001, § 8.
Germany, Federal Republic of
At the CDDH, the Federal Republic of Germany stated that the second sentence of Article 42(3) of the draft Additional Protocol I (now Article 44(3)) “applies only to exceptional situations such as those occurring in occupied territories” and that the term “military deployment” means “any movement toward a place from which an attack is to be launched”. 
Germany, Federal Republic of, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 136.
Germany
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. 
Germany, Lower House of Parliament, Answer by Dr. Hamm-Brücher, Minister of State, to a written question, 13 May 1977, Plenarprotokoll 8/27, 13 May 1977, p. 1985.
Germany
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. 
Germany, Declarations made upon ratification of the 1977 Additional Protocol I, 14 February 1991, § 3.
Greece
At the CDDH, Greece stated that the situations described in the second sentence of Article 42(3) of the draft Additional Protocol I (now Article 44(3)) “which were quite exceptional, could exist not only in occupied territories but also in armed conflicts as described in paragraph 4 of Article 1 of draft Protocol I”. 
Greece, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 127, § 47.
Iran
At the CDDH, Iran indicated that Article 42(3) of the draft Additional Protocol I (now Article 44(3)) “applied only to members of resistance movements fighting in occupied territory against an Occupying Power and to members of national liberation movements fighting against minority racialist régimes”. 
Iran, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 152, § 55.
Ireland
At the CDDH, Ireland abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) because it considered that “the protection of the civilian population demanded by humanitarian principles is eroded by Article 42 to an unacceptable extent”. 
Ireland, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 137.
Ireland
Upon ratification of the 1977 Additional Protocol I, Ireland stated:
It is the understanding of Ireland that:
a. The situation described in the second sentence of paragraph 3 of Article 44 can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1; and
b. The word “deployment” in paragraph 3 of Article 44 includes any movement towards a place from which an attack is to be launched”. 
Ireland, Declarations and reservations made upon ratification of the 1977 Additional Protocol I, 19 May 1999, § 7.
Israel
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. 
Israel, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, pp. 121–122, §§ 17 and 19.
Israel
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. 
Report on the Practice of Israel, 1997, Answers to additional questions on Chapter 1.1.
Italy
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, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 122, § 20.
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”. 
Italy, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 123, § 22.
Italy
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. 
Italy, Declarations made upon ratification of the 1977 Additional Protocol I, 27 February 1986, §§ 3–4.
Japan
At the CDDH, Japan abstained in the vote on draft Article 42 of the Additional Protocol I (now Article 44) because it considered that “the provisions of paragraph 3 on the ways in which members of irregular forces were required to distinguish themselves from civilians would lead to inadequate protection of the civilian population”. 
Japan, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 152, § 51.
Japan further stated that paragraph 3 should be construed “as applying restrictively to exceptional cases” and that the term “military deployment” used in paragraph 3(b) meant “any movement towards a place from which an attack was to be launched”. 
Japan, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 152, § 53.
Netherlands
At the CDDH, the Netherlands stated that it understood the phrase “military deployment” in paragraph 3(b) of Article 42 of the draft Additional Protocol I (now Article 44) to mean “any tactical movement towards a place from which the attack is to be launched”. 
Netherlands, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 142, § 6.
Netherlands
Upon ratification of the 1977 Additional Protocol I, the Netherlands stated with regard to Article 44(3) of the Protocol:
It is the understanding of the Government of the Kingdom of the Netherlands that the works “engaged in a military deployment” mean “any movement towards a place from which an attack may be launched”. 
Netherlands, Declarations made upon ratification of the 1977 Additional Protocol I, 26 June 1987, § 3.
New Zealand
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. 
New Zealand, Declarations made upon ratification of the 1977 Additional Protocol I, 8 February 1988, § 1.
Portugal
At the CDDH, Portugal abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) and considered that “the exceptional rule in the second sentence of the [third] paragraph did not ensure reasonable protection for the civilian population”. 
Portugal, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 148, § 36.
Republic of Korea
Upon ratification of the 1977 Additional Protocol I, the Republic of Korea stated:
In relation to Article 44 of Protocol I, the situation described in the second sentence of paragraph 3 of the Article can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1, and the Government of the Republic of Korea 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. 
Republic of Korea, Declarations made upon ratification of the 1977 Additional Protocol I, 15 January 1982, § 1.
Spain
At the CDDH, Spain abstained in the vote on draft Article 42 of the Additional Protocol I (now Article 44) because:
The text presented does not guarantee the safety of the civilian population, which is the essential aim of the instruments under consideration. In the view of this delegation, the terms in which the article is drafted could favour the development of the new phenomenon known as urban guerrilla warfare and, therefore, a certain form of terrorism, thus constituting a grave danger to the security of States and a step on the road to international subversion. 
Spain, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.55, 26 May 1977, p. 138.
Spain
Upon ratification of the 1977 Additional Protocol I, Spain stated:
It is understood that the criteria mentioned in sub-paragraph b of Article 44(3) on the distinction between combatants and civilians can be applied only in occupied territories. The Spanish Government also interprets the expression “military deployment” to mean any movement towards a place from which or against which an attack is going to be launched. 
Spain, Interpretative declarations made upon ratification of the 1977 Additional Protocol I, 21 April 1989, § 4.
Switzerland
At the CDDH, Switzerland abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) because it was afraid that “the article would only have the effect of doing away with the distinctions between combatants and civilians. The consequence would be that the adverse party could take draconian measures against civilians suspected of being combatants.” 
Switzerland, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 131, § 68.
United Arab Emirates
At the CDDH, the United Arab Emirates stated that it agreed with the interpretation given by Egypt of the expression “military deployment”. 
United Arab Emirates, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 146, § 25.
United Kingdom of Great Britain and Northern Ireland
At the CDDH, the United Kingdom abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) and stated:
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 of Article 42. 
United Kingdom, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 132, § 73.
The United Kingdom further stated that it considered that “the situations in which a guerrilla fighter was unable to distinguish himself from the civilian population could exist only in occupied territory” and that the word “deployment” must be interpreted as meaning “any movement towards a place from which an attack was to be launched”. 
United Kingdom, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 132, § 74.
United Kingdom of Great Britain and Northern Ireland
Upon signature of Additional Protocol I in 1977, the United Kingdom stated in relation to Article 44 of the Protocol:
that the situation described in the second sentence of paragraph 3 of the Article can exist only in occupied territories or in armed conflicts covered by paragraph 4 of Article 1, and that the Government of the United Kingdom 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”.  
United Kingdom, Declarations made upon signature of the 1977 Additional Protocol I, 12 December 1977, § c.
The United Kingdom made a similar statement upon ratification of the Additional Protocol I in 1998. 
United Kingdom, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § g.
Uruguay
At the CDDH, Uruguay abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) and referred to the statements made by Argentina and Switzerland and to its own statement in Committee III in which it had expressed its concern about “the foreseeable consequences of the lack of a clear distinction between the combatants and the civilian population, which would expose the civilian population to a quite unnecessary risk”. 
Uruguay, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 144, § 18; Statement at the CDDH, Official Records, Vol. XV, CDDH/III/SR.55, 22 April 1977, p. 160, § 32.
United States of America
At the CDDH, the United States explained its vote in favour of Article 42 of the draft Additional Protocol I (now Article 44) as follows:
The article conferred no protection on terrorists. It did not authorize soldiers to conduct military operations while disguised as civilians. However, it did give members of the armed forces who were operating in occupied territory an incentive to distinguish themselves from the civilian population when preparing for and carrying out an attack … As regards the second sentence of paragraph 3, it was the understanding of [the US] delegation that situations in which combatants could not distinguish themselves throughout their military operations could exist only in the exceptional circumstances of territory occupied by the adversary or in those armed conflicts described in Article 1, paragraph 4, of draft Protocol I … The sentence 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 … Combatants must distinguish themselves from civilians during the phase of the military operation which involved moving to the position from which the attack was to be launched. 
United States, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, pp. 149–150, § 43.
United States of America
Upon signature of the 1977 Additional Protocol I, the United States stated:
It is the understanding of the United States of America that the phrase “military deployment preceding the launching of an attack” in Article 44, paragraph 3, means any movement towards a place from which an attack is to be launched. 
United States, Declarations made upon signature of the 1977 Additional Protocol I, 12 December 1977, § 2.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed:
The executive branch regards [the provision of Article 44(3) of the 1977 Additional Protocol I, second sentence] as highly undesirable and potentially dangerous to the civilian population and of course does not recognize it as customary law or deserving of such status. 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 425.
United States of America
In a memorandum issued in 1988, the Office of the Legal Adviser of the US Department of State stated:
Article 44 grants combatant status to irregular forces in certain circumstances even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the existing laws of war. This was not acceptable as a new norm of international law. It clearly does not reflect customary law. 
United States, Memorandum prepared by the Office of the Legal Adviser of the Department of State, 29 March 1988, reprinted in Marian Nash (Leich), Cumulative Digest of United States Practice in International Law, 1981–1988, Department of State Publication 10120, Washington, D.C., 1993–1995, p. 3441.
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
In situations where, owing to the nature of hostilities an armed combatant cannot distinguish himself, he keeps his status as a combatant if he carries his arms openly:
a) during every military engagement;
b) as long as he is visible to the enemy while he is engaged in a military deployment, that is in any movement towards a place from which or where a combat action is to take place. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 49.
Palestine Liberation Organization (PLO)
At the CDDH, the PLO stated that the phrase “during such time as he is visible to the adversary” used in paragraph 3 of Article 42 of the draft Additional Protocol I (now Article 44) must be interpreted as meaning “visible to the naked eye” and that the phrase “while he is engaged in a military deployment preceding the launching of an attack” could only mean “immediately before the attack, often coinciding with the actual beginning of the attack”. 
Palestine Liberation Organization, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, pp. 147–148, § 31.