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