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