Practice Relating to Rule 106. Conditions for Prisoner-of-War Status
Section C. Situations where combatants cannot distinguish themselves
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.
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.
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).
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].
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”.
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”.