United States of America
Practice Relating to Rule 106. Conditions for Prisoner-of-War Status
Section C. Situations where combatants cannot distinguish themselves
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.
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.
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.
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.
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.