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

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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:

These people are to be treated as PW [prisoners of war]. 

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:

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. 

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:

This situation is referred to as a levée en masse. 

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:

This situation is referred to as a “levée en masse”. 

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]:

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

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:

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. 

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. 

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. 

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. 

A person captured by the opposing side and belonging to one of the following categories:

In addition [to captured combatants], the following persons captured by the enemy are also prisoners of war:

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. 

…

- Article 2 of the [1907] Hague [Regulations] creates an exception to the conditions mentioned in sub-sub paragraph [1 of Article 1 of the Regulations]. According to this article, persons will be regarded as belligerents even though they do not comply with the conditions, if[:]

- organized forces;

- under a command responsible for the conduct of its subordinates;

- internal disciplinary system;

- compliance with the law of armed conflict. 

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. 

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). 

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). 

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. 

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. 

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. 

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]. 

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]. 

133. The definition of a levée en masse is well settled in international law. Article 2 of the 1907 Hague Regulations provides that

Article 1 of the 1907 Hague Regulations requires such belligerents

…

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. 

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.