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

Additional Protocol I
Article 44(3) of the 1977 Additional Protocol I provides:
In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 44(3). Article 44 was adopted by 73 votes in favour, one against and 21 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 121.
Article 44(7) of the Protocol provides:
This Article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 44(7). Article 44 was adopted by 73 votes in favour, one against and 21 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 121.
Additional Protocol I
Article 45(3) of the 1977 Additional Protocol I provides:
Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 45(3). Article 45 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 155.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina states: “In order to promote the protection of the civilian population, combatants are obliged to distinguish themselves from the civilian population.” 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
Argentina
Argentina’s Law of War Manual (1989) states:
In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.08(3).
Australia
Australia’s Defence Force Manual (1994) provides that combatants must “have a fixed distinctive sign recognisable at a distance and carry arms openly … Combatants are normally expected to distinguish themselves from the civilian population by wearing a uniform.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, §§ 512–513.
Australia
Australia’s LOAC Manual (2006) states:
5.12 … Where [combatants] are not members of the armed forces, they must also have a fixed distinctive sign recognisable at a distance and carry arms openly.
5.13 … A member of the armed forces does not lose combatant status merely by operating covertly or as a guerrilla. That is, while combatants are normally expected to distinguish themselves from the civilian population by wearing a uniform, the LOAC recognises that they do not have to wear a uniform on operations to retain their status as combatants. This is conditional on combatants who cannot so distinguish themselves because of the nature of hostilities, openly carrying arms during:
• each military engagement, and
• at such times as they are visible to the adversary while engaged in a military deployment preceding the launching of an attack in which they are to participate. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 5.12–5.13.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states that there is a “customary rule according to which all members of the regular armed forces wear a uniform”. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 20.
Benin
According to Benin’s Military Manual (1995), combatants “distinguish themselves by their uniform or by a fixed recognizable sign or at least by carrying arms openly”. 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule I, p. 12.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states:
Combatants must distinguish themselves from civilians:
- by wearing a uniform,
- by being equipped with a distinctive sign,
- by being under a responsible command,
- by carrying arms openly, at least in the following situations: during each military engagement, [and] during such time as they are visible to the adversary while engaged in a military deployment. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 9; see also Part I bis, p. 52.
Cameroon
According to Cameroon’s Instructor’s Manual (1992), combatants “wear a uniform, a distinctive sign and carry arms openly. They distinguish themselves from the civilian population.” 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 17; see also p. 77.
Cameroon
Cameroon’s Instructor’s Manual (2006), under the heading “Combatants”, states: “He must distinguish himself from the civilian population while he takes part in an attack or an operation preparatory to an attack.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 210, § 512.
The manual, under the heading “Combatants”, also states: “He wears a uniform, [shows] a distinctive sign [and carries] a weapon openly. He thus distinguishes himself from the civilian population.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 92, § 352.10l; see also p. 134, § 412.10.
Cameroon
Cameroon’s Disciplinary Regulations (2007) states:
Article 30: Definition
Members of armed forces in organized units, franc-tireurs detached from regular units, commando detachments and isolated saboteurs, as well as the members of voluntary militias, self-defence groups and organized resistance formations are lawful combatants.
It is sufficient that those units, organizations or formations have a designated commander, that their members wear a distinctive sign, notably on their clothing, that they carry their arms openly and that they respect the laws and customs of war.
These combatants, if they are captured, must be considered prisoners of war. 
Cameroon, Règlement de discipline générale dans les forces de défense, Décret N° 2007/199, Président de la République, 7 July 2007, Article 30.
Canada
Canada’s LOAC Manual (1999) states: “To ensure the protection of the civilian population, combatants are required to distinguish themselves from that population when engaging in an attack or preparing to mount an attack.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 3-2, § 15.
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status”: “To ensure the protection of the civilian population, combatants are required to distinguish themselves from that population when engaging in an attack or preparing to mount an attack.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 308(1).
Colombia
Colombia’s Instructors’ Manual (1999) states:
Combatants must distinguish themselves from the civilian population when they participate in combat action or in an operation preparatory thereto. Members of regular Armed Forces normally wear their uniform. Members of other militias, such as rebels and guerrillas, use a distinctive sign and normally carry their arms openly. 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 16.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):
Chapter 3. Identification
I.2. Combatants
Combatants must distinguish themselves from the civilian population when they participate in any military operation or when they prepare for such an operation. Normally, the members of the regular armed forces distinguish themselves by wearing a military uniform; camouflage attire for combat is also considered as a uniform. Combatants who are not members of uniformed armed forces must wear a fixed distinctive sign recognizable from a distance and carry their arms openly.
I.4. Special forces
Numerous armies have special forces. Generally, they are very specialized units, employed far behind the lines of the enemy for incursions, reconnaissance operations or sabotage missions. They can also be used for tasks concerning internal security, such as fighting hostage-taking or terrorism. These units are part of the armed forces in the same way as those described before. During operations, they must be recognizable as combatants, by their uniforms, their insignia. Special forces who operate in civilian attire or dressed in the uniform of the enemy can be punished. Their members nevertheless have the right to a fair trial and must be treated in a manner equivalent to prisoners of war for the whole time of the judicial proceedings.
Chapter 4. Behaviour in action
III.4. Evacuation
In case of doubt regarding the status of a captive, he must be treated like a prisoner of war. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 27, 28–29, 39 and 46.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
Chapter 2. Combatants and objectives
I.2.2. Armed forces
Every member of the armed forces, acting separately from his unit, is a combatant, even if he employs methods of attack by surprise or of violent assault, to the extent that he wears an appropriate uniform during these operations. …
Chapter 4. Methods and means of warfare
I.1.5. Sabotage
Sabotage is allowed under IHL, to the extent that the object of sabotage is a legitimate objective. Saboteurs are persons undertaking activities behind the lines of an adverse Party to commit acts of destruction.
Saboteurs in uniform are combatants and are entitled to POW [prisoner-of-war] status if they are captured.
Civilian saboteurs or saboteurs not wearing uniform do not receive that protection and risk being treated as spies. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 17, 18, 45 and 47.
Croatia
Croatia’s LOAC Compendium (1991) states that combatants distinguish themselves from civilians by wearing a uniform, having a distinctive sign, being under a responsible command, being subject to the law of war and by “carrying arms openly at least: during every military engagement [and] as long as visible to the enemy while engaged in a military deployment”. 
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 6.
Croatia
Croatia’s Commanders’ Manual (1992) states that combatants, members of the armed forces, “distinguish themselves by their uniform or by a recognizable distinctive sign or at least by carrying their arms openly”. 
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 2.
Dominican Republic
The Dominican Republic’s Military Manual (1980) states:
Uniformed, armed soldiers are easily recognizable. However, guerrillas often mix with the civilians, perform undercover operations, and dress in civilian clothes. Alertness and caution must guide you in deciding who is a combatant. 
Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, p. 3.
France
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, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 1.2; Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 2; Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 39.
Germany
Germany’s Military Manual (1992) provides:
Combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. In accordance with the generally agreed practice of states, members of regular armed forces shall wear their uniform. Combatants who are not members of uniformed armed forces nevertheless wear a permanent distinctive sign visible from a distance and carry their arms openly. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten KonfliktenHandbuch, August 1992, § 308.
Germany
Germany’s Soldiers’ Manual (2006) states:
Combatants are all persons who may directly participate in combat operations, e.g. the members of the armed forces as well as militias and volunteer corps forming part of the armed forces.
Only combatants are entitled to take part in combat operations and cannot be punished for doing so. In contrast, other persons, e.g. mercenaries, can be punished.
If combatants fall into the hands of the enemy, they become prisoners of war.
They may not be held responsible for their participation in permitted acts of war. Violations of international law, however, may be punished according to the law of the detaining power. 
Germany, Druckschrift Einsatz Nr. 03, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, Erarbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, pp. 2, 3 and 7.
Greece
The Hellenic Territorial Army’s Internal Service Code (1984), as amended, provides:
Members of the armed forces should:
(a) Consider as “lawful combatants” those who belong to the armed forces of the enemy or to the national guard (the organized resistance included), provided that the personnel of the above is organized in units, is under the command of a certain leader, has a distinctive sign, carries arms openly and respects the laws and customs of war. Persons who do not fulfill the above conditions should not be considered as “lawful combatants” and in case they are captured, they are not protected by the laws regulating the PoWs [prisoners of war]. 
Greece, Hellenic Territorial Army Regulation of Internal Service Code, Presidential Decree 130/1984 (Military Regulation 20-1), as amended, Article 14(a).
Guinea
Guinea’s Disciplinary Regulations (2012) states:
In accordance with the international agreements signed by the government of Guinea, military personnel in combat are required:
- to consider as “combatants” members of the armed forces or volunteer militias, including organized resistance movements, provided that such formations have a designated commander, that their members display a distinctive sign, carry arms openly and comply with the laws and customs of war[.] 
Guinea, Règlement de Service dans les Forces Armées, Volume 1: Règlement de Discipline Générale (Service Regulations in the Armed Forces, Volume 1: General Discipline Regulations), 2012 edition, Ministère de la Défense Nationale, approved by Presidential Decree No. D 293/PRG/SGG/2012, 6 December 2012, Article 12(a).
Hungary
According to Hungary’s Military Manual (1992), combatants distinguish themselves from civilians by wearing a uniform, having a distinctive sign, being under a responsible command, being subject to the law of war and by “carrying arms openly at least: during every military engagement [and] as long as visible to the enemy while engaged in a military deployment”. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 17.
Israel
Israel’s Manual on the Laws of War (1998) states:
It is prohibited to use civilians for the purpose of masking military movements or hiding among them. From this provision stems the soldiers’ obligation to wear a uniform or identifying symbol to clearly distinguish them from civilians. 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 38.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
Civilians must not be used to screen the military movements and for the purpose of concealment amongst them. This is also the reason why soldiers are under an obligation to wear uniform or identification insignia so as to make it possible to distinguish clearly between them and civilians. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 27.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s IHL Manual (1991) states:
In order to obtain the best possible protection of the civilian population, lawful combatants are obliged to distinguish themselves from the civilian population when they participate in an attack or in a military operation preparatory to an attack. 
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 5.
Italy
Italy’s LOAC Elementary Rules Manual (1991) states that combatants, members of the armed forces, “distinguish themselves by their uniform or by a recognizable distinctive sign or at least by carrying their arms openly”. 
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 2.
Kenya
Kenya’s LOAC Manual (1997) states:
While engaged in combat action or in a military operation preparatory to it, combatants must distinguish themselves from the civilian population. It is customary for members of organized armed forces to wear uniform. Members of any other militias, volunteer corps or organized resistance movements wear a fixed recognizable distinctive sign or at least [carry] their arms openly. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 8.
Madagascar
Madagascar’s Military Manual (1994) states that combatants “distinguish themselves by their uniform or by a fixed recognizable sign or, at least, by carrying arms openly”. 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 2-O, § 2.
The manual further states:
Combatants must distinguish themselves from the civilian population while engaged in a combat action or in a preparatory military operation. Members of regular armed forces or persons who are assimilated thereto usually distinguish themselves by their uniform. 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 2-SO, § A.
Netherlands
The Military Manual (1993) of the Netherlands states:
[Combatants] have to distinguish themselves from the civilian population. This is a consequence of the principle that the parties to the conflict have to distinguish at all times between civilians and combatants. Combatants distinguish themselves in the first place by wearing a uniform. In addition, they have to carry their arms openly. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. III-4; see also Handboek Militair, Ministerie van Defensie, 1995, p. 7-39.
Netherlands
The Military Manual (2005) of the Netherlands states:
Combatants have the right to play a direct part in hostilities. They should distinguish themselves from the civilian population. This stems from the principle that the belligerents must at all times distinguish between civilians and combatants. The latter are distinguished by wearing a uniform. Combatants must also carry their weapons openly. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0306.
New Zealand
New Zealand’s Military Manual (1992) provides:
With a view to ensuring protection of the civilian population, combatants are required to distinguish themselves from that population when engaged in an attack or preparing to mount an attack. Under the [Hague Regulations] this distinction depended upon a recognisable emblem and the carrying of arms openly. In the case of a State’s regular forces, the uniform worn by the forces strengthens the distinction.  
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 805(3).
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
Combatants have the right to take a direct part in combat operations and, if captured by the enemy, the right to be granted the prisoner of war status. Combatants are obliged to comply with the rules of international humanitarian law in their activities and to distinguish themselves from the civilian population at least by carrying their arms openly during each military engagement or while being visible to the enemy before the engagement. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 1.
The Regulations further states:
In case of doubt whether a person taking part in hostilities and falling into the hands of the enemy is a prisoner of war, this person is considered prisoner of war until his status is clarified by a court of justice. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 1.
South Africa
South Africa’s LOAC Manual (1996) states:
It is clearly important that combatants, while engaged in combat action or in a military operation preparatory thereto, must distinguish themselves from the civilian population. Members of regular and assimilated armed forces normally distinguish themselves by their uniform. Members of other armed forces wear a fixed, recognisable and distinctive sign and carry their arms openly. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 26. This manual is also included in Chapter 4 of the Draft Civic Education Manual of 1997.
South Africa
South Africa’s Revised Civic Education Manual (2004) states:
Distinction Between Civilians and Combatants. In the light of the above, it is clearly important that combatants, while engaged in combat action or in a military operation preparatory thereto, must distinguish themselves from the civilian population. Members of the regular and assimilated armed forces normally distinguish themselves by their uniform. Members of other armed forces wear a fixed, recognisable and distinctive sign and carry their arms openly. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 49.
[emphasis in original]
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
1.5 Application of LOAC [law of armed conflict] during armed conflict []to the position of participants and non-participants
Article 43 of 1977] Additional Protocol I
- This article also determines that combatants are obliged to distinguish themselves from civilians while they are engaged in:
- An attack, or
- A military operation preparatory to an attack. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, pp. 36–37.
Spain
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, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 8.2.d.(2).
Sweden
Sweden’s IHL Manual (1991) states:
The basic rule for the conduct of combatants is that they are obliged to distinguish themselves from the civilian population when taking part in an attack or in a military operation in preparation for an attack. For combatants belonging to regular forces, this is no problem, since they are recognizable by their uniforms and normally also by the carrying of weapons. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.4, p. 36.
Switzerland
Switzerland’s Basic Military Manual (1987) states:
In order to increase the protection of the civilian population against the effects of hostilities, combatants must distinguish themselves from the civilian population by wearing a uniform, before and during an attack. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 26(1).
The manual further states:
All members of the regular armed forces wear a uniform … The uniform allows for a distinction to be made between friendly and enemy armed forces, on the one hand, and between armed forces and civilians, on the other hand. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Articles 57 and 58.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
12.1 The principle of distinction
159 Hostilities must be directed exclusively against combatants and military objectives. Respect for this rule is only possible if combatants and military objectives can be distinguished from protected persons and objects. Such means include wearing a uniform or at least openly bearing weapons while engaged in an attack. 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 158–159. In the second sentence of § 159, the German language version notes: “Respect for this rule is only possible if combatants and military objectives can be distinguished or, respectively, are locally separated unterscheidbar bzw. örtlich getrennt from protected persons and objects.”
Togo
Togo’s Military Manual (1996) states: “Combatants must distinguish themselves from the civilian population by wearing their uniform – or a fixed distinctive sign – and by carrying their arms openly.” 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule I, p. 13.
Ukraine
Ukraine’s IHL Manual (2004) states:
Combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack (or in a military operation preparatory to an attack), at least by carrying their arms openly.
If a combatant falls into the power of an adverse party, he shall be entitled to the status of a prisoner of war. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.22.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states: “All combatants are required to distinguish themselves from the civilian population, usually by wearing uniform.” 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 3, p. 9, § 2.
The Pamphlet also states: “It is customary for members of organised armed forces to wear uniform.” 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 3, p. 8, § 1.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
4.4. “In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.”
4.4.3. … In order that the civilian population should be adequately protected, the expression “military operation preparatory to an attack” must be given a wide meaning. Members of the armed forces who do not wear uniform, combat gear or an adequate distinctive sign and whose sole arm is a concealed weapon, or who hide their arms on the approach of the enemy, will be considered to have lost their combatant status. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 4.4 and 4.4.3.
The manual further explains that a member of armed forces failing to comply with the rule of distinction “forfeits his right to be treated as a prisoner of war unless, in spite of the circumstances, he still falls within one of the categories entitled to prisoner of war status under Geneva Convention III”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 4.6.
United States of America
The US Air Force Pamphlet (1976) states that combatants are only entitled to prisoner-of-war status if, inter alia, they have a fixed distinctive sign and carry arms openly. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 3-2(b)(3); see also Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 61(a)(2).
The Pamphlet explains that the requirement of having a fixed distinctive sign
may be satisfied by wearing a uniform [and] insures that combatants are clearly distinguishable from civilians to enhance protection of civilians. Less than a complete uniform will suffice provided it serves to distinguish clearly combatants from civilians. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 3-2(b)(4)(b); see also § 7-2 and Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 64(b).
With respect to the requirement to carry arms openly, the Pamphlet states: “Irregular forces do not satisfy this requirement by carrying arms concealed about the person or if the individuals hide their weapons on the approach of the enemy.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 3-2(b)(4)(c); see also Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 64(c).
United States of America
The US Naval Handbook (1995) states: “Combatants … carry their arms openly, and otherwise distinguish themselves clearly from the civilian population.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 5.3.
United States of America
The US Naval Handbook (2007) states: “Commanders … must distinguish their forces from the civilian population. This is why combatants wear uniforms or other distinctive signs.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 5.3.2.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
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]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
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]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1977 Additional Protocol I, including violations of Articles 44(3) and 45(3), is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).
Israel
In its judgment in the Kassem case in 1969, an Israeli Military Court held that the defendants sufficiently fulfilled the requirement to distinguish themselves from the civilian population by wearing mottled caps and green clothes, which were not customary attire for the inhabitants of the area in which the accused were captured. 
Israel, Military Court at Ramallah, Kassem case, Judgment, 13 April 1969.
Israel
In the Swarka case before an Israeli Military Court in 1974, the defendants had infiltrated Israeli territory from Egypt and had launched rockets at a civilian settlement. Upon their capture, they argued that they were entitled to prisoner-of-war status according to Article 4(A)(1) of the 1949 Geneva Convention III because they were regular soldiers in the Egyptian army operating under orders from their commander. The Prosecutor contended that they could not benefit from this status since they wore civilian clothes while carrying out their mission. The Court observed that, indeed, neither the Hague Regulations nor the 1949 Geneva Convention III provided that a member of the regular armed forces had to wear a uniform at the time of capture in order to be considered a prisoner of war. It considered, however, that it would be quite illogical to regard the duty to wear a uniform (in the sense of a distinctive sign) as imposed only on the quasi-military units referred to in Article 4(A)(2) of the 1949 Geneva Convention III and not on soldiers of regular armed forces. The Court concluded that the defendants were to be prosecuted as saboteurs. 
Israel, Military Court, Swarka case, Judgment, 1974.
Israel
In its judgment in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
24. … [T]he terrorist organizations from the area, and their members, do not fulfill the conditions for combatants (see GROSS, at p. 75). It will suffice to say that they have no fixed emblem recognizable at a distance, and they do not conduct their operations in accordance with the laws and customs of war. In one case, I wrote:
“The Lebanese detainees are not to be seen as prisoners of war. It is sufficient, in order to reach that conclusion, that they do not fulfill the provisions of article 4a(2)(d) of The Third Geneva Convention, which provides that one of the conditions which must be fulfilled in order to fit the definition of ‘a prisoner of war’ is ‘that of conducting their operations in accordance with the laws and customs of war.’ The organizations to which the Lebanese detainees belonged are terrorist organizations acting contrary to the laws and customs of war. Thus, for example, these organizations intentionally harm civilians, and shoot from within the civilian population, which serves them as a shield. Each of these is an act contrary to international law. Indeed, Israel’s constant stance throughout the years has been to view the various organizations, like the Hizbollah, as organizations to which The Third Geneva Convention does not apply. We found no cause to intervene in that stance” (HCJ 2967/00 Arad v. The Knesset, 54 PD(2) 188, 191; see also Severe CrimC 1158/02 (TA) The State of Israel v. Barguti (unpublished, paragraph 35 of the verdict); Tav Mem/69/4 The Military Prosecutor v. Kassem, 1 SELECTED JUDGMENTS OF THE MILITARY TRIBUNALS IN THE ADMINISTERED TERRITORIES 403 [PISKEI DIN NIVCHARIM SHEL BATEI HADIN HATSVAYIM BASHTACHIM HAMUCHZAKIM]).
25. The terrorists and their organizations, with which the State of Israel has an armed conflict of international character, do not fall into the category of combatants. They do not belong to the armed forces, and they do not belong to units to which international law grants status similar to that of combatants. Indeed, the terrorists and the organizations which send them to carry out attacks are unlawful combatants. They do not enjoy the status of prisoners of war. They can be tried for their participation in hostilities, judged, and punished. The Chief Justice of the Supreme Court of the United States, Stone C.J. discussed that, writing:
“By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful population of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatant[s] are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful” (Ex Parte Quirin 317 U.S. 1, 30 (1942); see also Hamdi v. Rumsfeld, 542 U.S. 507 (2004)).
The Imprisonment of Unlawful Combatants Law, 5762-2002 authorizes the chief of the general staff of the IDF [Israel Defense Forces] to issue an order for the administrative detention of an “unlawful combatant”. That term is defined in the statute as “a person who took part in hostilities against the State of Israel, whether directly or indirectly, or is part of a force which commits hostilities against the state of Israel, who does not fulfill the conditions granting prisoner of war status in international humanitarian law, as determined in article 4 of III Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949.” Needless to say, unlawful combatants are not beyond the law. They are not “outlaws”. God created them as well in his image; their human dignity as well is to be honored; they as well enjoy and are entitled to protection, even if most minimal, by customary international law (Neuman, Humanitarian Law and Counterterrorist Force, 14 EUROPEAN JOURNAL OF INTERNATIONAL LAW 283 (2003); Georg Nolte, Preventative Use of Force and Preventative Killings: Moves into a Different Legal Order, 5 THEORETICAL INQUIRIES IN LAW 111, 119 (2004), hereinafter “Nolte”). That is certainly the case when they are in detention or brought to justice (see §75 of The First Protocol, which reflects customary international law, as well as Knut Dormann, The Legal Situation of “Unlawful/Unprivileged” Combatants, 849 INTERNATIONAL REVIEW OF THE RED CROSS 45, 70 (2003), hereinafter “Dormann”). Does it follow that in Israel’s conduct of combat against the terrorist organizations, Israel is not entitled to harm them, and Israel is not entitled to kill them even if they are planning, launching, or committing terrorist attacks? If they were seen as (legal) combatants, the answer would of course be that Israel is entitled to harm them. Just as it is permissible to harm a soldier of an enemy country, so can terrorists be harmed. Accordingly, they would also enjoy the status of prisoners of war, and the rest of the protections granted to legal combatants. However, as we have seen, the terrorists acting against Israel are not combatants according to the definition of that term in international law; they are not entitled to the status of prisoners of war; they can be put on trial for their membership in terrorist organizations and for their operations against the army. 
Israel, High Court of Justice, Public Committee against Torture in Israel case, Judgment, 14 December 2006, §§ 24–25.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
I do not think that the drafters of the [1977 Additional] Protocol I intended to get rid of the obligation to comply with one of its core provisions, namely that civilians must be in a position to identify combatants and distinguish them, through article 44(5). If they had, what would have been the point of prescribing that combatants must distinguish themselves by wearing uniforms, or alternatively by carrying their weapons openly. The Protocol and [the 1949 Geneva] Convention III have as their very goal the protection of potential innocent victims. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 76.
On the question of whether the 1977 Additional Protocol I reflected customary international law, the Court held:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Argentina
Upon accession to the 1977 Additional Protocol I, Argentina declared that Articles 44(2), 44(3) and 44(4) of the 1977 Additional Protocol I could not be interpreted:
a) as conferring on persons who violate the rules of international law applicable in armed conflicts any kind of immunity exempting them from the system of sanctions which apply to each case;
b) as specifically favouring anyone who violates the rules the aim of which is the distinction between combatants and the civilian population;
c) as weakening respect for the fundamental principle of the international law of war which requires that a distinction be made between combatants and the civilian population, with the prime purpose of protecting the latter. 
Argentina, Interpretative declarations made upon accession to the 1977 Additional Protocols I and II, 26 November 1986, § 1.
Botswana
On the basis of an interview with a retired army general, the Report on the Practice of Botswana states: “The position of Botswana is that combatants will usually have well identifiable uniforms.” 
Report on the Practice of Botswana, 1998, Interview with a retired army general, Chapter 1.1.
Djibouti
In 2010, in the History and Geography Textbook for 8th Grade, Djibouti’s Ministry of National Education and Higher Education, under the heading “Basic rules of IHL” and in a section on “Weapons and tactics”, stated: “It is prohibited for a combatant to pretend he/she is a civilian.ˮ 
Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 194.
In an exercise asking students to identify IHL violations, the ministry provided the following example: “[A soldier states:] ‘Quite often, soldiers exchange their uniforms for civilian clothes. How can we then know who is really a civilian?’” 
Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 201.
Germany, Federal Republic of
At the CDDH, the Federal Republic of Germany stated:
The basic rule set forth in Article 42 [now Article 44], paragraph 3, first sentence, that combatants are obliged to distinguish themselves from the civilian population means that these combatants have to distinguish themselves in a clearly recognizable manner. 
Germany, Federal Republic of, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 136.
Indonesia
On the basis of interviews with senior army officers, the Report on the Practice of Indonesia states:
There is no national regulation for the implementation of the distinction principle in non-international armed conflict. However, in certain insurgencies during the 1950’s and the 1960’s, Indonesian armed forces used uniforms as one of the criteria to distinguish between rebels and civilians … Though the uniforms used by some rebels did not resemble the military uniform, for example, the rebels used no insignia or other emblems, their differing colour was the main criterion by which the military was able to distinguish them from civilians. 
Report on the Practice of Indonesia, 1997, Interviews with senior army officers, Chapter 1.1, note 2.
Italy
At the CDDH, Italy stated that Article 42(3) of the draft Additional Protocol I (now Article 44(3)) “embodied and reaffirmed without amendment or derogation a basic rule of existing international law, the need for combatants to distinguish themselves from the civilian population”. It added that “it was essential that the distinction principle should remain the basis of international humanitarian law, because on respect for that principle depended the protection of the civilian population”. 
Italy, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, pp. 122–123, §§ 21 and 24.
Netherlands
At the CDDH, the Netherlands stated that it was convinced that “the fundamental rule of distinction between combatants and the civilian population had not been weakened by Article 42 [now Article 44]”. It stressed, however, that “the article should not be construed as entitling combatants to waive that distinction”. 
Netherlands, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 142, § 5.
Rwanda
In 2010, in its Comments on the Draft UN Mapping Report on the DRC (Democratic Republic of the Congo), Rwanda stated:
[Regarding the] Rwandan involvement in the conflict that engulfed Zaire in 1996 … , as in similar situations where terrorist groups and insurgents mix with civilians and refugees and do not wear uniforms or otherwise follow the law of armed conflict, the demarcation between illegal combatants and civilians was not always clear. 
Rwanda, Ministry of Foreign Affairs and Cooperation, Official Government of Rwanda Comments on the Draft UN Mapping Report on the DRC, 30 November 2010, § 14.
Switzerland
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
International humanitarian law establishes criteria for the granting of combatant status. It is primarily for members of the armed forces of a party to the conflict but also for members of other militias. For this, combatants must carry their arms openly, be recognizable (generally by a uniform), be under a responsible command and act in conformity with international humanitarian law in their operations. 
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.1, pp. 6–7.
[footnotes in original omitted; emphasis in original]
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Lords, the UK Parliamentary Under-Secretary of State for Defence stated:
My Lords, I repeat what I said a few minutes ago that captured Iraqis will be given prisoner of war status until they are proved otherwise and they will be treated according to our obligations under the Geneva Conventions. Captured Iraqi forces are likely to be prisoners of war unless they conceal weapons in the conduct of operations, in which case, as the noble Lord will know, they are unlawful combatants. Although unlawful combatants do not have prisoner of war status, we would have a duty, under international humanitarian law, which we would fulfil, to treat prisoners in a reasonable and humane manner. I hope that that answers the noble Lord’s question. 
United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State for Defence, Hansard, 3 April 2003, Vol. 646, Debates, col. 1472.
United States of America
At the CDDH, the United States voted in favour of Article 42 of the draft Additional Protocol I (now Article 44) and stated:
The basic rule contained in the first sentence of paragraph 3 meant that throughout their military operations combatants must distinguish themselves in a clearly recognized manner. Representatives who had stated or implied that the only rule on the subject was that set forth in the second sentence of paragraph 3 were wrong. 
United States, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 150, § 44.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support … the principle that combatant personnel distinguish themselves from the civilian populations while engaged in military operations.” 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 425.
United States of America
In 1987, the Legal Adviser of the US Department of State stated:
A fundamental premise of the Geneva Conventions has been that to earn the right to protection as military fighters, soldiers must distinguish themselves from civilians by wearing uniforms and carrying their weapons openly … Fighters who attempt to take advantage of civilians by hiding among them in civilian dress, with their weapons out of view, lose their claim to be treated as soldiers. The law thus attempts to encourage fighters to avoid placing civilians in unconscionable jeopardy. 
United States, Remarks of Judge Abraham D. Sofaer, Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 466.
United States of America
In January 2002, in response to a request from the Counsel to the President and the General Counsel of the Department of Defense, the US Office of Legal Counsel, Department of Justice, provided its views regarding the application of treaties and laws to al-Qaeda and Taliban detainees. On the law regarding the prisoner-of-war (POW) status of these detainees, the memorandum stated:
Application of WCA [War Crimes Act] and Associated Treaties to al Qaeda.
We conclude that Geneva [Convention] III does not apply to the al Qaeda terrorist organization. Therefore, neither the detention nor trial of al Qaeda fighters is subject to Geneva III (or the WCA). Three reasons, examined in detail below, support this conclusion. First, al Qaeda is not a State and thus cannot receive the benefits of a State party to the Conventions. Second, al Qaeda members fail to satisfy the eligibility requirements for treatment as POWs under Geneva Convention III. Third, the nature of the conflict precludes application of common article 3 of the Geneva Conventions.
Geneva III does not apply to a non-State actor such as the al Qaeda terrorist organization. Al Qaeda is not a State. It is a non-governmental terrorist organization composed of members from many nations, with ongoing operations in dozens of nations. Non- governmental organizations cannot be parties to any of the international agreements here governing the laws of war. Common article 2, which triggers the Geneva Convention provisions regulating detention conditions and procedures for trial of POWs, is limited to cases of declared war or armed conflict “between two or more of the High Contracting Parties.” Al Qaeda is not a High Contracting Party. As a result, the U.S. military’s treatment of al Qaeda members is not governed by the bulk of the Geneva Conventions, specifically those provisions concerning POWs. Conduct towards captured members of al Qaeda, therefore, also cannot constitute a violation of 18 U.S.C. § 2441(c)(1).
Second, al Qaeda members fail to satisfy the eligibility requirements for treatment as POWs under Geneva Convention III. It might be argued that, even though it is not a State party to the Geneva Conventions, al Qaeda could be covered by some protections in Geneva Convention III. Article 4(A)(2) of Geneva III defines prisoners of war as including not only captured members of the armed forces of a High Contracting Party, but also irregular forces such as “[members of other militias and members of other volunteer corps, including those of organized resistance movements.” Article 4(A)(3) also includes as POWs “[members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” Id. art. 4(A)(3). It might be claimed that the broad terms of these provisions could be stretched to cover al Qaeda.
This view would be mistaken. Article 4 does not expand the application of the Convention beyond the circumstances expressly addressed in common articles 2 and 3. Unless there is a conflict subject to article 2, article 4 simply does not apply. If the conflict is one to which article 3 applies, then article 4 has no role because article 3 does not trigger application of the rest of the provisions of Geneva III. Rather, article 3 provides an alternative set of standards that requires only minimal humanitarian protections. As we have explained, the conflict with al Qaeda does not fall within article 2. As a result, article 4 has no application. In other words, article 4 cannot be read as an alternative, and a far more expansive, statement of the application of the Convention. It merely specifies, where there is a conflict covered by article 2 of the Convention, who must be accorded POW status.
Even if article 4, however, were considered somehow to be jurisdictional as well as substantive, captured members of al Qaeda still would not receive the protections accorded to POWs. First, al Qaeda is not the “armed forces,” volunteer forces, or militia of a state party that is a party to the conflict, as defined in article 4(A)(1). Second, they cannot qualify as volunteer force, militia, or organized resistance force under article 4(A)(2). That article requires that militia or volunteers fulfill four conditions: command by responsible individuals, wearing insignia, carrying arms openly, and obeying the laws of war. Al Qaeda members have clearly demonstrated that they will not follow these basic requirements of lawful warfare. They have attacked purely civilian targets of no military value; they refused to wear uniform or insignia or carry arms openly, but instead hijacked civilian airliners, took hostages, and killed them; and they themselves do not obey the laws of war concerning the protection of the lives of civilians or the means of legitimate combat. As these requirements also apply to any regular armed force under other treaties governing the laws of armed conflict, al Qaeda members would not qualify under article 4(A)(3) either, which provides POW status to captured individuals who are members of a “regular armed force” that professes allegiance to a government or authority not recognized by the detaining power. Members of al Qaeda, therefore, would not qualify for POW treatment under article 4, even if it were somehow thought that they were participating in a conflict covered by common article 2 or if article 4 itself were thought to be jurisdictional in nature.
Third, the nature of the conflict precludes application of common article 3 of the Geneva Conventions. As discussed in Part I, the text of common article 3, when read in harmony with common article 2, shows that the Geneva Conventions were intended to cover either: a) traditional wars between state parties to the Conventions (article 2), b) or non-international civil wars (article 3). Our conflict with al Qaeda does not fit into either category. It is not an international war between nation-States because al Qaeda is not a State. Nor is this conflict a civil war under article 3, because it is a conflict of “an international character.” Al Qaeda operates in many countries and carried out a massive international attack on the United States on September 11, 2001. Therefore, the military’s treatment of al Qaeda members is not limited either by common article 3 or 18 U.S.C. § 2441(c)(3). 
United States, Department of Justice, Office of Legal Counsel, Memorandum by Jay S. Bybee, Assistant Attorney General, for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of Defense, Application of Treaties and Laws to al Qaeda and Taliban Detainees, 22 January 2002, pp. 9–10.
Status of Taliban Prisoners Under Article 4
Even if the President declines to suspend our obligations under Geneva III toward Afghanistan, it is possible that Taliban detainees still might not receive the legal status of POWs. Geneva III provides that once a conflict falls within common article 2, combatants must fall within one of several categories in order to receive POW status. Article 4(A)(l)-(3) sets out the three categories relevant here: i) members of the armed forces of a party to the conflict, along with accompanying militia and volunteer forces; ii) members of militia or volunteer corps who are commanded by an individual responsible to his subordinates, who have a distinctive sign recognizable from a distance, who carry arms openly, and who obey the laws of war; and iii) members of regular armed forces who profess allegiance to a government or authority that is not recognized by the detaining power. Should “any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy,” article 5 of Geneva III requires that these individuals “enjoy the protections of the Convention until a tribunal has determined their status. As we understand it, as a matter of practice prisoners are presumed to have article 4 POW status until a tribunal determines otherwise.
Although these provisions seem to contemplate a case-by-case determination of an individual detainee’s status, the President could determine categorically that all Taliban prisoners fall outside article 4. Under Article II of the Constitution, the President possesses the power to interpret treaties on behalf of the Nation. He could interpret Geneva III, in light of the known facts concerning the operation of Taliban forces during the Afghanistan conflict, to find that all of the Taliban forces do not fall within the legal definition of prisoners of war as defined by article 4. A presidential determination of this nature would eliminate any legal “doubt” as to the prisoners’ status, as a matter of domestic law, and would therefore obviate the need for article 5 tribunals.
We do not have, however, the facts available to advise your Department or the White House whether the President would have the grounds to apply the law to the facts in this categorical manner. Some of the facts which would be important to such a decision include: whether Taliban units followed a recognizable, hierarchical command-and-control structure, whether they wore distinctive uniforms, whether they operated in the open with their weapons visible, the tactics and strategies with which they conducted hostilities, and whether they obeyed the laws of war. If your Department were to conclude that the Afghanistan conflict demonstrated that the conduct of the Taliban militia had always violated these requirements, you would be justified in advising the President to determine that all Taliban prisoners are not POWs under article 4.
It is important to recognize that if the President were to pursue this line of reasoning, the executive branch would have to find that the Afghanistan conflict qualifies as an international war between two state parties to the Conventions. Article 4 is not a jurisdictional provision, but is instead only applied once a conflict has fallen within the definition of an international conflict covered by common article 2 of the Conventions. At this point in time, we cannot predict what consequences this acceptance of jurisdiction would have for future stages in the war on terrorism.
Nonetheless, if the President were to make such a determination, the WCA still would not impose any liability. As will be recalled, the WCA criminalizes either grave breaches of the Geneva Conventions or violations of common article 3. If members of the Taliban militia do not qualify as POWs under article 4, even though the conflict falls within common article 2’s jurisdictional provisions, then their treatment cannot constitute a grave breach under Geneva III. Article 130 of Geneva III states that a grave breach occurs only when certain acts are committed against “persons … protected by the Convention.” If the President were to find that Taliban prisoners did not constitute POWs under article 4, they would no longer be persons protected by the Convention. Thus, their treatment could not give rise to a grave breach under article 130, nor constitute a violation of the WCA.
Further, if the President were to find that all Taliban prisoners did not enjoy the status of POWs under article 4, they would not be legally entitled to the standards of treatment in common article 3. As the Afghanistan war is international in nature, involving as it does the use of force by state parties – the United States and Great Britain – which are outside of Afghanistan, common article 3 by its very terms would not apply. Common article 3, as we have explained earlier, does not serve as a catch-all provision that applies to all armed conflicts, but rather as a specific complement to common article 2. Further, in reaching the article 4 analysis, the United States would be accepting that Geneva Convention jurisdiction existed over the conflict pursuant to common article 2. Common article 3 by its text would not apply, and therefore any violation of its terms would not constitute a violation of the WCA. 
United States, Department of Justice, Office of Legal Counsel, Memorandum by Jay S. Bybee, Assistant Attorney General, for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of Defense, Application of Treaties and Laws to al Qaeda and Taliban Detainees, 22 January 2002, pp. 30–32.
Conclusion
For the foregoing reasons, we conclude that neither the federal War Crimes Act nor the Geneva Conventions would apply to the detention conditions of al Qaeda prisoners. We also conclude that the President has the plenary constitutional power to suspend our treaty obligations toward Afghanistan during the period of the conflict. He may exercise that discretion on the basis that Afghanistan was a failed state. Even if he chose not to, he could interpret Geneva III to find that members of the Taliban militia failed to qualify as POWs under the terms of the treaty. We also conclude that customary international law has no binding legal effect on either the President or the military because it is not federal law, as recognized by the Constitution.
We should make clear that in reaching a decision to suspend our treaty obligations or to construe Geneva III to conclude that members of the Taliban militia are not POWs, the President need not make any specific finding. Rather, he need only authorize or approve policies that would be consistent with the understanding that al Qaeda and Taliban prisoners are not POWs under Geneva III. 
United States, Department of Justice, Office of Legal Counsel, Memorandum by Jay S. Bybee, Assistant Attorney General, for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of Defense, Application of Treaties and Laws to al Qaeda and Taliban Detainees, 22 January 2002, p. 37.
United States of America
In May 2004, the US Secretary of Defense provided a media briefing whilst en-route to Baghdad. In responding to a question concerning the applicability of the 1949 Geneva Conventions to members of the Taliban and al-Qaeda with regard to their status as combatants, he responded:
[T]he Geneva Convention applied to parties, states. It did not apply to terrorist organizations like Al-Qaeda. Therefore, Al-Qaeda was not covered specifically by Geneva Convention. It did apply to Afghanistan and Taliban – and I’m going to be careful how I say this – because Taliban was running Afghanistan at the time so it applied. And the President said so. This was a presidential decision with hundreds of lawyers involved in it. They then concluded that the Taliban did not qualify because under Geneva there are certain things that one looks for to determine whether or not they are lawful or unlawful combatants. Had the Taliban worn uniforms, had the Taliban used weapons that were visible, had the Taliban functioned in a chain of command, had the Taliban done three or four other things that are the indicators or the criteria by which Geneva suggests it be judged as to whether someone is or is not a lawful or unlawful combatant. Had they had those characteristics and met those criteria, the President would have announced that the Geneva Convention applied specifically to Taliban. The judgment was that they did not meet those. They were not running around in uniforms. They were not doing those things that lawful combatants do. So the President made a decision that not only Al-Qaeda did not merit under the criteria of Geneva, the specific provisions as lawful combatants, but so too Taliban did not even though Afghanistan did as a country.
Geneva is designed to distinguish between lawful combatants like our men and women in uniform who we want protected under Geneva, because they wear uniforms, they wear – carry weapons that are exposed, they do function in a chain of command, they meet the criteria. And the Geneva Conventions were designed to protect people like that and not to protect people not like that.
So to the extent that unlawful combatants do what they do, that is to say blend into civilian, women and children, put them at risk, put them in danger, attack men and women and children who are civilians and innocents, to the extent they do that they are deemed by Geneva Convention to not be appropriate to fall under the provisions of Geneva. 
United States, Department of Defense, Secretary of Defense, Donald H. Rumsfeld, Media Briefing, Secretary Rumsfeld Media Availability Enroute to Baghdad, 13 May 2004.
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International Criminal Tribunal for the former Yugoslavia
In its judgment in the Galić case in 2003, the ICTY Trial Chamber stated:
In order to promote the protection of civilians, combatants are under the obligation to distinguish themselves at all times from the civilian population; the generally accepted practice is that they do so by wearing uniforms, or at least a distinctive sign, and by carrying their weapons openly. 
ICTY, Galić case, Judgment, 5 December 2003, § 50.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
While engaged in combat action or in a military operation preparatory to it, combatants must distinguish themselves from the civilian population.
Members of regular and assimilated armed forces normally distinguish themselves by their uniform.
Members of other armed forces wear a fixed recognizable distinctive sign and carry their arms openly. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 48.
ICRC
In a communication to the press issued in 2000 in connection with the hostilities in the Near East, the ICRC reminded all those involved that in order “to avoid endangering the civilian population, those bearing weapons and all those who take part in violence must distinguish themselves from civilians”. 
ICRC, Communication to the Press No. 00/42, ICRC Appeal to All Involved in Violence in the Near East, 21 November 2000.
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