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

Note: The practice relating to Rules 3 and 4 provides numerous references to the requirements for resistance movements to be considered as combatants, notably by having a distinctive sign and carrying arms openly, as provided for in Article 4(A)(2) of the 1949 Geneva Convention III. These are not, generally, repeated here.
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. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:
(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 c). 
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.
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.
No data.
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. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:
(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c). 
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) states:
A member of the armed forces does not lose combatant status merely by operating covertly or as a guerilla. That is, while combatants are normally expected to distinguish themselves from the civilian population by wearing a uniform, LOAC recognizes 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 by carrying arms during:
a. each military engagement, and
(1) 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, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 513.
Australia
Australia’s LOAC Manual (2006) states in its chapter on “Targeting”:
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, § 5.13.
The manual also states:
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:
• national liberation movements engaged in a conflict seeking self-determination;
• resistance or properly organised guerrilla movements;
These people are to be treated as PW [prisoners of war]. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.21.
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:
Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:
(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
Acts which comply with the requirements of this paragraph shall not be considered as perfidious. 
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, pp. 20–21.
It would be preferable that Belgium only supports this rule on condition that it does not apply to operations on non-occupied Belgian territory. The term “military deployment” should, on the other hand, be interpreted very widely in the sense that it covers every movement towards the place from which an attack is to be launched. To be “visible” includes being able to “be observed” even at night by means of infrared rays and the notion “adversary” should be clarified. 
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. 21.
Benin
According to Benin’s Military Manual (1995), combatants “distinguish themselves … 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.
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. But, in a situation in which for reasons related to the nature of hostilities, a combatant cannot distinguish himself from the civilian population, he retains his status as combatant if he carries his arms openly:
a) during each military engagement;
b) for as long as he is visible to the enemy when he takes part in a military deployment. 
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.
Canada
Canada’s LOAC Manual (1999) states:
There may be situations where, owing to the nature of the hostilities, armed combatants (such as resistance movements) cannot normally distinguish themselves from the civilian population. In such situations, those personnel retain their status as lawful combatants and their entitlement to prisoner of war status upon capture provided that they carry their arms openly:
a. during each military engagement, and
b. during each time as they are visible to the adversary while they are engaged in a military deployment preceding the launching of an attack in which they are to participate. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 3-2, § 16.
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status”:
1. 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.
2. There may be situations where, owing to the nature of the hostilities, armed combatants (such as resistance movements) cannot normally distinguish themselves from the civilian population. In such situations, those personnel retain their status as lawful combatants and their entitlement to prisoner of war status upon capture provided they carry their arms openly:
a. during each military engagement, and
b. during such time as they are visible to the adversary while they are engaged in a military deployment preceding the launching of an attack in which they are to participate. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 308.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
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]:
b. [the Article 4(A)(2) of the 1949 Geneva Convention III list of requirements for resistance movements to be considered as combatants]
g. In certain restricted circumstances, the provision of paragraph 1b can be relaxed so that it is sufficient if a combatant carries his arms openly during each military engagement and during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate. In cases of this nature, it may be necessary to hold a PW [Prisoner-of-War] Status Determination Tribunal. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 109.1.g.
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
The law admits that there are circumstances in which a combatant need not necessarily wear a uniform nor display a fixed distinctive sign in order to be entitled to prisoner-of-war status. This is the case in occupied territories, where, owing to the nature of the conflict, combatants cannot distinguish themselves from the civilian population in that manner. In such a case, they will nevertheless be regarded as combatants if they are under a responsible command and an internal disciplinary system.
They must further carry their arms openly:
- during each military engagement;
- when they deploy on a military operation and are visible to the enemy.
In other words, these persons are, at the time of combat, men or women clearly armed who do not try to dissimulate their military intentions. 
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.
Croatia
Croatia’s LOAC Compendium (1991) states that combatants must carry their arms openly “at least during every military engagement [and] as long as they are 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.
Ecuador
Ecuador’s Naval Manual (1989) provides that guerrilleros and members of resistance movements are considered combatants if they meet certain requirements, including “wearing a uniform or some form of identification recognizable from a distance [and] carrying arms openly”. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 11.8.
France
France’s LOAC Manual (2001) states:
Members of guerrilla movements or armed groups can have combatant status … provided they carry arms openly during each engagement and they are subject to a hierarchical command structure and an internal disciplinary system which ensures, in particular, respect for the law of armed conflict. 
France, 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.
Under the heading “Guerilla”, the manual restates, inter alia, Article 4(A)(2) of the 1949 Geneva Convention III, and provides: “Permitted to fight and to obtain the status of prisoner of war in the case of capture are resistance fighters, militias and volunteer corps who are not part of the regular army but who respond to the definition [therein].” 
France, 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, pp. 70–71.
Under the heading “Resistance”, the manual restates Article 4(A)(2) of the 1949 Geneva Convention III, and further provides:
Inherited from World War II, this term refers to activities carried out against occupation forces and inspired by guerrilla techniques. The “resistance fighters” have combatant status, under the condition that they respect the provisions of Article 4 of the Geneva Convention III of 12 August 1949 relative to the Treatment of Prisoners of War, above. At the moment when they act, and whatever the circumstances, the members of a resistance movement must take all necessary measures to distinguish themselves clearly from the civilian population. 
France, 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, pp. 110–111.
Germany
Germany’s Military Manual (1992) states:
Recognizing that there are situations in occupied territories and in wars of national liberation where, owing to the nature of the hostilities, a combatant (especially a guerillero) cannot so distinguish himself from the civilian population, he shall retain his status as a combatant provided that, in such situations, he carries his arms openly:
(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
The term “military deployment” refers to any movement towards the point from which an attack shall be launched. 
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, § 309
Hungary
According to Hungary’s Military Manual (1992), combatants must carry their arms openly “at least during every military engagement [and] as long as they are 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.
The manual further states: “Inhabitants of occupied territory may organize resistance movements. Members are combatants if they meet the requirements of armed forces.” 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 103.
Israel
Israel’s Manual on the Laws of War (1998) states:
Undoubtedly, the conditions mentioned [in Article 4(A)(2) of the 1949 Geneva Convention III] make it very difficult for non-regular forces for which, in many cases, the fulfilment of the cumulative conditions of openly bearing arms and wearing a recognizable distinctive sign may be suicidal. Still, these are the necessary conditions called for in conducting a regular war between combatant forces, without dragging the population into the conflict.
In an effort to extend the protection accorded to include non-regular combatants, the Additional Protocols from 1977 drastically scaled back the conditions for defining a legal combatant. These protocols established that it is sufficient for an underground fighter to bear his arms openly during a military operation and for the duration that he is visible to the enemy, omitting all the other conditions. More seriously, the Protocols state that even non-compliance with the laws of war does not in itself deprive the non-regular combatant of his right to prisoner-of-war status … Clearly, such provisions deplete the provisions of the Geneva Convention of all substance, since we are losing sight of the primary goals for which such requirements were intended, namely the mutual observance of the laws of war and the distinction between combatants and the civilian population as well as the concealment of combatants among the civilian population.
We find then that, in effect, the Additional Protocols grant prisoner-of-war protection to any terrorist group that is organized and under the direct command of a commander in charge of his subordinates. Obviously, countries that find themselves embroiled in a struggle with terrorist groups have not adopted these provisions, which is one reason why many countries (including Israel and the U.S.) have not ratified the Additional Protocols. Claims made by terrorists before the IDF’s [Israel Defense Forces’] military courts that they are entitled to prisoner-of-war status have been rejected. 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, pp. 50–51.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
Legitimate and illegitimate combatants. Being a member of the combatant forces entitles a combatant to special rights when he exits the theatre of war by surrendering, falling into captivity, being wounded or losing the ability to fight. Such a combatant receives the status of prisoner-of-war (POW) entitling him to medical treatment, protection against physical and mental attack and from prosecution for actions committed in battle. The bodies of the fallen must not be desecrated and they must be given suitable burial. More than once, a fighting army, and certainly the IDF [Israel Defense Forces] among it, has had to deal with terrorists who present themselves as civilians and claim the status of “freedom fighter”. In practice, such irregular fighters attempt to acquire the status of combatants without accepting the obligations and limitations by which regular fighters are bound. For this reason, considerable importance is attributed to distinguishing between these two groups.
One of the most important attributes in the differentiation between a legitimate combatant and an illegitimate one is in the question of prosecution. Operations undertaken in time of war by soldiers, even if they include the killing of soldiers on the other side and causing them serious injury, are not deemed to be criminal offences, and the rules of war prohibit putting such soldiers on trial (for example, the show trials in which the Vietnamese put American prisoners-of-war on trial for “crimes against the Vietnamese people” were illegal). The assumption is that the soldier was sent to war legitimately under the laws of his country, and he had no choice in the matter. This defence of the rules of war is only granted to legitimate fighters. The illegitimate fighter is not entitled to any protection against being prosecuted under the laws of the country that captured him. An illegitimate fighter, even if he performs acts that are permissible for a legitimate fighter, such as attacking a military target, will be put on trial for the actions he committed. A legitimate fighter performing similar actions would not be put on trial but would be held as a prisoner-of-war.
This distinction is designed to prevent civilians from taking part in military actions that they are forbidden to perform and to prevent soldiers or paramilitaries from hiding among the civilian population. This is how it will make it easier for the fighting army to provide the obligatory protection for the civilian population.
The Third Geneva Convention deals with prisoners-of-war and their protection. The Convention defines who is a legitimate fighter and specifies the arrangements for the detention of prisoners-of-war and the way they are to be treated. During the 1970s, Additional Protocols were added to the Geneva Convention, mainly due to pressure from Third World countries. These Protocols substantially expanded the definition of a fighter to guerrillas and terrorists, and Israel (and even the United States) did not sign them and does not recognise them.
- Combatants are part of the organisation of the chain of command, led by a commander. This condition is designed to prevent units operating on their own initiative acquiring the status of prisoners-of-war. The law does not recognise private wars, combatants must be part of a hierarchy, subject to discipline and supervision by senior ranks. In that way, there will be someone to address if there are breaches of the rules of war or exchanges of prisoners.
- Combatants must wear a permanent sign of recognition which can be recognised from afar. The recognition sign must be permanent (a different sign cannot be used every day). The sign does not necessarily have to be standard military uniform, all it needs to be is the same clothing that is distinguishable from civilian clothing. Naturally, this does not mean wearing identification that is likely to endanger the wearer (such as a hat that is luminous in the dark) nor does it prevent the use of camouflage that makes use of the conditions in the field (hiding among trees and bushes). The intention behind the directive is that anyone seeing the combatant can distinguish between him and a non-combatant civilian. Concealment that is prohibited under the rules of war is not hiding in the contours of the landscape but assimilation into the human landscape, that is to say, into the innocent population that is not involved in the war. A soldier must not kill or injure people belonging to the other side when he is not distinguishable from the civilian population. Soldiers in the regular army who do not wear uniform and do not wear a permanent identification sign will not be considered as legitimate combatants. The use by deception of the enemy’s uniform is a breach of the rules of warfare.
- Combatants are required to carry their weapons visibly. This condition completes the conditions concerning the wearing of uniform or the carrying of a permanent sign, and it is also intended to maintain the identification between soldiers and the civilian population. It is understood that it does not prevent the wearing of a revolver in a special holster or carrying grenades in a kit-bag, and does not even prevent the use of a surprise tactic.
- Combatants are required to conduct themselves as required by the rules and customs of war. This is the most basic condition. It is understood that in order to be able to benefit from the protection of the rules of war, combatants are required to be ready to grant these defences even to combatants on the other side. A soldier who commits a war crime shall not be granted the status of a prisoner-of-war and he can be tried in a court of law for his crimes (for example a soldier who has attacked innocent civilians). This also applies if he did these deeds when he was wearing uniform, was carrying a weapon openly and was part of an hierarchical organisation.
In order to check whether this condition has been fulfilled, there is a double test both on the group level and also on the individual level: a soldier belonging to an organisation that does not honour the rules of war (such as a terrorist organisation) will not acquire protection even if he himself did not breach the rules of war. Consequently, Israel has refused to grant terrorists captured the status of prisoners-of-war, even if they themselves did not perform acts of terror. After this an examination must be performed to check whether the combatant himself breached the rules of war. Even a soldier serving in a regular army who has himself breaches the rules of war (attacked civilians for example) will not be defended against his actions.
- The combatant belongs to one of the parties to the dispute. Combatants are required to belong to one of the warring parties, i.e. to one of the countries participating in the armed conflict. A soldier belonging to a terrorist organisation or an unrecognised militia will not be granted the status of prisoner-of-war.
- Lack of a duty of loyalty to the arresting country. This condition is not mentioned in the Convention but it is accepted in practice. It is designed to prevent a situation in which a national of a particular country betrays it and joins the ranks of the enemy, and when arrested escapes the charge of treason using the claim of being a ‘prisoner-of-war’.
In addition to these conditions, citizens assigned to jobs in the armed forces, such as civilians working for the army, military correspondents, contractors performing services for the army, etc., carrying a card from the army confirming their status will also receive the status of prisoner-of-war.
The third Geneva Convention provides (in clause 5) that if a combatant is caught and his status is unclear, he should be granted the rights to which a prisoner-of-war is entitled until his status has been clarified.
The 1977 Additional Protocols drastically reduce the conditions for defining a “legal combatant” by determining that it is enough that a fighter in the underground must carry his weapons openly during an operation and when he is visible to the enemy, and there is no need for the rest of the conditions. Furthermore, the protocols establish that even the failure to comply with the rules of war are no reason to deny the right of a combatant in an irregular organisation to prisoner-of-war status. Furthermore, even a fighter who has not carried his weapon openly will nevertheless not be considered as an official prisoner-of-war, but the Additional Protocols require him to be given protection equal to that of a prisoner-of-war.
Clearly this empties the provisions of the Geneva Convention of all content since the significance of it is the cancellation of the main reasons for which the definitions were originally determined, namely the mutual abiding by the rules of war as well as a distinction between fighters and the civilian population and preventing the concealment of combatants in a civil war.
In practice, the Additional Protocols confer the protection of prisoners-of-war status on every organised terror group under the direct command of the commander responsible for its orders. Of course, countries that have had dealings with terror groups have not accepted these directives and various countries (including Israel and the United States) have not ratified the Additional Protocols. The claims made by terrorists to the IDF martial courts that they are entitled to the status of prisoners-of-war, have been rejected. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, pp. 29–33.
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 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. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:
(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate. 
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.
Kenya
Kenya’s LOAC manual (1997) states:
All combatants are required to distinguish themselves from the civilian population, usually by wearing uniform. However, where because of unusual combat conditions they are unable to do so, they do not lose their combatant status provided that they carry their arms openly
(a) during every military engagement and
(b) as long as they are visible to the enemy while engaged in a military deployment, that is, in any movement towards a place from which or where a combat action is to take place. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 8.
[emphasis in original]
Madagascar
Madagascar’s Military Manual (1994) states:
All combatants are required to distinguish themselves from the civilian population during each military engagement or a preparatory military operation. Regular armed forces or those forces attached to them distinguish themselves usually by wearing uniform. However, where because of the nature of hostilities, they are unable to do so, they do not lose their combatant status provided that they carry their arms openly. 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 2-SO, § A
[emphasis in original]
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on prisoner-of-war status under the 1949 Geneva Convention III, states:
146. …
In exceptional cases, when required by the nature of the hostilities, combatants may be released from the obligation to distinguish themselves from the civilian population by wearing a uniform or a fixed distinctive sign recognizable at a distance during military operations. However, in such situations, these combatants must distinguish themselves by carrying arms openly during the engagement and during such time 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. Failure to comply with the obligation to carry arms openly can deprive combatants of their status, but not of the rights and guarantees relating to it, if they are prosecuted for carrying weapons illegally either with or without other offences.
148. To avoid uncertainty and prevent any arbitrary measures at the time of capture, it is provided that persons taking part in hostilities and captured must be presumed to be prisoners of war and treated as such, even in the event of doubt as to their status. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, §§ 146 and 148.
Netherlands
The Military Manual (1993) of the Netherlands states:
In a “war of liberation” and in case of resistance in occupied territory, it is usually difficult to fully fulfil the elementary requirements placed upon combatants. In armed conflicts which are waged with guerrilla-like tactics it is not feasible for combatants to distinguish themselves at all times from the civilian population and to carry arms openly continuously.
Therefore, additional rules apply to “wars of liberation” and for resistance in occupied territory. These rules are based on the fact that, in principle, combatants ought to comply with the general requirement of distinction from the civilian population. There are, however, situations in which armed combatants cannot distinguish themselves from the civilian population owing to the nature of hostilities. In such situations, fighters nevertheless maintain their status of combatants provided they carry their arms openly:
- during each military engagement, and
- whilst engaged in a military deployment preceding an action.
The Netherlands has joined the position of a number of NATO countries that the phrase “engaged in a military deployment” means “any movement towards a place from which an attack will be launched”.
This rule implies more relaxed standards for combatants in a war of liberation or in case of resistance in occupied territory. They no longer need to be in uniform or to wear a distinctive emblem. They only need to carry their arms openly in specific circumstances. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. III-4.
Netherlands
The Military Handbook (1995) of the Netherlands states:
Combatants have to distinguish themselves through their uniform or through a fixed and visible distinctive sign. In any case, combatants have to distinguish themselves by carrying their arms openly during each military engagement and during such time as they are visible to the adversary while they are engaged in a military deployment preceding the launching of an attack. 
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-39.
Netherlands
The Military Manual (2005) of the Netherlands states:
Section 4 - Freedom fighters and resistance fighters
0316. In a “war of liberation” … and in a resistance movement in occupied territory, it is usually difficult exactly to meet the elementary requirements made of a combatant. In armed conflicts fought with guerrilla-type tactics, it is simply not feasible for combatants at all times to distinguish themselves from the civilian population and constantly bear their arms openly.
0317. Freedom fighters and resistance fighters
Supplementary rules therefore apply to a “war of liberation” and to resistance in occupied territory. The main priority is that the combatant in principle should comply with the general requirement to stand out from the civilian population.
Because of the nature of the hostilities, however, situations will occur in which armed combatants cannot distinguish themselves from the civilian population.
The fighter still retains combatant status when at least bearing arms openly:
- during every military encounter; and
- when moving into position before undertaking an action.
These rules are eased for combatants in a war of liberation or for resistance in occupied territory. They no longer have to be uniformed or to wear an identifying emblem. They need to bear their arms openly only in certain circumstances.
0318. The Netherlands and a number of other NATO countries have adopted the view that “moving into position” means any movement to a place from which the attack is to be launched.
0319. Combatants in the situation described here, who do not bear their arms openly and who fall into the hands of the other side, forfeit their right to be treated as prisoners of war. They should, however, be granted protection equivalent to that normally afforded to prisoners of war. This supplementary regulation is a clear compromise. It takes account of the interests of the fighters because, in principle, they are recognized as combatants and only exceptionally forfeit that status. It takes account of the other side’s interests because, precisely in that exceptional case, it may try and punish those caught “in the act” as persons without status.
No examples of this provision yet exist. It is assumed generally that it is not simple to apply. If the Dutch armed resistance in the Second World War is examined according to the current rules, it almost certainly did not always meet the standards set under current law. It is especially doubtful whether arms were carried openly during the periods now described in AP I [1977 Additional Protocol I] Article 44 (see point 0317). 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 0316–0319.
The manual further states:
Freedom and resistance fighters in a “war of liberation” (see points 0316 ff.), who do not meet the set minimum requirements for action as combatants, do not acquire prisoner-of-war status when they fall into the hands of the adversary.
The minimum requirements relate to the open bearing of arms:
- during each military encounter and
- when taking up position prior to commencement of an action.
Such persons certainly must be afforded protection equivalent in every respect to that granted under the Prisoners of War Convention [1949 Geneva Convention III]. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0705.
New Zealand
New Zealand’s Military Manual (1992) states:
By Article 44, 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 case of State’s regular forces, the uniform worn by the forces strengthens the distinction. Art. 44(3) of the Protocol, however, recognizes that there may be situations when, owing to the nature of the hostilities, an armed combatant cannot distinguish himself from the civilian population, either by recognizable marks or by his arms although he is required to carry his arms openly during an engagement or while visible during deployment prior to an attack. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 805(3) and (4).
The Manual further states that the situations to which the rule contained in the second sentence of Article 44(3) of the 1977 Additional Protocol I applies are
special and exceptional. Many States, including New Zealand in its ratification, have declared that these situations can occur only … during a war of self-determination conducted by a national liberation movement or in occupied territory. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 805(3), footnote 17.
With respect to the expression “visible to the adversary”, the manual states:
The text does not indicate whether they must be visible to the naked eye or whether it is sufficient for them to be seen with the aid of instruments. New Zealand’s declaration on ratification provided for the term to include “the assistance of any form of surveillance, electronic or otherwise, available to help keep a member of the armed forces of the adversary under observation.” While this view was shared by a number of Western States at the time of negotiation of [the 1977 Additional Protocol I], few States have made it the subject of an understanding: Australia, indeed, takes the view that visibility without electronic aids is a more appropriate interpretation. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 805(4), footnote 23.
With respect to the term “deployment”, the manual states: “Many States, including New Zealand on ratification [of the 1977 Additional Protocol I], have declared that this means any movement towards a place from which an attack is to be launched.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 805(4), footnote 24.
Russian Federation
The Russian Federation’s Military Manual (1990) provides that members of organized resistance movements enjoy prisoner-of-war status upon capture provided they fulfil the conditions set out in Article 4(A)(2) of the 1949 Geneva Convention III. 
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 13.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
In addition [to captured combatants], the following persons captured by the enemy are also prisoners of war:
- members of militias and of volunteer corps, including those of organized resistance movements, belonging to a party to the conflict. 
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:
In situations where armed combatants cannot distinguish themselves owing to the nature of the hostilities, they retain their status as combatants if they carry their arms openly during every military engagement and for as long as they are visible to the enemy while engaged in a military deployment (ie any movement towards a place from which, or where, a combat action is to take place). 
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, § 27. 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:
In situations where armed combatants cannot distinguish themselves owing to the nature of the hostilities, they retain their status as combatants if they carry their arms openly during every military engagement and for as long as they are visible to the enemy while engaged in a military deployment (i.e. any movement towards a place from which, or where, a combat action is to take place). 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, [in a section numbered § 31, while in fact located between § 49 and § 50].
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Guerrillas ([1977] Additional Protocol I article 44.3)
- This article further states that in situations in armed conflicts where, owing to the nature of the hostilities, a combatant cannot distinguish himself, he shall retain his status as a combatant, provided that, in such situations he carries his arms openly:
[-] During each military engagement, and
[-] During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
Conclusion
Guerrilla forces are regarded as combatants and entitled to POW [prisoner-of-war] status as long as they carry their arms openly during each military engagement and during such time as they are visible to the adversary while being engaged in a military deployment preceding the launching of an attack in which they are to participate and provided they respect the LOAC [law of armed conflict]. 
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. 37 and 41.
Spain
Spain’s LOAC Manual (1996) states that guerrilleros are considered lawful combatants if “they operate in occupied territory, carry arms openly during each engagement and during any movement towards the place from which or towards which an attack is to be launched”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 1.3.a.(1).
Spain
Spain’s LOAC Manual (2007) states that “guerrillas are only considered lawful combatants when they act in occupied territory and carry their arms openly during operations and any movement towards a place from or on which an attack is to be launched”. 
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, § 1.3.a.(1).
The manual further states: “It is accepted that, in some cases, combatants are unable to distinguish themselves as such because of the ‘nature of the hostilities’.” 
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, § 2.4.c.(8).
Sweden
Sweden’s IHL Manual (1991) states:
Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:
(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
Acts which comply with the requirements of this paragraph shall not be considered as perfidious. 
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.
Sweden’s IHL Manual states: “The rule in Article 44:3 may only be applied by resistance units in enemy occupied or held territory or – in the case of a national liberation movement – within an area controlled by the adversary.” The manual considers that part of the text contained in the second sentence of Article 44(3) of the 1977 Additional Protocol I, namely the description “during the time the combatant is visible to the adversary when participating in military preparation for the launching of an attack in which he is to take part”, is “very unclear, giving rise to varying interpretations”. 
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. 37.
Switzerland
Switzerland’s Basic Military Manual (1987) states:
Exceptionally, for example, in the case of guerrilla warfare, combatants are not obliged to wear a uniform or a distinctive sign. They are considered as members of the armed forces who have the right to prisoner-of-war status, provided they fight for a State or a liberation movement, within an organization which has a responsible command and a disciplinary system, and provided they carry their arms openly 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(2); see also Article 64.
United Kingdom of Great Britain and Northern Ireland
The United Kingdom’s LOAC Pamphlet (1981) states:
2. All combatants are required to distinguish themselves from the civilian population, usually by wearing uniform. However, where because of unusual combat conditions they are unable to do so, they do not lose their combatant status provided that they carry their arms openly:
(a) during each military engagement, and
(b) while visible to the enemy when deploying before attack.
3. These unusual combat conditions can only occur in occupied territories and during wars of national liberation.
5. “Deployment” in this context means any movement towards the place from which an attack is to be launched. 
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, 3 and 5.
[emphasis in original]
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
4.5. “There are situations in armed conflicts where, owing to the nature of the hostilities, an armed combatant cannot so distinguish himself”. In such situations, a special rule applies and the individual will retain his status as a combatant provided that he “carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate”.
In these exceptional situations, there is no obligation for a combatant to distinguish himself from the civilian population at any other time. The combatant is permitted, in effect, to disguise himself as a member of the civilian population and thereby seek to obtain the protection from attack given to the latter, except during the period of the attack and deployment.
4.5.1. Wide application of this special rule would reduce the protection of civilians to vanishing point. Members of the opposing armed forces would come to regard every civilian as likely to be a combatant in disguise and, for their own protection, would see them as proper targets for attack. The special rule is thus limited to those exceptional situations where a combatant is truly unable to operate effectively whilst distinguishing himself in accordance with the normal requirements. The United Kingdom, together with other states, made a formal statement on ratifying Additional Protocol I that this exception could only apply in occupied territory or in conflicts to which Additional Protocol I, Article 1(4) apply. Even in those cases, there are many occasions on which combatants can still comply with the general rule of distinction, which remains in force, when the special rule would not apply.
4.5.2. Members of irregular armed forces, whether they comply with the rule of distinction or not, are legitimate objects of attack when taking a direct part in hostilities.
4.5.3. Even when the special rule applies, it requires, as a condition of retaining combatant status, that arms be carried openly in two cases. The first is during a military engagement, that is, when the combatant is in contact with the enemy. The second is during such time as he is visible to the adversary while engaged in a military deployment preceding the launching of an attack in which he is to participate. The term “deployment” includes individual as well as group deployments. On ratifying Additional Protocol I, the United Kingdom, together with other states, made a formal declaration that the expression “military deployment” means any movement towards a place from which an attack is to be launched. The requirement to carry arms openly during any such movement is limited to such time as the combatant is visible to the adversary. In the light of modern technical developments, “visible” cannot be construed as meaning only “visible to the naked eye”. A combatant is accordingly required to carry his arms openly if he is visible through binoculars or, during the night, visible by the use of infra-red or image intensification devices. The test is whether the adversary is able, using such devices, to distinguish a civilian from a combatant carrying a weapon. If such distinction can be made, the combatant is “visible to the adversary”. The wide availability of these devices means that combatants who are seeking to take advantage of the special rule should carry their arms openly well before they are actually in contact with the enemy.
4.5.4. Combatants who comply with the requirements set out above will not be regarded as committing perfidious acts, such as the feigning of civilian, non-combatant status. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 4.5–4.5.4.
[emphasis in original]
United States of America
The US Air Force Pamphlet (1976) provides that irregular forces, such as members of organized resistance movements belonging to a party to the conflict, are considered combatants if they meet certain requirements “customarily required of all combatants”, including having a fixed distinctive sign recognizable at a distance and carrying arms openly. 
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) and 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), § 11.7.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states:
Civilians who during an armed attack or a military operation preparatory to an attack do not wear any distinctive sign, that is do not distinguish themselves from the civilian population, are considered combatants and members of the armed forces, provided they carry arms openly during each military engagement as well as during such time as they are visible to the adversary preceding an attack in which they are to participate and provided they comply with the laws of war. 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 48(4).
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
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, 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 in order to benefit from prisoner-of-war status, a person must carry arms openly. The Court specified that the phrase “carrying arms openly” was not to be construed as carrying arms in places where the arms and the persons bearing them cannot be seen, nor does it refer to bearing arms during a hostile engagement. According to the Court, the fact that the defendants used their weapons during their encounter with the Israel Defense Forces was unimportant since no weapons were known to be in their possession until they started firing at Israeli soldiers. It was thus ruled that they did not carry arms openly. 
Israel, Military Court at Ramallah, Kassem case, Judgment, 13 April 1969.
Israel
In its decision in the Muhammad Srur case in 2007, Israel’s Nazareth District Court stated:
8. Article 4 of the [Third Geneva] Convention specifies the category of persons who will be deemed to hold the status of prisoner of war.
Article 4 A (1) states:
Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
The litigants relate at length to the interpretation of this provision; however, it seems that the question, as it relates to Hezbollah and to the status of its combatants, has already been decided by the Supreme Court, in HCJ 2967/00, Batya Arad v. The Knesset, P. D. 54 (2) 188 (2000), whereby members of Hezbollah are not to be considered prisoners of war, if only inasmuch as the organization operates in breach of the laws of war. In the words of the Court [at page 191];
It is sufficient that article 4A(2)(d) of the Third Geneva Convention is not met. According to this provision, one of the conditions that must be fulfilled to come within the definition of “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 belong are terrorist organizations operating in breach of the laws and customs of war. For example, these organizations intentionally harm civilians and fire from among a civilian population, which they use as a shield. These actions contravene international law. Indeed, the consistent position of Israel over all the years has been that these organizations, such as Hezbollah, should not be considered organizations to which the Third Geneva Convention applies. We found no reason to interfere with this position.
These words, stated seven and a half years ago, apply today as well, contrary to the argument raised by the defendants. The defendants base their analysis on the contention that, since 2005, members of Hezbollah have joined the Lebanese establishment, have taken part in elections, have been elected to parliament, and their representatives have even served as ministers in the Lebanese government. We do not believe that the organization abandoned its positions, as appears from the opinion of “Roth” and also from the testimony of the expert on behalf of the defendants, as to which the Honorable Justice Rubinstein, in HCJ 8780/06, has already expressed his thoughts:
This opinion (of 4 October 2006), which did not focus on the subject under review (the status of Hezbollah members), indicates that the organization plays a “dual game” – on the one hand, it took part in the Lebanese elections and its representatives serve in the Lebanese government (as of the time of the opinion – E.R.), and on the other hand, the organization continues to exist and take an independent policy in opposition to Security Council Resolution 1559, and to maintain its existence as a military force. Senior officials in the Lebanese government, such as the prime minister and minister of the interior, have made statements indicating that the Lebanese government does not know about the abduction of IDF [Israel Defense Force] soldiers. The opinion indicates that, also after Security Council Resolution 1701 and the truce of 14 August 2006, Hezbollah has operated independently and continues to act like an independent terrorist organization that is not subject to the government of Lebanon.
As can be seen, the Supreme Court has stated its position regarding this contention and regarding the opinion presented to us, that notwithstanding the fact that Hezbollah took part in various Lebanese governmental frameworks, it continued to exist as an independent entity and pursued its own entirely independent policy as a terrorist organization, without even informing the Lebanese government officials of its intentions or actions.
9. Furthermore, the accepted interpretation of the expression “armed forces” refers to members of the regular forces, of any kind and type, of a state, including members of militias and volunteer corps, all of whom are under the command of the central government’s institutions. The defendants’ attempt to come within the definition of forces that are not subject to the central government is inconsistent with the language of the definition, as well as with the interpretation given to the expression by the learned Pictet – the official commentator of the Convention on behalf of the Red Cross. According to Pictet’s interpretation of article 4, there is a clear distinction between militias and volunteer corps that are part of the regular army, and forces that are independent:
… the delegates to the 1949 Conference reverted, at the suggestion of the Netherlands Delegation, to the principle stated in Article 1 of the 1907 Hague Regulations, which made a distinction between militias and volunteer corps forming part of the army and those which are independent. [emphasis added by Nazareth District Court]
We, too, are of the opinion that the expression “militias and volunteer corps,” which are unified under the Convention, should not be expanded to include organizations established on their own, or on behalf of a foreign sovereign – such as Hezbollah in the present case, which is subject to the orders of the Iranian government in one form or another – unlike volunteer forces that are unified by the central government, such as, by way of example only, Civil Defense or home defense forces, which are armed by the central government and subordinate to its command.
Indeed, the learned Dinstein so interpreted article 4 A (1) of the Convention:
The reference is to an army in the sweeping meaning of the term – land, sea, and air forces – including also auxiliary units, which comprise part of the state’s armed forces. Below we shall relate to this category using the language regular forces. It is important, therefore, to understand that it is not intended here to distinguish between a regular army and reserves, or between compulsory and regular service. All these come within the rubric of regular forces. The distinction is between regular forces of any kind, on the one hand, and irregular forces in the meaning of partisans or guerilla fighters, on the other hand. 
Israel, Nazareth District Court, Muhammad Srur case, Decision, 4 December 2007, §§ 8–9.
In his Separate Opinion, Judge Menachem Ben David stated:
Article 4 A (1) of the Third Geneva Convention specifies who are entitled to protection under the Convention, and we see that they are members of the armed forces of parties to the conflict with “parties to the conflict” here being the states that are at war with each other. Nobody can argue that the defendants, and other members of Hezbollah, come within this category. Others entitled to this status are members of militias or volunteer corps constituting a part of the armed forces of the parties to the conflict. In the English original, the article speaks of members of militias and volunteers as “forming part” of such armed forces. There is no doubt that the article refers to civilian, or semi-military, bodies that are part of the armed forces of their mother country and are combined with them or attached to them. As was explained, the logic underlying the Convention is intended to give reciprocal protection to members of the armed forces of countries that are at war with each other, and their members fall captive, when those soldiers did not act on their own but as agents on a mission for the sovereign of their country and upon its orders. It is known that every one of them has the obligation of loyalty to his country and to the sovereign leading it, and must obey the sovereign’s orders, including going to battle, so it would not be proper or fair for the adversary state to prosecute the combatant if taken captive. The same logic dictates that protection should also be given to members of a militia and members of a volunteer corps, who are part of those armed forces, i.e., they belong and are part of them in organizational terms, act in their frameworks, accept the authority of the same sovereign, and act in accord with its orders and as its agents. The defendants and their fellow members in the organization clearly do not meet these conditions. 
Israel, Nazareth District Court, Muhammad Srur case, Separate Opinion of Judge Menachem Ben David, 4 December 2007, pp. 23–24.
[emphasis in original]
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:
Article 44(3) 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. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:
(a) [d]uring each military engagement, and
(b) [d]uring such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
In my view … the arms that [the applicants] were supposed to carry openly were the arms that they claim to have used for the armed conflict, namely their bombs. To secretly plant bombs at night certainly does not comply with [Article 44(3) of the 1977 Additional Protocol I]. When they planted the bombs they were not visible to the enemy. The arms that they claim to have carried openly were their own licensed handguns. Not a single shot was fired from a firearm during any skirmish. Moreover, their handguns would not distinguish them from the civilian population in accordance with the provisions of the Protocol. In this country thousands of people openly carry their licensed handguns … The arms referred to [in Article 44(3)] are those that will be used to carry out the attack. It is clear that those arms, the bombs, were not carried openly.
… [T]he applicants cannot claim that they carried their weapons openly from the moment they were visible to the enemy.
The submission is made on behalf of the applicants that they wore distinctive clothing in the form of uniforms and badges during each attack and in preparation for an attack, and that they therefore did not lose their status on the basis of this provision. I reject this submission. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 73.
[emphasis in original]
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
At the CDDH, Argentina abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) because “the text adopted did not guarantee the civilian population the minimum protection it needed”. 
Argentina, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 124, § 33.
Australia
Upon ratification of the 1977 Additional Protocol I, Australia stated:
It is the understanding of Australia that in relation to Article 44, the situation described in the second sentence of paragraph 3 can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1. Australia will interpret the word “deployment” in paragraph 3(b) as meaning any movement towards a place from which an attack is to be launched. It will interpret the words “visible to the adversary” in the same paragraph as including visible with the aid of binoculars, or by infra-red or image intensification devices. 
Australia, Declarations made upon ratification of the 1977 Additional Protocol I, 21 June 1991, § 2.
Belgium
Upon ratification of the 1977 Additional Protocol I, Belgium stated:
With respect to Article 44, the Belgian Government declares that the armed conflict situations described in paragraph 3 can arise only in occupied territory or in the armed conflicts covered by Article 1, paragraph 4, of the Protocol. Furthermore the Belgian Government interprets the term “deployment” used in subparagraph (b) of the said paragraph 3 as comprising any individual or collective movement towards a position from which an attack is to be launched. 
Belgium, Interpretative declarations made upon ratification of the 1977 Additional Protocol I, 20 May 1986, § 4.
Brazil
At the CDDH, Brazil voted against Article 42 of the draft Additional Protocol I (now Article 44) in Committee III because
the provisions relating to identification of combatants were not sufficiently clear to ensure that the civilian population would be protected from the inevitable risks when it was not possible to identify unmistakably those engaged in military activities. 
Brazil, Statement at the CDDH, Official Records, Vol. XV, CDDH/III/SR.56, 22 April 1977, p. 185, § 80.
In the final vote in plenary session, Brazil abstained but gave no additional explanation.
Canada
At the CDDH, Canada abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) because it “was concerned about the perhaps necessary vagueness of the language adopted in some paragraphs, but hoped that time would make the meaning more precise”. 
Canada, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 145, § 23.
Canada further explained its understanding that the situations referred to in the second sentence of the third paragraph “could exist only in occupied territory; or in armed conflicts as described in Article 1, paragraph 4, of Protocol I” and that the term “military deployment” meant “any movement towards a place from which an attack was to be launched”.  
Canada, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 146, § 24.
Canada
Upon ratification of the 1977 Additional Protocol I, Canada stated:
It is the understanding of the Government of Canada that:
a. the situation described in the second sentence of paragraph 3 of Article 44 can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1; and
b. the word “deployment” in paragraph 3 of Article 44 includes any movement towards a place from which an attack is to be launched. 
Canada, Reservations and statements of understanding made upon ratification of the 1977 Additional Protocol I, 20 November 1990, § 6.
Colombia
At the CDDH, Colombia abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) because it lacked precision and did not safeguard the civilian population sufficiently. 
Colombia, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 181.
Egypt
At the CDDH, Egypt stated that “the right to disguise was confined to the combatants of liberation movements; regular combatants were not released … from the obligation to wear uniform during military operations – failure to do so would be to commit an act of perfidy”. It further explained that it interpreted the expression “military deployment” as meaning “the last step when the combatants were taking their firing positions just before the commencement of hostilities; a guerrilla should carry his arms openly only when within range of the natural vision of his adversary”. 
Egypt, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 145, §§ 19 and 21.
France
Upon ratification of the 1977 Additional Protocol I, France stated:
The Government of the French Republic considers that the situation described in the second sentence of paragraph 3 of Article 44 can exist only in case a territory is occupied or in case of an armed conflict within the meaning of paragraph 4 of Article 1. The term “deployment” used in paragraph (3)(b) of this article means any movement towards a place from which an attack can be launched. 
France, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 11 April 2001, § 8.
Germany, Federal Republic of
At the CDDH, the Federal Republic of Germany stated that the second sentence of Article 42(3) of the draft Additional Protocol I (now Article 44(3)) “applies only to exceptional situations such as those occurring in occupied territories” and that the term “military deployment” means “any movement toward a place from which an attack is to be launched”. 
Germany, Federal Republic of, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 136.
Germany
In reply to a written question in Parliament in 1977, a German Minister of State emphasized that the German delegation present during the negotiation of the Additional Protocols favoured the inclusion of a rule imposing a duty on guerrillas to carry arms openly in combat, as well as during the phase preceding an attack. According to Germany, a clear distinction between civilians and combatants was absolutely necessary, even in the context of guerrilla warfare. 
Germany, Lower House of Parliament, Answer by Dr. Hamm-Brücher, Minister of State, to a written question, 13 May 1977, Plenarprotokoll 8/27, 13 May 1977, p. 1985.
Germany
Upon ratification of the 1977 Additional Protocol I, Germany stated:
The criteria contained in the second sentence of Article 44, paragraph 3, of Additional Protocol I for distinction between combatants and the civilian population are understood by the Federal Republic of Germany to apply only in occupied territories and in the other armed conflicts described in Article 1, paragraph 4. The term “military deployment” is interpreted to mean any movements towards the place from which an attack is to be launched. 
Germany, Declarations made upon ratification of the 1977 Additional Protocol I, 14 February 1991, § 3.
Greece
At the CDDH, Greece stated that the situations described in the second sentence of Article 42(3) of the draft Additional Protocol I (now Article 44(3)) “which were quite exceptional, could exist not only in occupied territories but also in armed conflicts as described in paragraph 4 of Article 1 of draft Protocol I”. 
Greece, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 127, § 47.
Iran
At the CDDH, Iran indicated that Article 42(3) of the draft Additional Protocol I (now Article 44(3)) “applied only to members of resistance movements fighting in occupied territory against an Occupying Power and to members of national liberation movements fighting against minority racialist régimes”. 
Iran, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 152, § 55.
Ireland
At the CDDH, Ireland abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) because it considered that “the protection of the civilian population demanded by humanitarian principles is eroded by Article 42 to an unacceptable extent”. 
Ireland, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 137.
Ireland
Upon ratification of the 1977 Additional Protocol I, Ireland stated:
It is the understanding of Ireland that:
a. The situation described in the second sentence of paragraph 3 of Article 44 can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1; and
b. The word “deployment” in paragraph 3 of Article 44 includes any movement towards a place from which an attack is to be launched”. 
Ireland, Declarations and reservations made upon ratification of the 1977 Additional Protocol I, 19 May 1999, § 7.
Israel
At the CDDH, Israel voted against Article 42 of the draft Additional Protocol I (now Article 44) because it was of the opinion that:
Article 42, paragraph 3, could be interpreted as allowing the combatant not to distinguish himself from the civilian population, which would expose the latter to serious risks and was contrary to the spirit and to a fundamental principle of humanitarian law. In the case of guerrilla warfare it was particularly necessary for combatants to distinguish themselves because that was the only way in which the civilian population could be effectively protected … Moreover, once combatants were freed from the obligation to distinguish themselves from the civilian population the risk of terrorist acts increased … Prisoner-of-war status depended on two essential conditions: first, respect for the rules of international law applicable in armed conflicts (for the members of regular forces there was a praesumptio juris et de jure that that condition had been met); secondly, a clear and unmistakable distinction between the combatants and the civilian population. They were two sine qua non conditions established in international custom and in numerous treaties. 
Israel, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, pp. 121–122, §§ 17 and 19.
Israel
The Report on the Practice of Israel states that Israel does not consider that Article 44(3) of the 1977 Additional Protocol I reflects customary international law. 
Report on the Practice of Israel, 1997, Answers to additional questions on Chapter 1.1.
Italy
At the CDDH, Italy abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) “essentially because of the ambiguity of paragraphs 3 and 4 of Article 42”, but considered that “the article was not unacceptable in itself if its true meaning … could be detected”. 
Italy, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 122, § 20.
Italy further stated that the particular situations to which the second sentence of the third paragraph referred “were evidently those which occurred in occupied territory or in other identical situations so far as substance was concerned, that was to say where resistance movements were organized”. 
Italy, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 123, § 22.
Italy
Upon ratification of the 1977 Additional Protocol I, Italy stated:
The situation described in the second sentence of paragraph 3 of Article 44 can exist only in occupied territory.
The word deployment in paragraph 3 (b) means any movement towards a place from which an attack is to be launched. 
Italy, Declarations made upon ratification of the 1977 Additional Protocol I, 27 February 1986, §§ 3–4.
Japan
At the CDDH, Japan abstained in the vote on draft Article 42 of the Additional Protocol I (now Article 44) because it considered that “the provisions of paragraph 3 on the ways in which members of irregular forces were required to distinguish themselves from civilians would lead to inadequate protection of the civilian population”. 
Japan, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 152, § 51.
Japan further stated that paragraph 3 should be construed “as applying restrictively to exceptional cases” and that the term “military deployment” used in paragraph 3(b) meant “any movement towards a place from which an attack was to be launched”. 
Japan, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 152, § 53.
Netherlands
At the CDDH, the Netherlands stated that it understood the phrase “military deployment” in paragraph 3(b) of Article 42 of the draft Additional Protocol I (now Article 44) to mean “any tactical movement towards a place from which the attack is to be launched”. 
Netherlands, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 142, § 6.
Netherlands
Upon ratification of the 1977 Additional Protocol I, the Netherlands stated with regard to Article 44(3) of the Protocol:
It is the understanding of the Government of the Kingdom of the Netherlands that the works “engaged in a military deployment” mean “any movement towards a place from which an attack may be launched”. 
Netherlands, Declarations made upon ratification of the 1977 Additional Protocol I, 26 June 1987, § 3.
New Zealand
Upon ratification of the 1977 Additional Protocol I, New Zealand stated:
It is the understanding of the Government of New Zealand that in relation to Article 44 of Protocol I, the situation described in the second sentence of paragraph 3 can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1. The Government of New Zealand will interpret the word “deployment” in paragraph 3(b) of the Article as meaning any movement towards a place from which an attack is to be launched. It will interpret the words “visible to the adversary” in the same paragraph as including visible with the aid of any form of surveillance, electronic or otherwise, available to help keep a member of the armed forces of the adversary under. 
New Zealand, Declarations made upon ratification of the 1977 Additional Protocol I, 8 February 1988, § 1.
Portugal
At the CDDH, Portugal abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) and considered that “the exceptional rule in the second sentence of the [third] paragraph did not ensure reasonable protection for the civilian population”. 
Portugal, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 148, § 36.
Republic of Korea
Upon ratification of the 1977 Additional Protocol I, the Republic of Korea stated:
In relation to Article 44 of Protocol I, the situation described in the second sentence of paragraph 3 of the Article can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1, and the Government of the Republic of Korea will interpret the word deployment in paragraph 3 (b) of the Article as meaning any movement towards a place from which an attack is to be launched. 
Republic of Korea, Declarations made upon ratification of the 1977 Additional Protocol I, 15 January 1982, § 1.
Spain
At the CDDH, Spain abstained in the vote on draft Article 42 of the Additional Protocol I (now Article 44) because:
The text presented does not guarantee the safety of the civilian population, which is the essential aim of the instruments under consideration. In the view of this delegation, the terms in which the article is drafted could favour the development of the new phenomenon known as urban guerrilla warfare and, therefore, a certain form of terrorism, thus constituting a grave danger to the security of States and a step on the road to international subversion. 
Spain, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.55, 26 May 1977, p. 138.
Spain
Upon ratification of the 1977 Additional Protocol I, Spain stated:
It is understood that the criteria mentioned in sub-paragraph b of Article 44(3) on the distinction between combatants and civilians can be applied only in occupied territories. The Spanish Government also interprets the expression “military deployment” to mean any movement towards a place from which or against which an attack is going to be launched. 
Spain, Interpretative declarations made upon ratification of the 1977 Additional Protocol I, 21 April 1989, § 4.
Switzerland
At the CDDH, Switzerland abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) because it was afraid that “the article would only have the effect of doing away with the distinctions between combatants and civilians. The consequence would be that the adverse party could take draconian measures against civilians suspected of being combatants.” 
Switzerland, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 131, § 68.
United Arab Emirates
At the CDDH, the United Arab Emirates stated that it agreed with the interpretation given by Egypt of the expression “military deployment”. 
United Arab Emirates, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 146, § 25.
United Kingdom of Great Britain and Northern Ireland
At the CDDH, the United Kingdom abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) and stated:
Any failure to distinguish between combatants and civilians could only put the latter at risk. That risk might well become unacceptable unless a satisfactory interpretation could be given to certain provisions of Article 42. 
United Kingdom, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 132, § 73.
The United Kingdom further stated that it considered that “the situations in which a guerrilla fighter was unable to distinguish himself from the civilian population could exist only in occupied territory” and that the word “deployment” must be interpreted as meaning “any movement towards a place from which an attack was to be launched”. 
United Kingdom, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, p. 132, § 74.
United Kingdom of Great Britain and Northern Ireland
Upon signature of Additional Protocol I in 1977, the United Kingdom stated in relation to Article 44 of the Protocol:
that the situation described in the second sentence of paragraph 3 of the Article can exist only in occupied territories or in armed conflicts covered by paragraph 4 of Article 1, and that the Government of the United Kingdom will interpret the word “deployment” in paragraph 3 (b) of the Article as meaning “any movement towards a place from which an attack is to be launched”. 
United Kingdom, Declarations made upon signature of the 1977 Additional Protocol I, 12 December 1977, § c.
The United Kingdom made a similar statement upon ratification of the Additional Protocol I in 1998. 
United Kingdom, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § g.
Uruguay
At the CDDH, Uruguay abstained in the vote on Article 42 of the draft Additional Protocol I (now Article 44) and referred to the statements made by Argentina and Switzerland and to its own statement in Committee III in which it had expressed its concern about “the foreseeable consequences of the lack of a clear distinction between the combatants and the civilian population, which would expose the civilian population to a quite unnecessary risk”. 
Uruguay, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 144, § 18; Statement at the CDDH, Official Records, Vol. XV, CDDH/III/SR.55, 22 April 1977, p. 160, § 32.
United States of America
At the CDDH, the United States explained its vote in favour of Article 42 of the draft Additional Protocol I (now Article 44) as follows:
The article conferred no protection on terrorists. It did not authorize soldiers to conduct military operations while disguised as civilians. However, it did give members of the armed forces who were operating in occupied territory an incentive to distinguish themselves from the civilian population when preparing for and carrying out an attack … As regards the second sentence of paragraph 3, it was the understanding of [the US] delegation that situations in which combatants could not distinguish themselves throughout their military operations could exist only in the exceptional circumstances of territory occupied by the adversary or in those armed conflicts described in Article 1, paragraph 4, of draft Protocol I … The sentence was clearly designed to ensure that combatants, while engaged in military operations preparatory to an attack, could not use their failure to distinguish themselves from civilians as an element of surprise in the attack. Combatants using their appearance as civilians in such circumstances in order to aid in the attack would forfeit their status as combatants … Combatants must distinguish themselves from civilians during the phase of the military operation which involved moving to the position from which the attack was to be launched.  
United States, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, pp. 149–150, § 43.
United States of America
Upon signature of the 1977 Additional Protocol I, the United States stated:
It is the understanding of the United States of America that the phrase “military deployment preceding the launching of an attack” in Article 44, paragraph 3, means any movement towards a place from which an attack is to be launched. 
United States, Declarations made upon signature of the 1977 Additional Protocol I, 12 December 1977, § 2.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed:
The executive branch regards [the provision of Article 44(3) of the 1977 Additional Protocol I, second sentence] as highly undesirable and potentially dangerous to the civilian population and of course does not recognize it as customary law or deserving of such status. 
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 a memorandum issued in 1988, the Office of the Legal Adviser of the US Department of State stated:
Article 44 grants combatant status to irregular forces in certain circumstances even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the existing laws of war. This was not acceptable as a new norm of international law. It clearly does not reflect customary law. 
United States, Memorandum prepared by the Office of the Legal Adviser of the Department of State, 29 March 1988, reprinted in Marian Nash (Leich), Cumulative Digest of United States Practice in International Law, 1981–1988, Department of State Publication 10120, Washington, D.C., 1993–1995, p. 3441.
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
In situations where, owing to the nature of hostilities an armed combatant cannot distinguish himself, he keeps his status as a combatant if he carries his arms openly:
a) during every military engagement;
b) as long as he is visible to the enemy while he is engaged in a military deployment, that is in any movement towards a place from which or where a combat action is to take place. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 49.
Palestine Liberation Organization (PLO)
At the CDDH, the PLO stated that the phrase “during such time as he is visible to the adversary” used in paragraph 3 of Article 42 of the draft Additional Protocol I (now Article 44) must be interpreted as meaning “visible to the naked eye” and that the phrase “while he is engaged in a military deployment preceding the launching of an attack” could only mean “immediately before the attack, often coinciding with the actual beginning of the attack”. 
Palestine Liberation Organization, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.40, 26 May 1977, pp. 147–148, § 31.