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The legal situation of “unlawful/unprivileged combatants”
Published online by Cambridge University Press: 25 February 2011
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- Research Article
- Information
- International Review of the Red Cross , Volume 85 , Issue 849: Les nouveaux types de conflits/New types of conflicts , March 2003 , pp. 45 - 74
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- Copyright © International Committee of the Red Cross 2003
References
1 This article does not address protection deriving from other bodies of law, in particular human rights law.
2 Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
3 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
4 See Article 43(2) of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (PI).
5 Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr., 22 October 2002, para. 68.
6 Article 44 of PI sets the standard for parties to the Protocol. Its status under customary international law is more doubtful.
7 See for example Aldrich, G., “The Taliban, Al Qaeda, and the determination of illegal combatants”. American Journal of International Law, Vol. 96, 2002, p. 892CrossRefGoogle Scholar; Report on Terrorism and Human Rights, op. cit (note 5), para. 69.
8 See also Report on Terrorism and Human Rights, op. cit (note 5), para. 70.
9 This may clearly be seen from the following excerpts (emphasis added):
GC I-IV, common Art. 3: “(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. (…)”
Pll, Art. 2: “1. This Protocol shall be applied without any adverse distinction founded on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria (hereinafter referred to as ‘adverse distinction’) to all persons affected by an armed conflict as defined in Article 1.
2. At the end of the armed conflict, all the persons who have been deprived of their liberty or whose liberty has been restricted for reasons related to such conflict, as well as those deprived of their liberty or whose liberty is restricted after the conflict for the same reasons, shall enjoy the protection of Articles 5 and 6 until the end of such deprivation or restriction of liberty.”
Pll, Art. 4 (1): “All persons who do not take a direct part or who have ceased to take part in hostilities (…)”
Pll, Art. 5 (1): “shall be respected as a minimum with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained”
Pll, Art. 6 (1): “This Article applies to the prosecution and punishment of criminal offences related to the armed conflict.”
10 Art. 31 of the Vienna Convention on the Law of Treaties.
11 The provisions of Part II are, however, wider in application, as defined in Article 13.
12 Pictet, J. (ed.), Commentary: IV Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958Google Scholar, (hereinafter Commentary IV), p. 46.
13 Commentary IV, op. cit (note 12), p. 46Google Scholar. Commentaries concerning the draft Convention, Final Record of the Diplomatic Conference of 1949 (hereinafter Final Record), Vol. 11 A, p. 814. See also the explanation by the Swiss Rapporteur at the Diplomatic Conference, who confirmed that interpretation, Final Record, Vol. II A, p. 793. See also the statement by the US, ibid., p. 794.
14 See Rosenblad, E., “Guerrilla warfare and international law”. Revue de droit penal militaire et de droit de la guerre, 1973, pp. 110Google Scholaret seq. Rosenblad further states: “A saboteur, who is [sic] unlawful combatant, is on the one hand punished in accordance with the Civilians Convention. Granted that he is a “protected person” (Article 4) and that in this capacity he shall be unconditionally “treated with humanity” (third paragraph of Article 5). A protected person can, however, if ‘imperative reasons of security’ make this necessary, be subjected to assigned residence or to internment (Article 78). Furthermore, the Occupying Power can under certain circumstances retain a saboteur without judgement (second paragraph of Article 5) and, in the case of prosecution, sentence him to death (second paragraph of Article 68).”
15 See Kalshoven, F., “The position of guerrilla fighters under the law of war”. Revue de droit pénal militaire et de droit de la guerre, 1972, p. 72Google Scholar, for guerrilla fighters whom he defines as persons (taking a direct part in hostilities) not regarded as prisoners of war, ibid., pp. 65, 69.
16 CDDH/SR.41, O.R. Vol. VI, p. 155.
17 See in this regard Bothe, M., Partsch, K. and Solf, W., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff, The Hague, 1982, pp. 261Google Scholaret seq.
18 See for example Colonel Hodgson (Australia): “In his opinion, the rights of the State in relation to certain persons such as spies, saboteurs, fifth columnists and traitors, had been insufficiently defined. (…) It was desirable to provide for the necessary exceptions to the rules for protection contained in the Convention.” (Committee III (Civilians), 2nd meeting, 26.4.1949), Final Record, Vol. II A, p. 622.
19 Wilhelm (ICRC), Cohn (Denmark), Final Record, Vol. II A, p. 433; Brigadier Page (UK): “The whole conception of the Civilians Convention was the protection of civilian victims of war and not the protection of illegitimate bearers of arms, who could not expect full protection under rules of war to which they did not conform. Such persons should no doubt be accorded certain standards of treatment, but should not be entitled to all the benefits of the Convention. (…) To sum up, the United Kingdom Delegation considered that (…) civilians who violated those rules should cease to be entitled to the treatment provided for law-abiding citizens. The United Kingdom Delegation would not however oppose any reasonable proposal to ensure that such civilians were humanely treated.” (Committee III (Civilians), 2nd meeting, 26.4.1949), Final Record, Vol. II A, p. 621; General Dillon (USA): “Clearly, the persons not enumerated in Article 3 [Art. 4 GC III] were not to be deprived of all rights”. Final Record, Vol. II A, p. 409.
20 Final Record, Vol. II A, p. 433.
21 “Persons protected under the present Convention are those who, at a given moment and in whatever manner, find themselves, in the case of a conflict or occupation, in the hands of a Power of which they are not nationals; (…) Persons such as prisoners of war, the sick and wounded, the members of medical personnel, who are subject to other international conventions, remain protected by the said conventions.” Art. 3, Revised and New Draft Conventions for the Protection of War Victims, texts approved and amended by the XVIIth International Red Cross Conference, Geneva, 1948, pp. 114–115.
22 Final Record, Vol. II A, p. 433.
23 Final Record, Vol. II A, p. 480.
24 Final Record, Vol. III, p. 63.
25 Final Record, Vol. II A, p. 481.
26 Final Record, Vol. II A, p. 562. The last two sentences of the Report to the Plenary Assembly, which touch upon separate issues but were nevertheless intermingled, gave rise to controversy in the Plenary. See Final Record, Vol. II B, p. 268.
27 Final Record, Vol. II B, pp. 271 et seq.
28 The term “sabotage” in a military context has been said to denote acts committed in order to damage or destroy the infrastructure material of the enemy, “lines of communication” and “military installations” (GC IV, Articles 64 and 68). See Rosenblad, op. cit (note 14), p. 109.
29 Commentary IV, op. cit (note 12), p. 52Google Scholar (“Some people considered that the Convention should apply without exception to all the persons to whom it referred, while to others it seemed obvious that persons guilty of violating the laws of war were not entitled to claim its benefits. These divergent views had not been expressed [during preliminary discussions], however, and the problem did not arise until after the Stockholm Conference. It arose then because the Conference had adopted a definition of protected persons which covered those who committed hostile acts without being members of the regular combatant forces.”).
30 Mr. Castberg (Norway): “Saboteurs could not of course claim protection under the Prisoners of War Convention; they should nevertheless be protected against criminal treatment and torture.” Mr. Söderbolm (Sweden) and Mr. Dahl (Denmark) supported this view. Colonel Du Pasquier (Switzerland) remained somewhat ambiguous in saying “In regard to the legal status of those who violated the laws of war, the Convention could not of course cover criminals or saboteurs. Moreover, Article 55 [Art. 64 of GC IV] and those following established the principle that an occupying Power was entitled to lay down penal regulations to protect its troops. On the other hand, Article 29 [Arts 31/32 of GC IV] and those following fixed the limits of such penal legislation and in particular prohibited torture and the taking of hostages.” He was in favour of the revised form of Article 3 as drawn up by the International Committee of the Red Cross [which would have covered unlawful combatants! Therefore, the Italian delegate Mr. Maresca, while expressing support for the ICRC proposal, suggested that a clause be added providing that protected persons were under an obligation not to act in such a way as to violate the rules of war.]. General Schepers (Netherlands) agreed with the Scandinavian delegates. (Committee III (Civilians), 2nd meeting, 26.4.1949), Final Record, Vol. II A, pp.621 et seq.
31 Final Record, Vol. II A, p. 622.
32 See Final Record, Vol. II A, p. 796; Commentaries concerning the draft Convention, ibid., p. 814: “Modern warfare does not take place on the battlefield alone; it also filters into the domestic life of the belligerent; enemy secret agents penetrate into the inner workings of the war machine, either to spy or to damage its mechanism. […] Many Delegations have therefore felt the fear that, under cover of the protection offered by our convention, spies, saboteurs or other persons dangerous to the State may be able to abuse the rights which it provides for them. The Delegations have considered it their duty to prevent the guarantees of the Convention acting to the advantage of surreptitious activities. The idea has thus arisen that, with respect to persons who are a secret threat to the security of the State, the benefit of the Convention should be restricted to a certain extent. Owing to the very great difficulty in tracking down these underground activities, it is intended to allow the State a free hand in its defence measures without imposing any obligations under the Convention other than the duty to ensure humane and legal treatment. It was these considerations which resulted in Article 3A [Art. 5 of GC IV] (…).”
33 Final Record, Vol. II B, pp. 377, 384: 31 votes in favour, 9 abstentions (GC IV, Art. 4); 25 votes in favour, 9 against, 6 abstentions (GC IV, Art. 5).
34 Brigadier Page (UK), Committee III (Civilians), 2nd meeting, 26.4.1949, Final Record, Vol. II A, p. 621.
35 “Persons protected under the present Convention are those who, at a given moment and in whatever manner, find themselves, in the case of a conflict or occupation, in the hands of a Power of which they are not nationals; (…) The provisions of Part II are, however, wider in application, as defined in Article II. Persons such as prisoners of war, the sick and wounded, the members of medical personnel, who are subject to other international conventions, remain protected by the said conventions.” Art. 3, Revised and New Draft Conventions for the Protection of War Victims, texts approved and amended by the XVIIth International Red Cross Conference, Geneva, 1948, pp. 114–115.
36 Ipsen, K., in Fleck, D. (ed), The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, 1995. p. 301Google Scholar; McCoubrey, H., International Humanitarian Law: Modern Developments in the Limitation of Warfare, Dartmouth, Aldershot, 2nd ed., 1998, p. 137Google Scholar; David, E., Principes de droit des conflits armés, Bruylant, Brussels, 2nd ed., 1999, pp. 397Google Scholaret seq.; Bothe, Partsch and Solf, op. cit (note 17), pp. 261 et seq.; Aldrich, , op. cit (note 7), p. 893Google Scholar, footnote 12; Draper, G.I.A.D., “The status of combatants and the question of guerrilla warfare”. British Yearbook of International Law, 1971, p. 197Google Scholar (recognizes the applicability of GC IV to persons who do not fulfil the conditions of GC III, Art. 4, but participate in hostilities in enemy territory or in occupied territory, within the limits of GC IV, Art. 5); Rosenblad, op. cit (note 14), p. 98 (recognizes the applicability of GC IV to members of organized resistance movements who do not fulfil the conditions of GC III, Art. 4, within the limits of GC IV, Art. 5); Kalshoven, , op. cit (note 15), p. 71Google Scholar (recognizes the applicability of GC IV to persons who do not fulfil the conditions of GC III, Art. 4, but participate in hostilities in enemy territory or in occupied territory. In situations other than fighting in enemy territory or occupied territory, “the guerrilla fighter who falls into enemy hands will not enjoy the full protection extended to protected persons in occupied territory. It is submitted, however, that he will not be entirely without protection. The principle expounded in Article 3 for non-international armed conflict provide at the same time a minimum below which belligerents may not go in other situations either (…) To my mind, the strongest argument in favour of this thesis lies precisely in the element of their foreign nationaity and, hence, allegiance to the opposite Party from the one which holds them in its power.”
37 Baxter, R.R., “So-called ‘unprivileged belligerency’: Spies, guerrillas, and saboteurs”. British Yearbook of International Law, 1951, pp. 328Google Scholaret seq., 343 et seq.; Baxter, R.R., “The duties of combatants and the conduct of hostilities (Law of The Hague)”, in Henry Dunant Institute and UNESCO (ed.), International Oimensions of Humanitarian Law, Martinus Nijhoff, The Hague, 1988, pp. 105Google Scholaret seq.
38 For example Defter, I., The Law of War, Cambridge University Press, 2000, p. 136Google Scholar; R.K. Goldmann/B.D. ittemore,, “Unprivileged combatants and the hostilities in Afghanistan: Their status and rights under interlational humanitarian and human rights law”. http://asil.org/taskforce/Roldman.pdf. p. 38; C. Greenwood, International law and the “war against terrorism”. International Affairs 2002, p. 316Google Scholar; Report on Terrorism and Human Rights, op. cit (note 5), para. 74.
39 317 U.S. 1, 63 S.Ct. 2 (1942).
41 See Rosas, A., The Legal Status of Prisoners of War, Helsinki, Suomalainen Tiedeakatemia, 1976, p. 411Google Scholar; Baxter, , “Unprivileged belligerency”, op. cit (note 37), pp. 329Google Scholaret seq.
42 Gasser, H.P., in Fleck, (ed.), op. cit (note 36), p. 528.Google Scholar
43 See footnotes 30 and 31.
44 Provisions on:
— the establishment of hospital and safety zones and neutralized zones;
— the conclusion of agreements for the evacuation of especially vulnerable categories of persons;
— the protection of civilian hospitals;
— the protection of medical personnel;
— the protection of transports of sick and wounded civilians and other especially vulnerable categories of persons on land, by sea or by air;
— the free passage of aid consignments;
— the special protection of children;
— permission to exchange family news; and
— facilitating enquiries relating to missing family members.
For the purpose of this article they are not relevant because they do not regulate the treatment/detention/prosecution of protected persons.
45 In addition Art. 3 common to GC I-V, the application of which is recognized in any type of armed conflict as a matter of customary international law (see the International Court of Justice in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 14 at p. 114, para. 218), would also apply, as well as other minimum guarantees which will be discussed below.
46 In the Rajic case (Review of the Indictment, Prosecutor v. Ivica Rajic, IT-95–12-R61, paras. 35–37), the ICTY held that:
“The International Committee of the Red Cross's Commentary on Geneva Convention IV suggests that the protected person requirement should be interpreted to provide broad coverage. The Commentary states that the words ‘at a given moment and in any manner whatsoever’ were ‘intended to ensure that all situations and all cases were covered’. International Committee of the Red Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 47 (Geneva 1958) (…). At page 47 it further notes that the expression ‘in the hands of’ is used in an extremely general sense.
It is not merely a question of being in enemy hands directly, as a prisoner is … In other words, the expression ‘in the hands of’ need not necessarily be understood in the physical sense; it simply means that the person is in territory under the control of the Power in question.”
47 Commentary IV, op. cit (note 12), p. 47.Google Scholar
48 Draper, , op. cit (note 36), p. 197Google Scholar; Baxter, , “Unprivileged belligerency”, op. cit (note 37), pp. 328 and 343Google Scholaret seq.; Baxter, , “Duties of combatants”, op. cit (note 37), pp. 105Google Scholaret seq.; Kalshoven, , op. cit (note 15), pp. 70Google Scholaret seq., 73; Rosas, , op. cit (note 41), pp. 411Google Scholaret seq. In one of its publications the ICRC has also chosen such a formulation, which could point to such an interpretation: “thus guerrillas who do not meet these conditions [of GC III, Art. 4] and who operate in occupied territory are protected by Geneva Convention IV”. Rules Applicable in Guerrilla Warfare, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 24 May – 12 June 1971, Paper submitted by the International Committee of the Red Cross, Geneva, January 1971, p. 19.
49 Draper, , op. cit (note 36), p. 197.Google Scholar
50 See Kalshoven, , op. cit (note 15), p. 72Google Scholar, for guerrilla fighters whom he defines as persons (taking a direct part in hostilities) not regarded as prisoners of war, ibid., pp. 65, 69.
51 See references in note 10.
52 As for possible derogations under para. 1, Commentary IV, op. cit (note 12), p. 55Google Scholar, indicates the following: “The rights referred to are not very extensive in the case of protected persons under detention; they consist essentially of the right to correspond, the right to receive individual or collective relief, the right to spiritual assistance from ministers of their faith and the right to receive visits from representatives of the Protecting Power and the International Committee of the Red Cross. The security of the State could not conceivably be put forward as a reason for depriving such persons of the benefit of other provisions — for example, the provision in Article 37 that they are to be humanely treated when they are confined pending proceedings or subject to a sentence involving loss of liberty, or the stipulation in Article 38 that they shall receive medical attention, if their state of health so requires. Furthermore, it would be really inhuman to refuse to let a chaplain visit a detained person who was seriously ill. Torture and recourse to reprisals are of course prohibited. It should, moreover, be noted that this provision cannot release the Detaining Power from its obligations towards the adverse Party. It remains fully bound by the obligation, imposed on it by Article 136, to transmit to the official Information Bureau particulars of any protected person who is kept in custody for more than two weeks. This is not, in fact, a right or privilege of the protected person, but an obligation of the Detaining Power.”
53 As far as suspicion is concerned, it is important to emphasize that “[t]he suspicion must not rest on a whole class of people; collective measures cannot be taken under this Article; there must be grounds justifying action in each individual case”. Commentary IV, op. cit (note 12), p. 55Google Scholar. See also Final Record, Vol. II A, p. 815 (Committee III report to the Plenary).
54 Rosas, , op. cit (note 41), p. 412.Google Scholar
55 See debate at the Diplomatic Conference between the representatives of the USSR and the UK, Final Record, Vol. II B, pp. 379 et seq.
56 GC IV, Art. 32. See also Final Record, Vol. II A, p. 815 (Committee III report to the Plenary): “The third paragraph defines what was left somewhat vague by the first two paragraphs. It confirms the obligations of the State as regards humane treatment and correct penal procedure; it does nothing to weaken the force of the prohibition of torture or brutal treatment.” See also the findings of the ICTY in the Delalic case, which were adopted “in order to determine the essence of the offence of inhuman treatment [under the Geneva Conventions], the terminology must be placed within the context of the relevant provisions of the Geneva Conventions and Additional Protocols”. It considered the prohibition of inhuman treatment in the context of GC II, Art. 12; GC III, Arts 13, 20 and 46; GC IV, Arts 27 and 32; GC I-IV, common Art. 3; PI, Art. 75; and PII, Arts 4 and 7; according to which protected persons “shall be humanely treated”. Any conduct contrary to the behaviour prescribed in these provisions shall constitute inhuman treatment.
57 Commentary IV, op. cit (note 12), p. 58.Google Scholar
58 Ibid., Art. 126, p. 497; Kalshoven, , op. cit (note 15), p. 72Google Scholar. Otherwise common Article 3 would be the basis, Commentary IV, op. cit (note 12), Article 5, p. 58.Google Scholar
60 This paragraph does not cover combatants who are denied prisoner-of-war status by application of paragraph 4 of Article 44 (i.e. members of the armed forces who do not comply with the minimum standards of distinction). The latter in fact continue to come within the scope of the procedural guarantees of the Third Convention, whereas the provision under consideration here concerns persons who are refused these guarantees.
61 See also the ICRC's commentary on the Draft Additional Protocols to the Geneva Conventions of August 12,1949 (October 1973), on draft Article 65 [Art.75 of PI]: “The purpose of this draft is to rectify an omission in the existing treaty law; on the one hand, persons who are not protected by the First, Second and Third Conventions are not necessarily always protected by the Fourth Convention, as is shown by its Article 4; on the other hand, Article 5 of the Fourth Convention relating to derogations is fairly difficult to interpret and appears to restrict unduly the rights of the persons protected.”, pp. 81 et seq.
62 “[T]he following acts are and shall remain prohibited at any time and in any place whatsoever (…) (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable (…)”
63 “The provisions of Articles 71 to 76 inclusive shall apply, by analogy, to proceedings against internees who are in the national territory of the Detaining Power.”
64 Bothe, Partsch and Solf, op. cit (note 17), pp. 261 et seq.
65 Commentary on Art. 45, in Sandoz, Y., Swinarski, Ch. and Zimmermann, B. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Martinus Nijhoff, Geneva, 1987Google Scholar, no. 1761. See also Commentary on Art. 51, in ibid., no. 1942.
66 See Greenwood, , op. cit (note 38), p. 316Google Scholar; Report on Terrorism and Human Rights, op. cit (note 5), para. 76; Aldrich, , op. cit (note 7), p. 893.Google Scholar
67 Report on Terrorism and Human Rights, op. cit (note 5), para. 74; Dinstein, Y., “The distinction between unlawful combatants and war criminals”, in Y. Dinstein (ed.), International Law at a Time of Perplexity, 1989, p. 112.Google Scholar
68 Ipsen, in Fleck (ed.), op. cit (note 36), p. 301; McCoubrey, , op. cit (note 36), p. 137Google Scholar; David, , op. cit (note 36), pp. 397Google Scholaret seq.; Bothe, Partsch and Solf, op. cit (note 17), pp. 261 et seq.; Aldrich, , op. cit (note 7), p. 893Google Scholar, footnote 12.
69 Schwarzenberger, G., International Law as applied by International Courts and Tribunals, Vol. II, Stevens, London, 1968, pp. 115Google Scholaret seq.; Draper, , op. cit (note 36), p. 197Google Scholar; Rosenblad, , op. cit (note 14), p. 98Google Scholar; Kalshoven, , op. cit (note 15), p. 71.Google Scholar
70 Rousseau, C., Le droit des conflits armés, A. Pedone, Paris, 1983, p. 68Google Scholar; Dinstein, , op. cit (note 67), p. 105Google Scholar; Commentary IV, op. cit (note 12), p. 50Google Scholar; Kalshoven, , op. cit (note 15), pp. 73Google Scholaret seq.
71 Dinstein, , op. cit (note 67), p. 114Google Scholar; Kalshoven, , op. cit (note 15), p. 73.Google Scholar
72 Baxter, , “Unprivileged Belligerency”, op. cit (note 37), p. 344.Google Scholar
73 Draper, , op. cit (note 36), pp. 197–198Google Scholar; Baxter, , “Unprivileged Belligerency”, op. cit (note 37), pp. 336, 337, 340Google Scholar; Baxter, , “Duties of Combatants”, op. cit (note 37), pp. 105Google Scholaret seq.; Schwarzenberger, , op. cit (note 69), pp. 115Google Scholaret seq.; Clarke, M.H.F., Glynn, T. and Rogers, A.P.V., “Combatant and Prisoner of War Status”, in Meyer, M.A. (ed.), Armed Conflict and the New Law: aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention, British Institute of International and Comparative Law, London, 1989, p. 125Google Scholar; Rousseau, , op. cit (note 70), p. 68Google Scholar; Dinstein, , op. cit (note 67), p. 112Google Scholar; Kalshoven, , op. cit (note 15), pp. 73Google Scholaret seq.
74 Dinstein, , op. cit (note 67), p. 112.Google Scholar
75 See Commentary on Art. 44, in Sandoz, Swinarski and Zimmermann (eds), op. cit (note 65), nos. 1721 et seq. (footnotes omitted):
“The Rapporteur explains this provision as follows:
‘Paragraph 5 is an important innovation developed within the Working Group. It would ensure that any combatant who is captured while not engaged in an attack or a military operation preparatory to an attack retains his rights as a combatant and a prisoner of war whether or not he may have violated in the past the rule of the second sentence of paragraph 3. This rule should, in many cases, cover the great majority of prisoners and will protect them from any efforts to find or to fabricate past histories to deprive them of their protection.’
Thus only a member of the armed forces captured in the act can be deprived of his status as a combatant and of his right to be a prisoner of war. For paragraph 4 to be applicable, it is necessary that the violation was par committed at the time of capture or directly before the capture. The link in time between violation and capture must be so close as to permit those making the capture to take note of it themselves. Thus this is a case of ‘flagrante delicto’. There is no doubt that this is, ‘mutatis mutandis,’ analogous to the situation of the spy, and consequently there is some relationship with the concept of an unprivileged belligerent. Like a spy, the combatant who does not carry his arms openly must be caught in the act for the sanction to be applicable to him. Similarly, like him, the combatant who is captured while he is not committing this breach, does not incur any responsibility for acts which he committed previously. However, it should be noted that in contrast to espionage, which is not prohibited by the law of armed conflict, but is merely made punishable, it is prohibited in the Protocol for a combatant not to carry his arms openly, and in principle the Protocol makes him responsible for this. However, in practical terms the adversary cannot do anything against him as a matter of criminal law unless he has surprised him ‘flagrante delicto’ at the moment of capture. The prohibition exists, but the sanction can only be applied under this condition. A combatant who commits this breach preserves, at least temporarily, his status as a combatant, and his right to prisoner-of-war status. If he is captured while he is not committing this breach, he is a prisoner of war and punishment can only be meted out in accordance with paragraph 2.”
76 Members of regular armed forces.
77 Members of militias and volunteer corps, including organized resistance movements, not included in the regular armed forces.
78 Members of regular armed forces of a non recognized government/authority.
79 Levée en masse.
80 For the different approaches in GC IV and PI see Commentary on Art. 50, in Sandoz, Swinarski and Zimmermann (eds), op. cit (note 65), no. 1908: “Article 4 of the fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War contains a definition of the persons protected by that Convention against arbitrary and wanton enemy action when they are in the power of the enemy; this is the main object of the Convention. However, Part II, entitled “General protection of populations against certain consequences of war” has a wider field of application; according to Article 13, that Part covers “the whole of the populations of the countries in conflict”. That definition is close to the definition of the civilian population given in Article 50 of the Protocol under consideration here.”
81 See Art. 51 (3) PI: “Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities” (emphasis added). Commentary on Art. 51, in Sandoz, Swinarski and Zimmermann (eds.), op. cit (note 65), no. 1944; Bothe, Partsch and Solf, op. cit (note 17), p. 301.
82 Art. 23 (c) 1907 Hague Regulations. See also ICRC, Rules Applicable in Guerrilla Warfare, op. cit (note 48), p. 19.Google Scholar
83 Art. 23 (d) 1907 Hague Regulations. See also ICRC, Rules Applicable in Guerrilla Warfare, op. cit (note 48), p. 19Google Scholar; Kalshoven, , op. cit (note 15), pp. 67Google Scholaret seq.