Seminar 3 – The Classification of Combatants
Y. Dinstein, ‘The Conduct of Hostilities under the Law of International Armed Conflict’ (Cambridge University
Press, 2016) 48-66 (available on UNLOC)
Entitlement to POW Status under Customary International Law
a) The Hague and Geneva Provisions and their Scope of Application
Hague Regulation 1 of 1907 proclaims:
The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps
fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war.
Hague Regulation 2 adds the Levee en masse provision, which reads in the revised 1907 edition:
The inhabitants of a territory which has not been occupied, who, on the approach of the enemy,
spontaneously take up arms to resist the invading troops without having had time to organize
themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly
and if they respect the laws and customs of war
Hague Regulation 3 decrees:
The armed forces of the belligerent parties may consist of combatants and non-combatants. In the
case of capture by the enemy, both have a right to be treated as prisoners of war.
Civilians who are not employed by the armed forces, yet accompany them are governed by Hague
Regulation 13, which stipulates:
Individuals who follow an army without directly belonging to it, such as newspaper correspondents
and reporters, sutlers and contractors, who fall into the enemy’s hands and whom the latter thinks
expedient to detain, are entitled to be treated as prisoners of war, provided they are in possession of a
certificate from the military authorities of the army which they were accompanying.
The Geneva Conventions retain the Hague formula, but make it more stringent. Article 4(A) of Geneva
Convention (III) 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.
(2) Members of other militias and members of other volunteer corps, including those of organized
resistance movements, belonging to a Party to the conflict and operating in or outside their own
territory, even if this territory is occupied, provided that such militias or volunteer corps, including
such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not
recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian
members of military aircraft crews, war correspondents, supply contractors, members of labour units
or of services responsible for the welfare of the armed forces, provided that they have received
authorization from the armed forces which they accompany, who shall provide them for that purpose
with an identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the
crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment
under any other provisions of international law.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up
arms to resist the invading forces, without having had time to form themselves into regular armed
units, provided they carry arms openly and respect the laws and customs of war.
This text is also replicated in Geneva Conventions (I) and (II). Article 4(b) GC (III) goes on to create
two further categories of people who should be recognised as POW – One relating to occupied
territories (members of armed forces released from detention in occupied territory and are then
reinterned), and the other relating to neutral countries (members of armed forces of Belligerent
Parties who reach neutral territory and have to be interned there under international law)
, First category of POW’s are regular members of the armed forces. Whether reservists, conscripts or
regular soldiers, not matter their role, they are regarded as regular armed forces of the state
Important exception in Article 4(C) GC (III) which states the article does not affect the status of
medical personnel and chaplains as provided for in Article 3 of the present Convention
Article 33 states that chaplains and medical personnel retained by the Detaining power with a view to
assisting POW, shall not be considered POW. They shall however, as a minimum receive the benefits of
the present Convention, and shall provide all facilities necessary to provide religious and medical care
of POW’s.
Medical and religious personnel therefore can be retained, but only to assist the treatment of POW’s.
If they refused to use their professional abilities, even for his own countrymen, will be detained as a
normal POW
The Hague and Geneva texts set out conditions for eligibility as POW. These apply only to the separate
category of persons who belong to irregular armed forces (e.g. guerrillas etc). Question is though
whether regular armed forces are absolved from meeting the same conditions
Was in issue in the Mohamed Ali case of 1968 where the PC held not enough to ascertain a person
belongs to regular armed forces, in order to guarantee him POW status. Even members of the armed
forces must observe the conditions imposed on irregular armed forces, despite the fact that this is not
stated in the Geneva Convention or Hague Regulations - The facts of the case related to Indonesian
soldiers who – at a time of a ‘confrontation’ between Indonesia and Malaysia – planted explosives in a
building in Singapore (then a part of Malaysia) while wearing civilian clothes. The Privy Council
confirmed the Appellants’ death sentence for murder on the ground that a regular soldier committing
an act of sabotage when not in uniform loses his entitlement to POW status.
Seems therefore presumption that regular armed forces do meet criteria of POW status, but this can
be rebutted
b) The Seven Hague and Geneva Conditions
Hague Regulation 1 (quoted supra 132) establishes four general conditions for lawful combatancy: (i)
subordination to responsible command; (ii) a fixed distinctive emblem; (iii) carrying arms openly; and
(iv) conduct in accordance with LOIAC.
(I) and (ii) are dispensed with for the special setting of levee en masse
Article 4(A)(2) GC (III) repeats these exactly, and includes that there are the additional conditions of
(v) organisation; and (vi) belonging to a Belligerent Party
One more condition is distilled in the case law from the text of the Geneva Conventions: (vii) lack of
duty of allegiance to the Detaining Power (see infra 150). There is every reason to believe that all
three additional conditions have also acquired a customary law standing. Each of the seven conditions
deserves an explanation.
Subordination
Requires subordination to a responsible commander. Designed to exclude individuals who are acting
independently during war. The operation of small units of irregular army forces in permissible
providing the other condition are fulfilled, but no room in IAC for acts of individuals
Fixed Distinctive Emblem
Conditions (ii) and (iii) above linked to cardinal principle of distinction between combatants and
civilians. Condition (ii) requires emblem must identify and characterize the force using it, and must
not carelessly change so as to confuse the enemy
Most obvious example is army uniform – not always required though – eg Special Forces often wear a
different outfit. Sufficient so long as clear they are not civilians.
Irregular armed forces need not wear any elaborate uniform – Sufficient it is marked by a less
complex fixed distinctive emblem – eg part of the clothing such as a special shirt, or badge, or
headgear.
Emblem must be worn by combatants throughout the military mission they are engaging in. It cannot
be deliberately removed at any time. But even regular armies do not require uniforms have to be
worn at all times – Combatants do not have to wear uniforms off duty, when they are working back-
office, or if they are operating remotely behind the conflict zone (defined as the front line). Main point
is that they are expected to be worn in combat
What is meant by a distinctive though and recognisable at distance? Combatants do not want to draw
attention to themselves, as to do so would put their lives at risk. Can use camouflage, as long as this
is not in the form of anything that might make them out to be a civilian, or put civilians at risk
Issue is not that combatants should be seen – just that they be distinguished from civilians
When combatants use vehicles, these too must also be identifiable. Does not absolve those inside
from wearing uniform however once they are separated from it.
Carrying Arms Openly
