¹ See text of the Protocols in the Final Act of the Conference, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974–1977, vol. I., pp. 115–198. All references to the Official Records (hereinafter OR) relate to the English text of the 17 volume collection, published by the Swiss Government. The texts of the Protocols also appear in Schindler, D. and Toman, J., The Laws of Armed Conflicts. A Collection of Conventions, Resolutions and Other Documents (2nd ed., 1981) 551–629Google Scholar (hereinafter referred to as Schindler and Toman). For the text of the four Geneva Conventions see (1950) 75 U.N.T.S. Nos. 970–973, and also Schindler and Toman, pp. 305, 333, 355 and 427.

² See list in Final Act, para. 2, OR, vol. 1, pp. 4–7.

³ At the opening of the debate on the invitation of national liberation movements, the Secretary-General of the Conference read out a list of 14 movements recognized by regional organizations: the PLO recognized by the League of Arab States, and 13 other movements recognized by the Organization of African Unity, CDDH/SR. 6 (Conférence Diplomatique sur la réaffirmation et le développement du droit international humanitaire applicable dans les conflits armés/Summary Record 6), 1 March 1974, para. 11, OR, vol. V, p. 56.

⁴ Res. 3(1). See text in OR, vol. 1, Part Two, p. 5. In accordance with the resolution, the statements made, as well as the proposals and amendments submitted by delegations of the national liberation movements, were to be circulated by the Conference Secretariat as Conference documents. The resolution was adopted by consensus on 1 March 1974. The representative of the United Kingdom stated that his delegation could not associate itself with the consensus. The resolution conferred greater rights than those enjoyed by non-state entities in the UN and greater rights than those which the UN itself or the regional organizations concerned enjoyed in the Conference. However, in a spirit of cooperation, the United Kingdom had not opposed the consensus. CDDH/SR. 7, 1 March 1974, para. 18, OR, vol. V, p. 67. Compare in this respect the Rules of Procedure, Ch. X: National Liberation Movements, and Ch. XI: Observers, OR, vol. II, pp. 15–16.

⁵ Final Act, para. 3, OR, vol. I, p. 7.

⁶ CDDH/SR. 57, 9 lune 1977, para. 31, OR, vol. VII, p. 257. The representatives of the United Kingdom and the United States explained their abstentions with reference to the signatures of the national liberation movements. Same meeting, paras. 32 and 33, pp. 258, 259, respectively. The delegation of Israel saw in the procedure adopted an unwarranted enhancement of the status of the PLO. Same meeting, paras. 21, 22, p. 256.

⁷ The following states are parties to Protocol I, in chronological order of ratification or accession: Ghana, Libya, El Salvador, Ecuador, Jordan, Botswana, Cyprus, Niger, Yugoslavia, Tunisia, Sweden, Mauritania, Gabon, Bahamas, Finland, Bangladesh, Laos, Viet Nam, Norway, Korea (Rep.), Switzerland, Mauritius, Zaire, Denmark, Austria, Saint Lucia, Cuba, Tanzania, United Arab Emirates, Mexico, Mozambique, Saint Vincent & Grenadines, China, Namibia, Congo, Syria, Bolivia, Costa Rica, Cameroon, Oman, Togo, Belize, Guinea, Central African Republic, Samoa, Angola, Seychelles, Rwanda, Kuweit, Vanuatu, Senegal, Comoros, Holy See, Uruguay and Surinam. Among these states. Cyprus, Viet Nam, Zaire, Cuba, Mexico, Mozambique, Syria and Angola are not Parties to Protocol II. See ICRC, INFO/DIF/1/Rev. 11, 8 Jan. 1986: Geneva Conventions of 12 August 1949 and Additional Protocols of 8 June 1977, signatures, ratifications, accessions and successions. When depositing her instrument of accession to Protocol II, France declared that she had no intention to accede to Protocol I for reasons indicated by her representative during the fourth session of the Conference, particularly because of the absence of consensus among the states signatories of Protocol I concerning the exact meaning (“portée”) of the obligations assumed by them in the matter of deterrence. (The reference is, apparently, to the statement made by the representative of France at the 56th Plenary meeting of 8 June 1977, OR, vol. VII, p. 192, para. 3). See ICRC/INFO/DIF No. 2/5, 25 January 1985/DM/DE: Textes officiels des réserves, déclarations et communications relatives aux Protocoles Additionnels de 1977, p. 11. According to press reports, the United States Joint Chiefs of Staff have recommended against US ratification of the Protocols. While the matter is still under review elsewhere in the Administration, the prevailing view among officials is that President Reagan is “highly unlikely” to recommend Senate ratification of the Protocols. The New York Times, 22 July 1985: “War Law Pact Faces Objection of Joint Chiefs”. See also The Washington Post, 23 July 1985: “Geneva Convention Changes Questioned. U.S. Fears Creation of Terrorist Safety Net”. And see below, pp. 274–275. As to the Soviet Union, it may be of interest to note that on 18 November 1985, during an official reception on the occasion of the summit meeting between President Reagan of the United States and Secretary-General Gorbachev of the Soviet Union, the President of Switzerland, Mr.Furgler, , expressed to Mr.Gorbachev, his wish that the Soviet Union ratify the Additional Protocols. Tribune de Genève, 19 November 1985Google Scholar. (The newspaper incorrectly refers to Mr. Furgler's “voeu de voir ľURSS signer les protocoles additionnels de CICR”. The Soviet Union signed the Protocols on 12 December 1977.)

⁸ In accordance with Art. 96 (3), a national liberation movement fighting against a Party to the Protocol may undertake to apply the Conventions and the Protocol by means of a unilateral declaration addressed to the depositary, with the effect that the Conventions and the Protocol are brought into force for the movement and the Party to the Protocol in relation to the particular conflict.

⁹ The only declaration claimed to be based on para. 3 of Art. 96 is one submitted in 1982 to the Swiss Government by the African National Congress (ANC). The Swiss Government did not transmit the declaration to the states Parties to the Conventions. Letter to the author, of 16 July 1985, from the International Legal Affairs Division of the Federal Department for Foreign Affairs. The attitude of the Swiss Government is understandable in view of the provision of para. 3, whereby the declaration by a national liberation movement is contingent upon the adverse party being a Party to the Protocol. South Africa is not a Party to the Protocol. The same principle is applicable as regards the PLO and Israel which is also not a Party to the Protocol.

¹⁰ See text in UN General Assembly, 25th session, Doc. A/RES/2625 (XXV); (1971) 65 Am. J. Int'l L. 243CrossRefGoogle Scholar. For analysis see R. Rosenstock, “The Declaration on Principles of International Law Concerning Friendly Relations: A Survey”, ibid., at 713–735.

¹¹ See Kalshoven, F., “Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Diplomatic Conference, Geneva, 1974–1977, Part I: Combatants and Civilians”, (1977) 8 NetherlandsYrbk. Int'l L. 121–122Google Scholar, and Bothe, M., Partsch, K.J. and Solf, W.A., New Rules for Victims of Armed Conflicts. Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (1982) 51, 52Google Scholar.

¹² See references in preceding note.

¹³ See Schindler, D., “The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols”, (1979) 163 Recueil des Cours de ľAcadémie de Droit International (RCADI) 138Google Scholar. The author mentions the case of Israel along with other cases in which “it is not clear or it is controversial” whether they fall under Art. 2 (2) of the Conventions, such as Namibia and Western Sahara.

¹⁴ For the analysis of the work of the Conference on this subject see, in particular, Rosas, A., The Legal Status of Prisoners of War (1976)Google Scholar; F. Kalshoven, op. cit. supra n. 11, 107–135; Lapidoth, R., “Qui a droit au statut de prisonnier de guerre?” (1978) 82 Revue Générale de Droit International Public (RGDIP) 170–210Google Scholar; Levie, H., Prisoners of War in International Armed Conflict, in International Law Studies (US Naval War College, vol. 59, 1978)Google Scholar; Mallison, W. Th. and Mallison, S.V., “The Juridical Status of Privileged Combatants under the Geneva Protocol of 1977 Concerning International Conflicts”, (1978) 42 L. & Contemp. Prob. 4–35CrossRefGoogle Scholar; Dinstein, Y., “The New Geneva Protocols: A Step Forward or Backward?”, (1979) Yrbk. World Affairs 265–283Google Scholar; Nahlik, S.E., “L'extension du statut de combattant à la lumière du Protocole I de Genève de 1977”, (1979) 164 RCADI 175–249Google Scholar; Rosenblad, E., International Humanitarian Law of Armed Conflict: Some Aspects of the Principle of Distinction and Related Problems (Henry Dunant Institute, Geneva, 1979)Google Scholar; Salmon, J.J.A., “Les guerres de libération nationale”, in Cassese, A. (ed.), The New Humanitarian Law of Armed Conflict (1979) 55–112Google Scholar. (The article was previously published in two parts in (1976) 12 Revue Belge de Droit International (RBDI) 27–52 and (1977) 13 ibid., 353–378.); Herczegh, G., “The Extension of the Notion of Combatant in the Light of the Geneva Protocols of 1977”, in ICRC, European Seminar on Humanitarian Law (Krakow, 1979 [1980]) 47–57Google Scholar; Aldrich, G., “New Life for the Laws of War”, (1981) 75 Am. J. Int'l L. 764–783CrossRefGoogle Scholar; Bothe, Partsch and Soif, op. cit. supra n. 11 at 232–272; Verri, P., “Combattants armés ne pouvant se distinguer de la population civile”, in Recueils de la Société Internationale de droit pénal militaire et droit de la guerre (Ninth International Congress, Lausanne, 1982) 345–392Google Scholar; Kussbach, E., “Le développement du statut des combattants et le droit international humanitaire”, (1983) 22 The Military Law and Law of War Review (MLLWR) 377–418Google Scholar; D.J. Feith, “Law in the Service of Terrorism: The Strange Case of the Additional Protocol”, paper presented at the April 1985 conference on terrorism sponsored by the Fletcher School of Law and Diplomacy at Tufts University. The proceedings of the conference have been published in Ra'anan, U. et al. (eds.), Hydra of Carnage: The International Linkages of Terrorism and Other Low-Intensity Operations; The Witnesses Speak (Lexington, Mass., Lexington Books, 1986)Google Scholar; Mr. Feith's paper appears as Chapter 17 under the title “International Responses”.

¹⁵ See text in Schindler and Toman, supra n. 1 at 69–87, particularly Arts. 1, 2 and 13.

¹⁶ See, in particular, Arts. 4 (partly quoted below), 33 and 85. The First and Second Conventions contain provisions (Art. 13) which are identical with some of the provisions on prisoners of war contained in Art. 4 of the Third Convention.

¹⁷ Since the Convention deals with prisoner-of-war status only, no mention is made of the status of combatants. That status is implied in each of the categories which have prisoner-of-war status, e.g. members of resistance movements. The category of members of organized resistance movements has been added, following the struggle of such movements against the German and Japanese occupations during the Second World War. The provision of para. 3 is also based on the experience of World War II, when regular forces of European states occupied by Germany continued to fight on behalf of Governments in exile not recognized by Germany. Art. 4 regulates, in addition, the status of persons who accompany the armed forces; members of crews of the merchant marine and civil aircraft; persons belonging to the armed forces of an occupied country and members of belligerent armed forces in neutral countries.

¹⁸ Dinstein, Y., Laws of War (Schocken, Tel Aviv, 1983, in Hebrew) 104Google Scholar.

¹⁹ See G.I.A.D. Draper, , “The Status of Combatants and the Question of Guerrilla Warfare”, (1971) 45 Brit. Yrbk. Int'l L. 196–197Google Scholar. Lt. Col. Y. Zinger, of the International Law Department, Judge Advocate General, Israel Defence Forces, gives the following reasons for Israel's refusal to grant prisoner-of-war status to PLO personnel captured in Lebanon during the operation “Peace for Galilee” launched in 1982: PLO personnel are not members of the armed forces of a state which is a Party to the conflict; they do not “cumulatively” fulfil all the four conditions; many were dressed in civilian clothes without any distinctive sign recognizable at a distance; the PLO does not conduct its operations in accordance with the laws and customs of war, being engaged in a persistent policy of indiscriminate attacks against the civilian populations of Israel and Lebanon, and against Jews, and Israelis, throughout the world. “Peace for Galilee: The Prisoners”, (1982) 2 IDF Journal 37–38Google Scholar. See also Meron, Th., “Some Legal Aspects of Arab Terrorists' Claims to Privileged Combatancy”, in Shoam, S. (ed.), Of Law and Man (1971) 225–268Google Scholar.

²⁰ According to Professor Draper, if the members of the group generally meet all the conditions all the time, and an individual member fails to comply with any of the last three conditions, such a member does not lose his combatant status, or his right to prisoner-of-war status, although he is liable to be tried for his breach of the law (op. cit. supra n. 19). Professor Levie, on the other hand, is of the opinion that the individual member must fulfil each of the four conditions in order to qualify for the status of prisoner of war (op. cit. supra n. 14 at 44–45). He refers in this connection to the case of the Military Prosecutor v. Kassem (1970), in which an Israeli military court interpreted the provisions of Article 4A(2) of the Third Geneva Convention as meaning “that to be entitled to treatment as a prisoner of war, a member of an underground organization on capture by enemy forces must clearly fulfil all the four above mentioned conditions and that the absence of any of them is sufficient to attach to him the character of a combatant not entitled to be regarded as a prisoner of war”. (1971) 42 I.L.R. 476.

It is clear from the judgment that the court considered this statement of principle as relating to members of a lawful armed group. The defendants in this case were members of the Popular Front for the Liberation of Palestine which, in the opinion of the court, was precluded from any possible claim to lawful belligerency because, in particular, the Front directed its attacks against civilian objectives and civilians, thus violating the basic requirement to conduct its operations in accordance with the laws and customs of war (pp. 479—483).

²¹ See Rosas, op. cit. supra n. 14 at 355–356, with the appropriate references. (The relevant provision of the FRG manual appears in ZDV 15/10, Kriegvölkerrecht, Leitfaden für den Unterricht (Teil 7), Allgemeine Bestimmungen des Kriegsführungrechts und Landkriegrecht (Bonn, 1961), para. 46). See also p. 312 where the author states that opinions differ on the question whether a combatant who has carried out a perfidious attack under civilian disguise loses his prisoner-of-war status, or whether he is merely liable to be tried as a prisoner of war for such a war crime.

²² See Draft Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of international Armed Conflicts, in OR, vol. 1, Part III, p. 3. The Draft Protocol was prepared by the ICRC in 1973, following a Conference of Government Experts which met in two sessions, in 1971 and 1972. See ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva, 24 May—12 June 1971), Report on the Work of the Conference (1971), and ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Second Session, (Geneva, 3 May—3 June 1972), Report on the Work of the Conference, 2 vols. (1972).

²³ ICRC, Draft Additional Protocols to the Geneva Conventions of August 12, 1949, Commentary (Geneva, 1973) 52Google Scholar.

²⁴ Rosas, op. cit. supra n. 14 at 268. See also the author's observation on the proposed distinction made during the preliminary stages of the Diplomatic Conference between (1) prisoner-of-war status; (2) prisoner-of-war treatment; and (3) treatment similar to that provided for prisoners of war. Ibid., at 292.

²⁵ The ICRC distinguished between the conditions which could only be fulfilled by the movement itself: organization, belonging to a Party to the conflict and command responsibility, and those which must be fulfilled by the movements and every one of their members: distinction from the civilian population and conduct in accordance with the Conventions and the Protocol. Commentary, 49, 50.

²⁶ ibid., at 50.

²⁷ CDDH/41, 12 March 1974, OR, vol. IV, p. 186.

²⁸ CDDH/III/259, 18 March 1975, OR, vol. III, p. 185.

²⁹ CDDH/III/73 and Add. 1, 21 March 1974, ibid., at 179.

³⁰ CDDH/III/209, 21 Feb. 1975, ibid., at 182.

³¹ CDDH/III/258 and Add. 1, 18 March 1975, ibid., at 185.

³² CDDH/III/256, 18 March 1975, ibid., at 183.

³³ CDDH/III/257, 18 March 1975, ibid., at 184.

³⁴ Bothe, Partscli and Solf, op. cit. supra n. 11 at 235.

³⁵ Ibid., at 239 and 262. By virtue of Art. 47, mercenaries, who by definition are not members of the armed forces of a Party to the conflict, have no right to be combatants or prisoners of war.

³⁶ See p. 246 and nn. 8 and 9.

³⁷ Bothe, Partsch and Solf, op. cit. supra n. 11 at 238.

³⁸ In the view of the DRV, all US prisoners were war criminals who were not entitled to prisoner-of-war status under the DRV reservation to Art. 85 of the Third Convention. (Ibid., at 250). The reservation states that prisoners of war prosecuted and sentenced for war crimes or crimes against humanity shall not be given the benefit of the provisions of the Convention. See Pilloud, C., “Reservations to the Geneva Conventions of 1949 (II)”, (April, 1976), IRRC, 174Google Scholar.

³⁹ CDDH/SR. 39, 25 May 1977, Annex, OR, vol. VI, p. 116.

⁴⁰ See Bothe, Partsch and Soif, op. cit. supra n. 11 at 248. The representative of Algeria stated that “the particularly active part played by those two men in the group which had drafted the final wording of the article was in itself a symbol of genuine cooperation…” CDDH/SR. 40, 26 May 1977, para. 43, OR. vol. VI, p. 127. It will be noted that, during the fourth session, Mr. Van Luu became the head of the delegation of the unified state named the Socialist Republic of Viet Nam. See OR, vol. II, pp. 332, 333.

⁴¹ CDDH/III/SR. 55, 22 April 1977, para. 3, OR, vol. XV, p. 155.

⁴² CDDH/SR. 40, 26 May 1977, para. 15, OR, vol. VI, p. 121. The abstaining states were: Argentina, Australia, Brazil, Canada, Chile, Colombia, Federal Republic of Germany, Guatemala, Honduras, Italy, Ireland, Japan, Nicaragua, New Zealand, Philippines, Portugal, Spain, Switzerland, Thailand, United Kingdom and Uruguay.

⁴³ CDDH/236/Rev. 1, para. 86, OR, vol. XV, p. 402.

⁴⁴ On the compatability of Art. 44 (2) with the reservations of socialist states to Art. 85 of the Third Convention, see Bothe, Partsch and Soif, op. cit. supra n. 11 at 250.

⁴⁵ CDDH/407/Rev. 1, para. 19, OR, vol. XV, p. 453.

⁴⁶ As to the meaning of the phrase “military operations preparatory to an attack”, the view has been expressed that, in order to re-enforce the protection of the civilian population, the phrase should be given the widest interpretation possible, to include all logistic activities. See Verri, op. cit. supra n. 14 at 361.

⁴⁷ See next subsection.

⁴⁸ As the provision is directed to combatants assigned to the “regular, uniformed units” of a Party to the conflict, Committee III made it olear in its 1976 report that regular soldiers who are assigned to tasks where they must wear civilian clothes, as in the case of advisers assigned to resistance units, are not required to wear their uniform. CDDH/236/Rev. 1, para. 84, OR, vol. XV, p. 401.

⁴⁹ See Green, L.C., “The New Law of Armed Conflict”, (1977) Can. Yrbk. Int'l L. 14Google Scholar. See also the criticism of General Pietro Verri of the International Institute of Humanitarian Law, supra n. 14 at 369.

⁵⁰ This was the opinion of the participants of the 9th Round Table on Current Problems of International Law (San Remo, September, 1983), as summed up in a report on the discussions prepared by Mr. W. Hays Parks, Chief, International Law, Office of the Judge Advocate General of the United States Army. I am grateful to Mr. Parks for providing me with a copy of the report. The former U.S. Judge Advocate General, Major General (ret.) George S. Prugh, voiced the opinion that, regardless of para. 7, “the minimum ‘uniform’ is now the carrying of arms openly”; what is acceptable for one portion of the combatants must be equally acceptable to the adversaries. He saw no reason why regular forces could not be casually dressed, so long as ihey carry their arms openly, as, for example, in the case of a long range patrol operating behind enemy lines. Recueils de la Société Internationale, supra n. 14 at 399. Cf. Bothe, Partsch and Soif, op. cit. supra n. 11 at 252–253.

⁵¹ Op. cit. supra n. 14 at 198–199.

⁵² See Recueils de la Société Internationale, supra n. 14 at 219.

⁵³ CDDH/407/Rev. 1, para. 19, OR, vol. XV, p. 453.

⁵⁴ See Kalshoven, op. cit. supra n. 11 at 126–127.

⁵⁵ CDDH/407/Rev. 1, para. 19, OR, vol. XV, p. 453.

⁵⁶ Aldrich, op. cit. supra n. 14 at 773.

⁵⁷ CDDH/SR. 41, para. 45, OR, vol. VI, p. 150.

⁵⁸ See Bothe, Partsch and Soif, op. cit. supra n. 11 at 253.

⁵⁹ CDDH/III/SR. 55, 22 April 1977, paras. 17 and 24, OR, vol. XV, pp. 158, 159.

⁶⁰ CDDH/III, SR. 56, 22 April 1977, para. 28, OR, vol. XV, p. 174.

⁶¹ Same meeting, para. 67, p. 182. For a similar construction see statements of the representatives of the Federal Republic of Germany (CDDH/III/SR. 55, 22 April 1977, para. 63, OR, vol. XV, p. 166), of the Netherlands (CDDH/III/SR. 56, 22 April 1977, para. 14, OR, vol. XV, p. 171) and of New Zealand (same meeting, para. 83, p. 186).

⁶² CDDH/SR. 41, 26 May 1977, para. 56, OR, vol. VI, p. 153.

⁶³ Same meeting, para. 19, pp. 144–145.

⁶⁴ Op cit., supra n. 11 at 128.

⁶⁵ Feuille fédérale, No. 14, vol. I, 14 April 1981, para. 211.422, p. 1014. I wish to thank Mr. Bruno Zimmermann of the Legal Department of the ICRC for drawing my attention to the Message.

⁶⁶ Sec mimeographed paper (undated), containing answers to a number of criticisms voiced against Protocol I. I am grateful to the ICRC for having provided me with a copy of the paper.

⁶⁷ See Bothe, Partsch and Solf, op, cit. supra n. 11 at 721, 722. The same version was used by the Republic of Korea in a declaration submitted at the moment of ratification of the Protocol. See ICRC, Département de ľinformation, INFO/DIF No. 2/5, 25.1.85/DM/DE, pp. 9 and 21.

⁶⁸ CDDH/III/SR. 55, 22 April 1977, para. 13, OR, vol. XV, p. 157. For his part, the representative of the United States stated, with regard to the above definition of “deployment”, that combatants must distinguish themselves from civilians during the phase of the military operation which involved “moving to the position from which the attack would be launched”. CDDH/III/SR. 56, 22 April 1977, para. 54, OR, vol. XV, p. 179.

⁶⁹ CDDH/III/SR. 53, 10 June 1976, para. 21, OR, vol. XV, p. 138.

⁷⁰ CDDH/III/SR. 55, 22 April 1977, para. 29, OR, vol. XV, p. 160.

⁷¹ CDDH/SR. 41, 26 May 1977, para. 31, OR, vol. VI, p. 148.

⁷² CDDH/III/SR. 55, 22 April 1977, para. 55, OR, vol. XV, p. 165.

⁷³ Same meeting, para. 13, p. 157.

⁷⁴ Same meeting, para. 30, p. 160 (Egypt) and CDDH/III/SR. 56, 22 April 1977, para. 73, OR, vol. XV, p. 184 (PLO).

⁷⁵ See Recueils de la Société Internationale, supra n. 14 at 218. See also Dinstein, op. cit. supra n. 14 at 271–272: “The net result of Art. 44 is that a guerrilla may lose himself in a crowd of civilians, keep his weapons concealed until the last conceivable moment, then violate with impunity all the rules of warfare, and still maintain his right to be a prisoner of war”.

⁷⁶ CDDH/236/Rcv. 1, para. 90, OR, vol. XV, p. 403.

⁷⁷ CDDH/SR. 41, 26 May 1977, para. 56, OR, vol. VI, p. 153.

⁷⁸ Same meeting, para. 9, p. 143.

⁷⁹ CDDH/III/SR. 56, 22 April 1977, para. 7, OR, vol. XV, p. 170.

⁸⁰ Same meeting, para. 85, p. 186.

⁸¹ CDDH/SR. 40, 26 May 1977, para. 52, OR, vol. VI, p. 128.

⁸² Same meeting, para. 74, p. 132, and SR. 41, 26 May 1977, para. 24, OR, vol. VI, p. 146, respectively.

⁸³ CDDH/SR. 40, 26 May 1977, para. 26, OR, vol. VI, p. 122.

⁸⁴ CDDH/407/Rev. 1, para. 19, OR, vol. XV, p. 453.

⁸⁵ CDDH/236/Rev. 1, para. 91, OR, vol. XV, p. 403.

⁸⁶ CDDH/III/SR. 55, 22 April 1977, para. 37, OR, vol. XV, p. 161.

⁸⁷ CDDH/SR. 41, 26 May 1977, para. 27, OR, vol. VI, p. 147.

⁸⁸ CDDH/III/SR. 55, 22 April 1977, para. 18, OR, vol. XV, p. 158.

⁸⁹ CDDH/SR. 41, 26 May 1977, para. 9, OR, vol. VI, p. 143.

⁹⁰ CDDH/SR. 40, 26 May 1977, para. 39, OR, vol. VI, p. 126.

⁹¹ CDDH/SR. 40, 26 May 1977, Annex, OR, vol. VI, p. 137.

⁹² CDDH/SR. 40, 26 May 1977, para. 68, OR, vol. VI, p. 130.

⁹³ Same meeting, para. 33, p. 124.

⁹⁴ CDDH/SR. 41, 26 May 1977, para. 51, OR, vol. VI, p. 152. See E. Rosenblad, who considers that the minimum requirement under subparagraphs (a) and (b) of para. 3 is defective since it fails to ensure the necessary distinction between combatants and the civilian population. In his view, Art. 44 might, in this respect, prove to be “a retrogate step on the road towards reaffirming and developing international humanitarian law of armed conflict”. Op. cit. supra n. 14 at 96–7.

⁹⁵ CDDH/SR. 41, 26 May 1977, para. 43, OR, vol. VI, p. 149.

⁹⁶ See Hydra of Carnage, supra n. 14 at 280; cf. ibid., at 276.

^96a See above, n. 7, especially the newspaper articles referred to.

⁹⁷ See Bothe, Partsch and Soif, op. cit. supra n. 11 at 260.

⁹⁸ The delegation of Israel declared that the obligation to determine the status of the person by a tribunal arises only in cases where an objective doubt exists. If it is evident that the person is not entitled to prisoner-of-war status, the presumption was invalidated ab initio. CDDH/SR. 41, 26 May 1977, Annex, OR, vol. VI, p. 189.

The Supreme Court of Israel, sitting in its capacity of High Court of Justice, held in the case of Zemel v. Minister of Defence et al., that the application of the provision in Art. 5 of the Third Geneva Convention regarding the determination of status, is contingent on proof of circumstances raising doubt. (1983) 37 (iii) P.D. 365, 371. See also Jabber et al., v. Mililary Commander for Judea and Samaria Region et al., where the same Court, sitting as High Court of Justice, held that from the point of view of international law a military court charged with trying persons accused of criminal acts may itself rule on any preliminary claim by the accused that they are entitled to prisoner-of-war status. (1981) 35 (iv) P.D. 397, 400–1.

⁹⁹ See statement to that effect by the representative of Israel, CDDH/SR. 36, 23 May 1977, para. 61, OR, vol. VI, p. 42.

¹⁰⁰ CDDH/I/42, 14 March 1974, OR, vol. III, p. 8.

¹⁰¹ See Salmon, op. cit. supra n. 14 at 84.

¹⁰² At its 26th session of February-March 1976, the Council of Ministers of the OAU failed to accord recognition to the Polisario Front, which has been struggling against Morocco (and originally also against Mauritania) for the independence of Western Sahara. 17 states voted in favour, 9 against, and 21 abstained. In 1980, the Saharan Arab Democratic Republic (SADR), proclaimed by the Polisario in 1976, applied for admission to the OAU. SADR obtained the approval of a simple majority of members as required by Art. 28 of the OAU Charter. 26 out of the 50 members communicated their agreement to the Secretary-General of the OAU, whereupon the Secretary-General announced the admission of SADR. However, many OAU states objected to the participation of SADR's delegations at meetings of OAU bodies, on the grounds that SADR was not an independent sovereign state and its admission was therefore invalid. These states requested, unsuccessfully it appears, an interpretation of the Charter of the OAU in accordance with Art. 27, which requires a two-lthirds majority (See Jouve, Edmond, L'Organisation de ľUnité Africaine (Paris, 1984) 140–152.)Google Scholar On 12 November 1984, when the 20th Assembly of Heads of State and Government of the OAU met in Addis Ababa, Morocco announced its withdrawal from membership of the OAU to protest the participation (after a period of voluntary abstention) of a delegation from SADR, . (See Keesing's Contemporary Archives, vol. XXXI, 1985, p. 33325Google Scholar.)

¹⁰³ See Abi-Saab, G., “Wars of National Liberation in the Geneva Conventions and Protocols”, (1979) 165 RCADI 408Google Scholar. The Eritrean People's Liberation Front (EPLF) is the strongest of the various Eritrean liberation movements fighting against Ethiopia—an influential OAU member—and claims to control 85 percent of Eritrea. See Keesing's Contemporary Archives, vol. XXXI, 1985, p. 33383.

¹⁰⁴ Cuba voted in favour of the provision of Art. 1 (4) on the understanding that the text referred not only to national liberation movements present at the Conference and those recognized by the OAU and the League of Arab States, but also to others, such as the “Puerto Rico liberation group”. CDDH/I/SR. 14, 25 March 1974, para. 4, OR, vol. VIII, p. 105.

¹⁰⁵ Obviously with the IRA in mind, the United Kingdom appended, on signature of the Protocol, the following “understanding” relating to the entry into force of the Geneva Conventions and Protocol I for national liberation movements (see above, n. 8):

“(h)…that only a declaration made by an authority which genuinely fulfills the criteria of para. 4 of Art. 1 can have the effects stated in para. 3 of Art. 96, and that, in the light of the negotiating history, it is to be regarded as necessary also that the authority concerned be recognized as such by the appropriate regional intergovernmental organization”. Bothe, Partsch and Soif, op. cit. supra n. 11 at 722.

¹⁰⁶ Ibid., at 721. The threshold for the application of Protocol II is relatively high. In accordance with its Art. 1, the Protocol applies to armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”. By virtue of the above “understanding” and the “understanding” mentioned in the preceding note regarding the necessity of recognition of national liberation movements by appropriate regional organizations, the United Kingdom has effectively excluded the application of the Conventions and the Protocol in its relations with the Irish Republican Army.

¹⁰⁷ See Verri, op. cit. supra n. 14 at 355.

¹⁰⁸ ibid., at 363–365.

¹⁰⁹ The Netherlands report to the Ninth International Congress of the International Society of Military Penal Law and Law of War states that the exceptional circumstances could occur only in very rare cases, when the combatants involved are in the process of organizing themselves as combatant units, and when, due to a momentary lack of supplies, the leaders of these combatants “are unable to issue the required uniform items to their men so as to have them to wear a fixed distinctive sign recognizable at a distance”. According to the Turkish report, a combatant cannot distinguish himself only when participating in a defensive military operation, whereas the lack of distinction during an offensive would constitute an act of perfidy. Recueils de la Société Internationale, supra n. 14 at 194 and 272 respectively.

¹¹⁰ See Report of the United Stales Delegation to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Fourth Session, Geneva, Switzerland, March 17—June 10, 1977. Submitted to the Secretary of State by George Aldrich, Chairman of the Delegation, September 8, 1977 (unpublished), p. 30. I wish to thank the staff of the Alderman Library of the University of Virginia for their assistance in obtaining this and other reports of the United States delegation to the Conference.

¹¹¹ CDDH/SR. 41, 26 May 1977, paras. 45 and 56, OR, vol. VI, pp. 150 and 153 respectively.

¹¹² See above, p. 270.

¹¹³ See ICRC, INFO/DIF No. 2/5, 25.01.85/DM/DE, p. 3.

¹¹⁴ See Zinger, op. cit. supra n. 19 and “Communication” by Colonel Zvi Hadar regarding the “Israeli prevailing practical approach towards unprotected and irregular combatants, terrorists and saboteurs”, in (1972) 11 MLLWR 148–151. See also O'Brien, W.V., “The PLO in International Law”, (1984) 3 B.U. Int'l L.J. 404–405Google Scholar; and ICRC, Annual Report 1984, pp. 66–67.