population in order to resist invading armed forces. This uprising is not prohibited by the law of armed conflict. "[T]he first duty of a citizen is to defend his country, and provided he does so loyally he should not be treated as a marauder or criminal."14 A levée en masse need not be organized, under command, or wear a distinctive sign. However, members must carry arms openly and comply with the law of armed conflict. To be a lawful levée en masse, it must be a spontaneous response by inhabitants of a territory not under occupation to an invading armed force. Spontaneity requires that there ibe no time to organize into regular armed t forces. Members of a levée en masse generally have the rights and incur the obligations and liabilities of other lawful combatants.

13-3. Unlawful Combatants:

a. Explained. 15 An unlawful combatant is an individual who is not authorized to take a direct part in hostilities but does. The term is frequently used also to refer to otherwise ¡ privileged combatants who do not comply : with requirements as to mode of dress, or noncombatants in the armed forces who improperly use their protected status as a shield to engage in hostilities. "Unlawful : combatants" is a term used to describe only their lack of standing to engage in hostilities, not whether a violation of the law of armed conflict occurred or criminal responsibility accrued.

b. Effect during conflict. 16 Unlawful combatants are a proper object of attack while engaging as combatants and thus may be killed or wounded directly in conflict. If captured, they may be tried and punished, subject to the relevant protective guarantees 1 of the 1949 GC, for directly taking part in : hostilities when not entitled to do so. c. Entitlement to PW status. (1) Treaty provision.

The present Convention shall apply to the persons referred to in Article 4 [GPW] from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether

persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. 17

(2) Discussion. 18 Upon capture any person, who does not appear to be entitled to PW status, but who had committed a belligerent act is required to be treated as a PW until his status is properly determined. If found not entitled to PW status, he may not be executed, imprisoned or otherwise penalized without further judicial proceedings to determine what acts he has committed and what penalty should be imposed. If entitled to PW status, his condition is governed by applicable provisions of the GPW Convention.

3-4. Noncombatants:

a. Term Explained. 19 The term noncombatants includes a wide variety of disparate persons. For example, it has been used to describe civilians (who are not otherwise lawful or unlawful combatants), combatants who are hors de combat (PWs and wounded and sick), members of the armed forces enjoying a special status (chaplains, medics), and civilians accompanying the armed forces. The law of armed conflict, while adopting different guarantees applicable to these persons and different obligations and duties incumbent upon them, rests on the basic distinction between combatants and noncombatants as to who are proper objects of attack as such. Clearly, noncombatants, in all categories, share the risks and rigors of war. Civilians (aside from those referenced in Article 4A, GPW) are discussed separately since they are the largest category of noncombatants.

b. Civilians Accompanying the Armed Forces. 20 One category of persons who are not combatants in the sense that they oppose an adversary with arms in hand, but who are entitled to PW status, are civilian members of military aircraft crews, supply

contractor personnel, technical representatives of government contractors, war correspondents, and members of labor units or civilian services responsible for the welfare of armed forces. They must receive authorization from the armed forces which they accompany and be provided with an appropriate identity card. Although noncombatants when not taking a direct part in hostilities, they are assimilated to combatants in that they are subject to capture and treatment as PWs.

c. Noncombatant Military. These members of the armed forces are classified as noncombatants because of their status as medical personnel, chaplains, or personnel employed in specific medical functions. In addition to medical facilities and transports, they have specific protections under the 1949 Geneva Conventions. If they directly engage in hostilities themselves under the cloak of their protectd medical function, they commit serious violations of the law of armed conflict. They may not be made prisoners of war, but may be retained to perform work within their specialty. For effective protection medical personnel may wear, on the left arm, a water resistant armlet bearing the distinctive emblem (red cross), issued and stamped by military authority, and possess a special identity card bearing the distinctive emblem.

d. Hors de Combat Personnel. 22 Combatant personnel who have been placed out of combat by sickness, wounds, or other causes including confinement as prisoners of war are one of the most important categories of persons, aside from civilians, protected under both customary and very specific treaty law during armed conflict. The principles and rules protecting such persons are among those most crucial to the law of armed conflict and its effective observance. Their protected status requires them not to abuse that status by engaging in acts of

perfidy or by using their protection as a cloak of immunity to engage in hostilities. One of the important principles relating to wounded and sick requires medical care and humane treatment to friend and foe without distinction founded on sex, race, nationality, religion, political opinions or similar criteria.

3-5.

Civilians. 23 Civilians are all persons other than those mentioned as combatants in Article 4(A)(1), (2), (3) and (6), Geneva Convention for the Protection of Prisoners of War (GPW). Civilians are generally protected under the law of armed conflict in various ways as discussed later and are specifically protected under the 1949 Geneva Convention Relative to the Protection of Civilians In Time of War (GC). Certain civilians are also protected under the 1949 GPW. Since World War I, several trends have tended to blur the distinctions between combatants and noncombatants including civilians, resulting in less effective protection. These include: (a) growth of the number and kind of combatants, including irregular armed forces, guerrillas, and organized resistance movements; (b) growth of noncombatants engaged in activities directly supporting the war effort including armament production; (c) the rise of totalitarian states such as Nazi Germany; (d) the development of new weapons systems including aircraft and missiles which extend the struggle beyond the immediate battlefield; and (e) the failure of states engaged in conflicts to separate military and civilian activities to enhance effective protection of civilians. However, the distinctions remain vital-and were strongly reinforced by the 1949 Geneva Conventions and subsequent international developments. They are undergoing continual reinforcement. It is incumbent on all parties to a conflict to reinforce the distinctions.

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The term "belligerents" is used frequently to describe both the Parties to a conflict and the actual combatants therein. The distinction between combatants and noncombatants is drawn, for example, in Hague IV and HR; Articles 13 and 14, GWS; Articles 13 and 16, GWS-SEA; Article 4, GPW; and Article 4, GC.

? Uniform requirements-see chapter 7. Marking requirements of aircraft, see chapter 7.

3 Articles 4A(1) and (3), GPW; Greenspan, Modern Law of Land Warfare 58 (1959) [herein Greenspan]; Mc Dougal and Feliciano, Law and Minimum World Public Order 544 (1961) [herein Mc Dougal].

2 Oppenheim's International Law 255 (Lauterpacht ed. 1952). Municipal law is the domestic or internal law of a nation. Switzerland's regular army is composed almost entirely of militia corps.

Article 1, HR; Article 13(1), GWS; Article 13(1), GWS-SEA; Article 4A(1), GPW.

Article 4A(2), GPW; Article 1, HR; Article 13(2), GWS; and Article 13(2), GWS-SEA. Although disputed, in the view of the US and others, these provisions also determine who is lawful combatant and entitled to the protections thereof. It has been asserted that irregular combatants who do not meet hese requirements are "war criminals" and equally strongly asserted that they are simply unprivileged belligerents. It is clear that they are not entitled to PW status and are subject to prosecution, subject to elevant protective guarantees, for engaging in hosilities. They may indeed be guilty of grave breaches of the 1949 Geneva Conventions and bear the esponsibility therefore. For discussion, see Paust, "My Lai and Vietnam; Norms, Myths and Leader Responsibility," 57 Mil. L. Rev. 99 (1972) (there are wo myths concerning guerrilla warfare that must be exposed: one that it is new and second that the guerrilla need not comply with the law); Baxter, 'So Called Unprivileged Belligerency: Spies, Guerillas, and Saboteurs," 1951 British Y. B. Int'l. L. =22 (1952); Mc Dougal 554; 2 Oppenheim, supra note 4, at 257. Chapter 9, this publication, discusses other unprivileged participants.

The problems of guerrilla warfare and unlawful combatants (or unprivileged belligerency), as well as offenses committed aside from not being in uniform re old problems. See authorities, supra note 6, and Cowles, "Universality of Jurisdiction over War Crimes," 33 Calif. L. Rev. 177 (1945); Garner, · General Order No. 100 Revisited," 27 Mil. L. Rev. 1, at 17 (1965).

a See authorities and discussion, supra paragraph -5c. Generally, terrorist groups which may operate r attempt to function in countries which are not a Party to an armed conflict do not raise issues under

the law of armed conflict. This is true for several reasons. First, there is no relevant international armed conflict (see paragraphs 1-5 and 1-5d.), and second, such groups do not meet the objective requirements required for PW status.

8 Although expressly required of irregular armed forces, they are obviously required of regular armed forces as well. Requirements (a), (b), (c) and (d) were also contained in Article 1, HR. They are discussed in US Army, FM 27-10, Law of Land Warfare 27-28 (1956) [herein FM 27-10]. See also Greenspan 59; 2 Oppenheim, supra note 4, at 257; British Manual of Military Law, Part III (The Law of Land Warfare), at para 94 (1958); Mc Dougal 85. The Geneva Convention standards expressed are applicable to combatants in all environments. The French text, "appartenant à ... une Partie au conflit," suggests a looser connection than might be inferred from "belong."

9 Article 1, Hague IV; Article 47, GWS; Article 48, GWS-SEA; Article 127, GPW; Article 144, GC.

10 British Manual, supra note 8, paragraph 95; FM 27-10, at 28.

11 See authorities supra notes 6 and 8. 12 Greenspan 60.

13 Article 4A(6), GPW; Article 13(6), GWS; Article 13(6), GWS-SEA; Article 2, HR. For discussion, see Greenspan 62; 2 Oppenheim, supra note 4, at 257; FM 27-10, at 28; McDougal 546; Stone, Legal Controls of International Conflict 550 (1973). 14 British Manual, supra note 8, at paragraph 30 (chapter 14).

15 Authorities supra notes 6 and 8. "Unlawful combatants" describes persons who do not meet the legal requirements of combatant status (Article 4A(1), (2), (3), (6), GPW). The question of whether there is a violation of the law of armed conflict, and criminal responsibility for such violation are separate questions apart from the issue of nonprivileged status under the law of armed conflict. Chapters 7, 8, and 9 are all relevant, as are chapters 13 and 14. For example, the use of spies including military personnel out of uniform is clearly not a violation of the law of armed conflict although those captured may be prosecuted under state law because they are unprivileged, i.e., not entitled to PW status.

When an airman is downed, he is entitled not to be attacked by irregular combatants (civilians), although they may be authorized to use minimum force to capture him. If attacked, he is entitled to defend himself. If the downed airman attacks the civilians, they are entitled to defend themselves. Spaight, Air Power and War Rights 231 (1947).

16 On rules applicable to aerial bombardment, see

chapter 5. Authority to detain civilians is in Article 5, GC, discussed chapter 14, this publication.

17 Article 5, GPW.

18 For discussion, see FM 27-10, at 30-31 and chapters 13 and 14, this publication. A person found by a tribunal under Article 5, GPW, not to be entitled to PW status is not precluded from raising the issue of his status before the court-martial or military tribunal considering his case.

19 The term noncombatants has been generally avoided elsewhere in this publication because of the different legal framework applicable to different categories of noncombatants. For example, GWS and GWS-SEA protect wounded, sick and shipwrecked as well as facilities and personnel to care for them. GPW protects prisoners; numerous sources of law including 1949 GC protect civilians. 20 GPW, Article 4A(4). For discussion, see McDougal 545. On protection of journalists, see recent UN practice.

21 Medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded and sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected in all circumstances. (Art 24, GWS).

Members of the armed forces specially trained for employment, should the need arise, as hospital orderlies, nurses or auxiliary stretcherbearers, in the search for or the collection, transport or treatment of the wounded and sick shall likewise be respected and protected if they are carrying out these duties at the time when they come into contact with the enemy or fall into his hands. (Art 25, GWS).

Articles 26 and 27 extend protections to the staff of National Red Cross Societies, other Voluntary Aid Societies including recognized societies of neutral countries. See also chapter 12, this publication, which discusses GWS and GWS-SEA. Chapter 8 discusses misuse of the medical function. Note that some other categories of military personnel such as veterinarians and even clerks are sometimes termed noncombatants although they enjoy no specific protected status.

22 For example:

... it is especially forbidden-To kill or wound an enemy who, having laid down his arms, or no longer having means of defence, has surrendered at discretion. (Article 23c, HR). Members of the armed forces and other persons . . . [Article 4, GPW], who are wounded or sick, shall be

respected and protected in all circumstances. (Article 12(1), GWS).

Members of the armed forces and other persons

.. [Article 4, GPW], who are at sea and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances, it being understood that the term "shipwreck" means shipwreck from any cause and includes forced landings at sea by or from aircraft. (Art 12, GWS-SEA) (emphasis added). Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. (Art 12(1), GPW). Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health. . . is prohibited, and will be regarded as a serious breach ... (Art 13(1), GPW).

Likewise prisoners must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. (Art 13(2), GPW).

The obligations toward wounded and sick are discussed in chapter 12; PWs in chapter 13. For application of the hors de combat principle in the air to air, and air to sea environment, see chapter 4; for aerial bombardment, see chapter 5. The hors de combat principle also applies to armed conflict not of an international character. (Article 3, common to the 1949 Geneva Conventions, discussed chapter 11, this publication and Bond, Rules of Riot (1974)). 23 For additional discussion, see chapters 5 and 11. For historical factors see Bailey, Prohibitions and Restraints in War (1972); British Manual, supra note 8, at 30; Mc Dougal 530; Oppenheim, supra note 4, at 207; Stone, supra note 13, at 627-631; 2 Schwarzenberger, International Law, International Courts, The Law of Armed Conflict 110, 139 (1968); 10 Whiteman, Digest of International Law 134-135 (1968); Gutteridge, "The Geneva Conventions of 1949, 26 Brit. Y. B. Int'l. L. 319 (1949); Nurich. "The Distinction Between Combatant and Noncombatant in the Law of War," 39 Am. J. Int'l. L. 680 (1945). On recent developments, see Dinstein, "Another Step in Codifying The Laws of War," and Schwarzenberger, "The Law of Armed Conflict," 1974 Yearbook of World Affairs at 278, 293 (1974); Baxter, "Perspective: the Evolving Laws of Armed Conflicts," 60 Mil. L. Rev. 99 (1973): Draper, "Human Rights and The Law of War," 12 Va. J. Int'l. L. 326 (1972); Hewitt, "Respect for Human Rights in Armed Conflict," 4 N.Y.U. J. Int'l. L. and Politics 41 (1971).