36. The remaining members of the Committee, reinforced by the advice of the representative of the Legal Department of the Foreign Office, felt that circumstances might arise where the proposed provision regarding civil war (see paragraph 34(a) above) could be brought into effect by de facto consents given to a third party (e.g. the International Red Cross Committee) without the lawful Government having to give any formal recognition as belligerents to the insurgents.
(See also paragraphs 37 to 41 below regarding application of the
Conventions to irregular combatants).
37. Should Partisans be covered by the Prisoners of War and Red Cross Conventions? The persons to be covered by the Prisoners of War and Red Cross Conventions are considered in Part III (paragraphs 225 to 229 below), except in the case of "Partisans". At the 1947 Geneva Conference of Governmen Experts there was. strong pressure from delegations representing countries occupied during the Second World War to give the full protection of the Prisoners of War and Red Cross Conventions to members of "resistance" movement or, as they were called at the Conference, "Partisans". My Committee use. this term broadly to cover
(a) irregular combatants;
(b) members of a military organisation to resist an Occupying
Power;
and (o) members of a Home Guard or similar organisation.
We include the Home Guard because it consisted of persons who were part-time soldiers and part-time civilians, and it would therefore be difficult to claim them as "military" unless the principle referred to in paragraph 40 below be modified.
38. The question proved insoluble at the 1947 Geneva Conference of Government Experts. Mr. H.J. Phillimore (one of the War Office represent- atives) put forward the following formula to govern the recognition of "Partisans":-
39.
(a) where individuals in an occupied territory form a military
organisation to resist an Occupying Power;
(b) and gain effective, albeit temporary, control of a region;
(o) then provided that the individual members of such an
organisation:-
(i) are led by a person responsible for his subordinates;
(ii) habitually and consistently display a fixed
distinctive sign recognisable at a distance;
(iii) carry arms openly; and
(iv) provided that they comply with the rules of war and treat those members of the Occupying Power captured by them in accordance with the principles of the Convention;
(a) it is the opinion of the nations that members of such
organisations captured by the Occupying Power should receive similar treatment.
(C. R. G. C./P(47)3, paragraph 3)
The conditions set out in paragraph 38 (a), (c) and (d) above, received general approval but the Conference was almost evenly divided about (b). Pee "antifang goountries pointed out all the difficulties inherent in this context, and it was emphasised that tag232ing &ower would almost always be able to gain control of the lines of communication of a given region and would therefore be in a position to deny that
7
"Partisans" controlled that particular area. There is no doubt that the oase for some recognition of these part-time irregulars will be pressed by the delegations from those countries occupied by the enemy during the Second pWorld Warof it would be difficult for the United 4gdom
and delegation to resist this pressure in view of:-
40.
(a) the claim made that the Home Guard, if captured, were part
of the Armed Forces and entitled to be treated as prisoners of war;
(b) the proclamation by General Eisenhower claiming that the
French Resistance Forces were acting under his command and were entitled, if captured, to be treated as prisoners of war.
On the other hand, it would be dangerous to give unlimited recognition to any organised armed body, whatever the circumstances; and in particular it is desirable for the protection of our own Armed Forces to maintain, so far as practicable, the principle hitherto recognised by International Law that an enemy population is divided into two classes:
and that
asikl.
(a) the Armed Forces;
(b) the peaceful population
"It is one of the purposes of the laws of war to ensure that an
individual must definitely choose to belong to one class or the other, and shall not be permitted to enjoy the privileges of · both; in particular, that an individual shall not be allowed to kill or wound members of the Army of the opposed nation and, subsequently, if captured or in danger of life, to pretend to be a peaceful citizen" (Manual of Military Law, chapter XIV, paragraph 17).
After weighing all these considerations, my Committee approve the recommendation of their Sub-Committee that, subject to the approval of the Chiefs of Staff, the United Kingdom delegation should propose that "Partisans" should be protected by the Prisoners of War Convention, if captured: -
(a) whilst operating in any territory which is:-
(i) part of the territory of another belligerent while · active hostilities continue in another part of that territory;
(ii) territory of another belligerent when that belligerent
continues active hostilities outside that territory; (iii) territory of another belligerent when active hostil-
ities with the original Allies of that belligerent continue on or outside the territory of that belli- gerent even though the belligerent itself may have capitulated;
(iv). territory occupied without the agreement of an
indigenous Government, but without active hostil-' ities;
(v) territory occupied in the face of hostilities, but
without the declaration of war;
(vi) territory held by each side during a civil war (see
paragraphs 32 to 36 above);
(b) whilst belonging to a force;-