CAB129-33 — Page 305

Page 305 (a) where individuals in an occupied territory forin a military

organisation to resist an occupying Power;

(b) and gain effective, albeit temporary, control of a region (a) 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".

Seven delegations at the Conference would not accept this statement unless (b) were deleted: five delegations regarded the clause as essential in order to secure some objective test: the remaining three delegations did not declare their attitude.

6. The definitions in paragraphs 4 and 5 above are similar except for the disputed clause in sub-paragraph 5(b) and for the inclusion in sub-paragraph 5(c)(ii) of the words "habitually and consistently". The definition in paragraph 4 covers broadly what may be termed the normal conception of an "irregular combatant" or "partisan". Throughout this Report, therefore, the term "partisan" is used to describe a member of the fighting organisation other than a regular member of the Armed Forces or "camp Follower", and includes:-

(a) an "irregular combatant";

(b) a member of a "military organisation to resist an Occupying

Power";

(c) a member of the "Home Guard" or any similar organisation.

The Sub-Committee have not considered the "levy en masse".

Conditions to be fulfilled by a "partisan"

•

7. The Sub-Committee considered it fundamental to preserve the principle recognised by International Law, that an enemy population is divided into two olasses:-

(a) the Armed Forces;

(b) the peaceful population;

"It

and that each has distinct privileges, duties and disabilities. 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, chapte Page 305agfap8817).

Page 305

8.

The Sub-Committee recognise that, if this principle is maintained in the full sense that it has hitherto borne, it will not be possible to

102

meet the very strongly expressed desires of the delegations at the 1947 Geneva Conference of Government Experts from those European countries which had experience as "partisans" in the Second World War. (France, Belgium, holland, Norway, Czechoslovakia and Poland). They came to age 300488 that the statement of pragi30 of 488 paragraph 7 above needs some modification to meet the conditions of modern warfare on a large scale.

9. The Sub-Committee suggest that the essential character of the principle laid down in paragraph 7 above would be satisfied even though certain formations consisted of individuals who might be carrying out civilian functions and military functions intermittently, so long as they did not attempt any military activity unless and until they had assembled under disciplined control and were satisfying all the other conditions set out in sub-paragraph 5(c) above. Clearly, if taken into custody whilst carrying out civilian functions and charged with some military activity, they would not secure the protection of the Prisoners of War Convention unless they first established, to the satisfaction of the Detaining Power:-

160

(a) that they were bona fide members of a recognisable "partisan"

organisation;

(b)

that at the time of taking part in such military activity, they were conforming to the conditions laid down.

10. In putting forward this proposal, the Sub-Committee have taken into consideration the following factors:-

11.

(a)

•

that, in their opinion, the Government of the United Kingdom had, during the Second World War, recognised this modification of the principle laid down in paragraph above, first, in the formation of the Home Guard, and, secondly, when General Eisenhower, as Supreme Commander of the Allied Expeditionary Forces, issued a proclamation to the effect that the forces of the French Resistance Movement were part of his foroes and must be recognised as legitimate combatants;

(b) that it was the minimum that was likely to meet the wishes

of the "partisan" countries represented at the 1947 Geneva Conference of Government. Experts;

(c)

that "partisans" will, in any case, operate intermittently as combatants and as civilians: if, however, they are "recognised" and they can claim prisoner of war status, if captured, they will probably behave more humanely towards the forces of the occupying Powers (French representatives, who had served in the Resistance Forces, at the 1947 Geneva Conference of Government Experts asserted that this would, in fact, be so).

The Sub-Committee realise, however, that the proposal has certain objections from the military operations point of view, viz:-

12.

of

(a) that the proposal would tend to increase the number of

inhabitants of an occupied territory who will join a

if an individual can be sure "partisan" movement: receiving prisoner of war status if captured as a "partisan" even though he continued to live his normal civilian life except when engaged on operations, then the major deterrent to becoming a "partisan" (fear of the consequences if caught) is removed;

(b)

the "partisans" would have a taotical advantage over the occupying forces, as it is impossible to define exactly at what stage the individual should change from a civilian to a soldier and vice versa: "partisans" could, for example, observe the locations and movements of the Paggupying fogges, and concentrate their own forces while

dressed as civilians.