c. Carrying arms openly;lo and,d. Conducting their operations in accordance with the laws and customs of
war.- One must recognize that with coalition operations one may have to apply a
different standard; our coalition partners may use Protocol 1's criteria.
Protocol I only requires combatants to carry their arms openly in the attack
and to be commanded by a person responsible for the organization's actions,
comply with the laws of war, and have an internal discipline system. Art. 43
& 44, GPI. Therefore, guerrillas may be covered. Note: The United States is
NOT a party to Protocol I, but 161 nations are parties to the treaty." - In addition, numerous other persons detained by military personnel are
entitled to EPW status if "they have received authorization from the armed
forces which they accompany." (i.e., possess a GC identity card from a
belligerent government). Specific examples include:
a. Contractors;c. Civilian members of military aircraft crews;d. Merchant marine and civil aviation crews;e. Persons accompanying armed forces (dependents);" and,lo This term carrying arms openly does NOT require they be carried visibly. However, the requirement rests
upon the ability to recognize a combatant as just that. Protocol I changes this requirement in a significant way.
Under the 1949 Convention, a combatant is required to distinguish himself throughout military operations.
Art. 44(3), GPI, only obligates a combatant to distinguish himself from the civilian population "while they are
engaged in an attack or in a military operation preparatory to an attack, or in any action carried out with a view
to combat." COMMENTARYON THE ADDITIONALPROTOCOLS OF 8 JUNE 1977 TO THE GENEVACONVENTIONS
OF 12 AUGUST 1949 527 (Y. Sandoz, C. Swinarski, and B. Zimmerman, eds. 1987).
"ICRC document detailing States Party to International Humanitarian Law Treaties (as of 3 June 2003)[on
file at TJGSA]." See Hans-Peter Gasser, The Protection ofJourrzalists Engaged in Dangerous Professional n/fissions, INT'L
REV.RED CROSS(JanFeb. 1983), at 3. See also KATEWEBB,ON THE OTHER S~DE (1972) (journalist held for
23 days in Cambodia by the Viet Cong).
' See Stephen Sarnosla, The Stam Under International Law of Civilian Persons Sewing with or
Accompanying Armed Forces in the Field, ARMY LAW.(July 1994), at 29. See generally, MEMORANDUM
FOR THE ASSISTANT JUDGE ADVOCATE GENERAL (CIVIL LAW), SUBJ: Civilians in Desert Shield -
- INFORMATION MEMORANDUM (26 NOV.' 1992).
87
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