Section 64p. 64

PUBLIC INTERNATIONAL LAW COMPENDIUM VOLUME II

Art 38. Recognized emblems

1. It is prohibited to make improper use of the distinctive

emblem of the red cross, red crescent or red lion and sun

or of other emblems, signs or signals provided for by the

Conventions or by this Protocol. It is also prohibited to

misuse

deliberately

in

an

armed

conflict

other

internationally recognized protective emblems, signs or

signals, including the flag of truce, and the protective

emblem of cultural property.

2. It is prohibited to make use of the distinctive emblem

of the United Nations, except as authorized by that

Organization.

Art 39. Emblems of nationality

1. It is prohibited to make use in an armed conflict of the

flags or military emblems, insignia or uniforms of neutral

or other States not Parties to the conflict.

2. It is prohibited to make use of the flags or military

emblems, insignia or uniforms of adverse Parties while

engaging in attacks or in order to shield, favour, protect or

impede military operations.

3. Nothing in this Article or in Article 37, paragraph 1 (d),

shall affect the existing generally recognized rules of

international law applicable to espionage or to the use of

flags in the conduct of armed conflict at sea.

Art 40. Quarter

It is prohibited to order that there shall be no survivors, to

threaten an adversary therewith or to conduct hostilities

on this basis.

Art 41. Safeguard of an enemy hors de combat

1.

A

person

who

is

recognized

or

who,

in

the

circumstances, should be recognized to be hors de

combat shall not be made the object of attack.

2. A person is hors de combat if:

(a) he is in the power of an adverse Party;

(b) he clearly expresses an intention to surrender; or

(c) he has been rendered unconscious or is otherwise

incapacitated by wounds or sickness, and therefore is

incapable of defending himself;

provided that in any of these cases he abstains from any

hostile act and does not attempt to escape.

3. When persons entitled to protection as prisoners of war

have fallen into the power of an adverse Party under

unusual

conditions

of

combat

which

prevent

their

evacuation as provided for in Part III, Section I, of the Third

Convention,

they

shall

be

released

and

all

feasible

precautions shall be taken to ensure their safety.

Article 42 - Occupants of aircraft

1. No person parachuting from an aircraft in distress shall

be made the object of attack during his descent.

2. Upon reaching the ground in territory controlled by an

adverse Party, a person who has parachuted from an

aircraft in distress shall be given an opportunity to

surrender before being made the object of attack, unless

it is apparent that he is engaging in a hostile act.

3. Airborne troops are not protected by this Article.

Section II. Combatants and Prisoners of War

Art 43. Armed forces

1. The armed forces of a Party to a conflict consist of all

organized armed forces, groups and units which are

under a command responsible to that Party for the

conduct

of

its

subordinates,

even

if

that

Party

is

represented

by

a

government

or

an

authority

not

recognized by an adverse Party. Such armed forces shall

be subject to an internal disciplinary system which, inter

alia,

shall

enforce

compliance

with

the

rules

of

international law applicable in armed conflict.

2. Members of the armed forces of a Party to a conflict

(other than medical personnel and chaplains covered by

Article 33 of the Third Convention) are combatants, that is

to say, they have the right to participate directly in

hostilities.

3.

Whenever

a

Party

to

a

conflict

incorporates

a

paramilitary or armed law enforcement agency into its

armed forces it shall so notify the other Parties to the

conflict.

Art 44. Combatants and prisoners of war

1. Any combatant, as defined in Article 43, who falls into

the power of an adverse Party shall be a prisoner of war.

2. While all combatants are obliged to comply with the

rules of international law applicable in armed conflict,

violations of these rules shall not deprive a combatant of

his right to be a combatant or, if he falls into the power of

an adverse Party, of his right to be a prisoner of war,

except as provided in paragraphs 3 and 4.

3. In order to promote the protection of the civilian

population from the effects of hostilities, combatants are

obliged

to

distinguish

themselves

from

the

civilian

population while they are engaged in an attack or in a

military operation preparatory to an attack. Recognizing,

however, that there are situations in armed conflicts

where, owing to the nature of the hostilities an armed

combatant cannot so distinguish himself, he shall retain

his

status

as

a

combatant,

provided

that,

in

such

situations, he carries his arms openly:

(a) during each military engagement, and

(b) during such time as he is visible to the adversary while

he is engaged in a military deployment preceding the

launching of an attack in which he is to participate.

Acts

which

comply

with

the

requirements

of

this

paragraph shall not be considered as perfidious within

the meaning of Article 37, paragraph 1 (c).

4. A combatant who falls into the power of an adverse

Party while failing to meet the requirements set forth in

the second sentence of paragraph 3 shall forfeit his right

to be a prisoner of war, but he shall, nevertheless, be

given protections equivalent in all respects to those

accorded to prisoners of war by the Third Convention and

by this Protocol. This protection includes protections

equivalent to those accorded to prisoners of war by the

Third Convention in the case where such a person is tried

and punished for any offences he has committed.

5. Any combatant who falls into the power of an adverse

Party while not engaged in an attack or in a military

operation preparatory to an attack shall not forfeit his

rights to be a combatant and a prisoner of war by virtue

of his prior activities .

6. This Article is without prejudice to the right of any

person to be a prisoner of war pursuant to Article 4 of the

Third Convention.

7. This Article is not intended to change the generally

accepted practice of States with respect to the wearing of

the uniform by combatants assigned to the regular,

uniformed armed units of a Party to the conflict.

8. In addition to the categories of persons mentioned in

Article

13

of

the

First

and

Second

Conventions, all

members of the armed forces of a Party to the conflict, as

defined in Article 43 of this Protocol, shall be entitled to

protection under those Conventions if they are wounded

or

sick

or,

in

the

case

of

the

Second Convention,

shipwrecked at sea or in other waters.

Art 45. Protection of persons who have taken part in

hostilities

1. A person who takes part in hostilities and falls into the

power of an adverse Party shall be presumed to be a

prisoner of war, and therefore shall be protected by the

Third Convention, if he claims the status of prisoner of

war, or if he appears to be entitled to such status, or if the

Party on which he depends claims such status on his

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