Section 65p. 65

PUBLIC INTERNATIONAL LAW COMPENDIUM VOLUME II

behalf by notification to the detaining Power or to the

Protecting Power. Should any doubt arise as to whether

any such person is entitled to the status of prisoner of

war, he shall continue to have such status and, therefore,

to be protected by the Third Convention and this Protocol

until such time as his status has been determined by a

competent tribunal.

2. If a person who has fallen into the power of an adverse

Party is not held as a prisoner of war and is to be tried by

that Party for an offence arising out of the hostilities, he

shall

have

the

right

to

assert

his

entitlement

to

prisoner-of-war status before a judicial tribunal and to

have that question adjudicated. Whenever possible under

the applicable procedure, this adjudication shall occur

before the trial for the offence. The representatives of the

Protecting

Power

shall

be

entitled

to

attend

the

proceedings in which that question is adjudicated, unless,

exceptionally, the proceedings are held in camera in the

interest of State security. In such a case the detaining

Power shall advise the Protecting Power accordingly.

3. Any person who has taken part in hostilities, who is not

entitled to prisoner-of-war status and who does not

benefit from more favourable treatment in accordance

with the Fourth Convention shall have the right at all

times to the protection of Article 75 of this Protocol. In

occupied territory, any such person, unless he is held as a

spy, shall also be entitled, notwithstanding Article 5 of the

Fourth Convention, to his rights of communication under

that Convention.

Art 46. Spies

1. Notwithstanding any other provision of the Conventions

or of this Protocol, any member of the armed forces of a

Party to the conflict who falls into the power of an adverse

Party while engaging in espionage shall not have the

right to the status of prisoner of war and may be treated

as a spy.

2. A member of the armed forces of a Party to the conflict

who, on behalf of that Party and in territory controlled by

an

adverse

Party,

gathers

or

attempts

to

gather

information shall not be considered as engaging in

espionage if, while so acting, he is in the uniform of his

armed forces.

3. A member of the armed forces of a Party to the conflict

who is a resident of territory occupied by an adverse Party

and who, on behalf of the Party on which he depends,

gathers or attempts to gather information of military

value within that territory shall not be considered as

engaging in espionage unless he does so through an act

of false pretences or deliberately in a clandestine manner.

Moreover, such a resident shall not lose his right to the

status of prisoner of war and may not be treated as a spy

unless he is captured while engaging in espionage.

4. A member of the armed forces of a Party to the conflict

who is not a resident of territory occupied by an adverse

Party and who has engaged in espionage in that territory

shall not lose his right to the status of prisoner of war and

may not be treated as a spy unless he is captured before

he has rejoined the armed forces to which he belongs.

Art 47. Mercenaries

1. A mercenary shall not have the right to be a combatant

or a prisoner of war.

2. A mercenary is any person who:

(a) is specially recruited locally or abroad in order to fight

in an armed conflict;

(b) does, in fact, take a direct part in the hostilities;

(c) is motivated to take part in the hostilities essentially by

the desire for private gain and, in fact, is promised, by or

on

behalf

of

a

Party

to

the

conflict,

material

compensation substantially in excess of that promised or

paid to combatants of similar ranks and functions in the

armed forces of that Party;

(d) is neither a national of a Party to the conflict nor a

resident of territory controlled by a Party to the conflict;

(e) is not a member of the armed forces of a Party to the

conflict; and

(f) has not been sent by a State which is not a Party to the

conflict on official duty as a member of its armed forces.

Part IV. Civilian Population

Section I. General Protection Against Effects of Hostilities

Chapter I. Basic rule and field of application

Art 48. Basic rule

In order to ensure respect for and protection of the

civilian population and civilian objects, the Parties to the

conflict shall at all times distinguish between the civilian

population and combatants and between civilian objects

and military objectives and accordingly shall direct their

operations only against military objectives.

Art 49. Definition of attacks and scope of application

1. "Attacks" means acts of violence against the adversary,

whether in offence or in defence.

2. The provisions of this Protocol with respect to attacks

apply to all attacks in whatever territory conducted,

including the national territory belonging to a Party to

the conflict but under the control of an adverse Party.

3. The provisions of this section apply to any land, air or

sea warfare which may affect the civilian population,

individual civilians or civilian objects on land. They further

apply to all attacks from the sea or from the air against

objectives on land but do not otherwise affect the rules of

international law applicable in armed conflict at sea or in

the air.

4. The provisions of this section are additional to the rules

concerning humanitarian protection contained in the

Fourth Convention, particularly in part II thereof, and in

other international agreements binding upon the High

Contracting

Parties,

as

well

as

to

other

rules

of

international law relating to the protection of civilians and

civilian objects on land, at sea or in the air against the

effects of hostilities.

Chapter II. Civilians and civilian population

Art 50. Definition of civilians and civilian population

1. A civilian is any person who does not belong to one of

the categories of persons referred to in Article 4 (A) (1), (2),

(3) and (6) of the Third Convention and in Article 43 of this

Protocol. In case of doubt whether a person is a civilian,

that person shall be considered to be a civilian.

2. The civilian population comprises all persons who are

civilians.

3.

The

presence

within

the

civilian

population

of

individuals who do not come within the definition of

civilians does not deprive the population of its civilian

character.

Art 51. - Protection of the civilian population

1. The civilian population and individual civilians shall

enjoy general protection against dangers arising from

military operations. To give effect to this protection, the

following rules, which are additional to other applicable

rules

of

international

law,

shall

be

observed

in

all

circumstances.

2. The civilian population as such, as well as individual

civilians, shall not be the object of attack. Acts or threats

of violence the primary purpose of which is to spread

terror among the civilian population are prohibited.

© Compiled by RGL

65 of 163