Section I.
Methods and Means of Warfare
Art 35. Basic rules
1. In any armed conflict, the right of the Parties to the
conflict to choose methods or means of warfare is not unlimited.
2. It is prohibited to employ weapons, projectiles and material and
methods of warfare of a nature to cause superfluous injury or
unnecessary suffering.
3. It is prohibited to employ methods or means of warfare which are
intended, or may be expected, to cause widespread, long-term and severe
damage to the natural environment.
Art 36. New weapons
In the study, development, acquisition or adoption
of a new weapon, means or method of warfare, a High Contracting Party is
under an obligation to determine whether its employment would, in some or
all circumstances, be prohibited by this Protocol or by any other rule of
international law applicable to the High Contracting Party.
Art 37. Prohibition of Perfidy
1. It is prohibited to kill, injure or capture an adversary by
resort to perfidy. Acts inviting the confidence of an adversary to lead
him to believe that he is entitled to, or is obliged to accord,
protection under the rules of international law applicable in armed
conflict, with intent to betray that confidence, shall constitute
perfidy. The following acts are
examples of perfidy:
(a) the
feigning of an intent to negotiate under a flag of truce or of a
surrender;
(b) the feigning of an incapacitation by wounds or
sickness;
(c) the feigning of civilian, non-combatant status; and
(d) the feigning of protected status by the use of signs, emblems or
uniforms of the United Nations or of neutral or other States not Parties
to the conflict.
2. Ruses of war are not prohibited. Such ruses are acts which are
intended to mislead an adversary or to induce him to act recklessly but
which infringe no rule of international law applicable in armed conflict
and which are not perfidious because they do not invite the confidence
of an adversary with respect to protection under that law. The following
are examples of such ruses: the use of camouflage, decoys, mock
operations and misinformation.
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 or 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 or 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
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.
