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4.5.4 Persons Belonging, or Having Belonged, to the Armed Forces of an Occupied State.
Under Article 4B(1) of the GPW, persons belonging, or having belonged, to the armed forces of
an occupied State should be treated as POWs if, while hostilities are continuing outside occupied
territory, the Occupying Power considers it necessary, by reason of their allegiance to the armed
forces, to intern them.
130
Article 4B(1) of the GPW seeks to address the proper status of an army demobilized by
the Occupying Power while a portion of those same armed forces continue the struggle. When
the forces are demobilized, they are treated as civilians, but when recalled for internment based
on their prior service, they are treated as POWs.
131 In particular, States developed this provision
to address Germany’s practice during World War II of arresting demobilized military personnel
from occupied States.
132 These personnel were often interned and sought to escape to join the
ongoing fighting. This provision was promulgated to ensure that individuals in similar
circumstances would receive POW treatment if they were interned. For example, the rules for
the parole of POWs would apply to them.
133 Similarly, the rules relating to POW escape would also apply to them.
134 So, a demobilized person who disobeyed an internment order and
attempted to escape to rejoin his or her armed force would, like a POW, be subject, at most, to
disciplinary punishment in respect of the act of escape.
135
Persons belonging, or having belonged, to the armed forces of an occupied State would
only be entitled to receive POW treatment while an international armed conflict continues.
136
For example, this provision would not apply to a situation like the occupation of Japan after
World War II because all hostilities had ended.
137
4.6 OTHER MILITIA AND VOLUNTEER CORPS
Under certain conditions, members of militia and volunteer corps that are not part of the
armed forces of a State qualify as combatants and receive the rights, duties, and liabilities of
combatant status.138 More specifically, Article 4(A)(2) of the GPW defines prisoners of war to
include:
Members of other militias and members of other volunteer corps, including those
of organized resistance movements, belonging to a Party to the conflict and
operating in or outside their own territory, even if this territory is occupied,
provided that such militias or volunteer corps, including such organized resistance
movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of
war Under these conditions, which are discussed below, members of these armed groups may
operate as combatants in or outside their own territory, even if this territory is occupied. By
contrast, a levée en masse may only be formed on the approach of the enemy to non-occupied
territory.
140
4.6.1 GPW 4A(2) Conditions in General. The conditions set forth in Article 4A(2) of the
GPW were derived from conditions found in the Regulations annexed to the 1899 Hague II and
the 1907 Hague IV.
141 These conditions reflect the attributes common to regular armed forces of
a State.
142 By seeking to ensure that participants in hostilities are sufficiently disciplined, lawabiding, and distinguishable from the civilian population, these conditions help protect the
civilian population from the hardships of war. In addition, these conditions contribute to the
military effectiveness of the force that satisfies the conditions.
143