Abstract/Summary

This chapter examines whether a member of the armed forces captured out of uniform or wearing a nontraditional uniform benefits from the extensive protections that POWs enjoy under the Third Geneva Convention, most of which is considered to reflect customary international law. The key provision in this regard is Article 4A, which lays out who is entitled to POW status. Under Article 4A(2), irregular groups that are not part of the armed forces seeking to benefit from POW status must have a fixed distinctive sign, usually satisfied by wearing a uniform. The question addressed in the chapter is whether this requirement is implicit for members of the regular armed forces or groups incorporated into the armed forces, such that their failure to distinguish themselves results in forfeiture of POW status. There are two views. By the first, the wearing of the uniform or other distinguishing attire at the time of capture has no bearing upon status as a POW; it is the captured soldier’s inclusion in the enemy armed forces that accords that status. By the contrary view, and the better one as argued in this chapter, those captured out of uniform are unprivileged combatants. As such, they forfeit POW status and its attendant protections, as well as combatant immunity.