Lawful Combatants. In his Final Report, Xxxxxx claimed that the Hostage tribunal’s refusal to extend belligerent status to “ununiformed guerrillas and franc-tireurs” would “stimulate efforts to reconsider the provisions of the Hague and Geneva Conventions relating to this controversial question.”59 Once again his predictive skills were lacking: although the Third Geneva Convention of 1949 (GC III) makes clear that “militias and other volunteer corps” that are not part of the armed forces can qualify as lawful combatants, Article 4(2) requires partisans to satisfy the same four requirements as Article 1 of the Hague Regulations. That said, the tribunals likely influenced the drafters of the Article 4(2) concerning partisan activity in occupied territory. According to Pictet, it was “generally considered” that the Hague Regulations permitted partisans to be recognized as lawful combatants only during the period of invasion.60 Article 4(2), by contrast, explicitly permits partisan groups that qualify as lawful combatants to operate “in or outside their own territory, even if this territory is occupied.” That change is consistent with the NMT judgments, which never relied on the invasion/occupation distinction to deny partisans combatant status. Indeed, the Hostage tribunal specifically held that “certain band units in both Yugoslavia and Greece complied with the requirements of international law entitling them to the status of a lawful belligerent” even though it considered both countries to be occupied at the time.61 The NMTs also likely influenced the adoption of Article 5 of GC III, which provides that “[s]hould any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” That provision had no analogue in the Hague Regulations, but it is consistent with the judgments, which uniformly held that captured partisans were entitled to a fair judicial process to determine whether they were, in fact, unlawful combatants.
