United States considers that state aircraft of any nation are subject to control and regulation exclusively by that nation (unless operating within airspace over which another nation has sovereignty). With respect to State aircraft, contracting States need not undertake any commitment, and the United States does not undertake any commitment, to other nations as to the rules and regulations which any specific state aircraft or class of state aircraft will follow, except when issuing regulations for their state aircraft, that they will have due regard for the safety of navigation of civil aircraft.' (Article 3(d), Chicago Convention.)

In the application of these principles to all areas of civil/military coordination, . . . it is the position of the United States that when aircraft used in the military services of contracting States, are operating in international airspace in which another State is responsible, under ICAO arrangements, for the provision of civil air traffic sevices, States operating such aircraft should in their discretion, and the United States will in its discretion, advise the other States of the procedures being utilized by such aircraft. The State providing air traffic services can thus better judge what information concerning aviation activities in the area should be given to the authorities operating such state aircraft and what information or air traffic clearances should be given to civil aircraft in the vicinity. While contracting States operating such state aircraft should consider any information so received to determine whether, and the extent to which, they should utilize the information in controlling these aircraft activities, no State is required to obtain the concurrence of any other State when issuing rules, regulations or operating instructions for its state aircraft operating in international airspace..

Because the Chicago Convention does not apply to state aircraft, contracting States are under no obligation to give to ICAO the notification of differences contemplated by Article 38 of the Convention when state aircraft are not complying with international Standards established by ICAO; nor is there any requirement to notify ICAO of noncompliance by state aircraft with international Recommended Practices and Procedures.

Department of State airgram CA-8085, Feb 13, 1964, quoting U.S. Inter-Agency Group on International Aviation (IGIA) Doc. 88/1/1C, MS, Department of State, file POL 31 US. reprinted 9 Whiteman 430-431.

DOD Directive 4540.1, Operating Procedures for United States Military Aircraft Over the High Seas. June 23, 1962, sets forth DOD policy as to when US military aircraft should voluntarily follow the ICAO procedures.

30 The self-defense doctrine, and the principal international incident in which it was developed-the case of the Caroline-is discussed in De Saussure and Reed, "Self Defense-A Right In Outer Space," 7 AF JAG L. Rev. No. 5, at 38, 40-41 (1965). See also 2 Schwarzenberger, International Law, International Courts, The Law of Armed Conflict 28-36 (1968).

31 Fedele, supra note 16, at 24-25.

32 Ibid, at 17 et seq. Hot pursuit of ships by aircraft in international airspace over the high seas is expressly covered by Art 23(5) of the Convention on the High Seas, 13 UST 2312; TIAS 5200; 450 UNTS 582; AFP 110-20, at 7-10 (1962). Hot pursuit rights cease as soon as the ship pursued enters the territorial sea of its own country or of a third state. Art 23(2). Analogous principles would seem applicable to pursuit by aircraft of other aircraft. Poulantzas, The Right of Hot Pursuit in International Law 329-336 (1969).

33 9 Whiteman 328.

34 Such rights are analogous to rights of belligerents to establish immediate areas of naval operations on the high seas. See Tucker, "The Law of War and Neutrality At Sea," US Naval War College, 1955 International Law Studies 300-01 (1957).

35 Arts 1, 2, Hague V; US Navy, NWIP 10–2, Law of Naval Warfare, § 444a (1955), reprinted in 11 Whiteman 203-04. See also additional authorities. supra chapter 4, footnote 1, this publication.

36 See Hague V; authorities excerpted in 11 Whiteman 174-211; and Article 4B(2), GPW.

37 See supra note 25. Carrying purely personal effects of nonmilitary significance belonging to crew, medical personnel and patients does not contravene the requirements of "exclusively engaged." Attacks on medical aircraft are discussed in paragraph 4-2, this publiction.

3-1. Introduction. This chapter defines, compares and differentiates the status of combatants, noncombatants and civilians. The requirements necessary for entitlement as a combatant are enumerated and the effects of unlawful combatant status discussed. The various categories of noncombatants, including civilians, are explained with an examination of the rights and obligations of each category.

3-2. Combatants:

a. Explained. A combatant is a person who engages in hostile acts in an armed conflict on behalf of a Party to the conflict. A lawful combatant is one authorized by competent authority of a Party to engage directly in armed conflict. He must conform to the standards established under international law for combatants. Authority of a Party to a conflict may be expressed in various forms such as commission, emolument, attestation, warrant, order, conscription or enlistment. The combatant, thus invested with authority, must be recognizable as such. Just as the soldier is required in armed conflict on land to wear a recognizable uniform or sign, the military aircraft in combat must bear clear and visible markings which indicate its military status as an entity of combat. Unless specifically protected, it is a proper target regardless of the combatant status of individuals aboard. Their status is relevant when they debark from the plane. At that time, their status depends upon other factors such as their authorization, individual activities and mode of dress rather than markings or activities of the aircraft. 2

b. Categories of Lawful Combatants:

(1) Regular Forces.3 Members of regular armed forces are lawful combatants whether they are volunteers, conscripts, nationals of the state, foreigners (including

neutrals who have joined the armed forces of a Party to a conflict), men or women. Also recognized as lawful combatants are members of the regular armed forces who profess allegiance to a government or authority not recognized by the other Party to the conflict. Thus, during World War II free French followers of General Charles DeGaulle or armed forces of puppet enemy governments were equally entitled to be recognized as combatants.

(2) Militia in Regular Forces. The greater part of the armed forces of a Party to a conflict traditionally consisted of its regular military forces. However,

What kinds of forces constitute a regular army and a regular navy (as well as a regular air force) is not for International Law to determine, but is a matter of municipal law exclusively. Thus, whether or not so-called militia and volunteer corps belong to armies rests entirely with the municipal law of the belligerents; and there are several states whose armies consist of militia and volunteer corps exclusively, no standing army being provided for. 4

Militia or volunteer corps may thus form part of the armed forces, as provided for in both the Hague Regulations and the 1949 Geneva Conventions. 5

(3) Irregular Forces. Two kinds of irregular forces, both entitled to PW status, may take part directly in hostilities: The first group are those members of militias or volunteer corps forming part of the armed forces of a Party to the conflict (discussed above). A second type of irregular force is members of other militia or other volunteer corps, including members of organized resistance movements who, belonging to a Party to the conflict, meet certain other requirements customarily required of all combatants, including:

(a) being commanded by a person responsible for his subordinates,

(b) having a fixed distinctive sign recognizable at a distance,

(c) carrying arms openly, and

(d) conducting their operations in accordance with the law of armed conflict. These requirements were adopted because modern armed conflict frequently involves guerrilla warfare and counterinsurgency techniques. The difficulties of guerrilla warfare have long been recognized. During World War II confusion arose as to the status of organized resistance movements and other irregular forces. The 1949 Geneva Conventions attempted to resolve this controversy by recognizing the PW status of irregular forces meeting certain requirements. Recognition of combatants as lawful belligerents under the Geneva Conventions depends upon certain objective criteria being met and the existence of an international armed conflict. The causes for which combatants fight-or indeed the causes of the conflictdo not condition the equal application of the law of armed conflict or the equal obligation to follow the law. 7a

(4) Explanation

of Conditions. 8 (a) Command. The requirement that combatants be commanded by a person responsible for his subordinates requires the person in command to exercise effective control and discipline. Discipline is required to ensure compliance with the law of armed conflict. A commander may derive his authority from the state (e.g., a commission), from election by his troops, or from acknowledgement by his subordinate "commander." The force must belong to a Party to the conflict whatever the source of authority, although state recognition is not essential.

(b) Distinctive Sign. This requirement, which may be satisfied by a uniform, insures that combatants are clearly distinguishable from civilians to enhance protection of civilians. Less than a complete uniform will suffice provided it serves to distinguish

clearly combatants from civilians. The uniform or sign should be recognizable at the same distance that a civilian can be identified although no specific distance is set forth in the Geneva Conventions.

(c) Carry Arms Openly. Irregular forces do not satisfy this requirement by carrying arms concealed about the person or if the individuals hide their weapons on the approach of the enemy.

(d) Comply With Law. There is a clear obligation on all Parties to a conflict to instruct their armed forces and combatants in the law of armed conflict and to insure, through discipline, that the law is followed." Concerning irregular forces,

[It is especially necessary that they should be] warned against employment of treachery, denial of quarter, maltreatment of prisoners, wounded, and dead, improper conduct towards flags of truce, pillage, and unnecessary violence and destruction. 10

(e) Belong to a Party to the Conflict. The 1949 Geneva Conventions exclude a force acting on its own initiative not belonging to a Party in a conflict to which the Conventions apply. Express authorization by the government of a Party is not required."1

(f) Organized Resistance Movements. A recognized international legal scholar noted:

By their very nature, guerrilla forces must operate in small bands and act on their own initiative to a much greater degree than regular forces, but to obtain the protection afforded by the present provision [in the 1949 GPW] it would appear that they should have a central organization and be subject to the discipline and directives of that central command. Disorderly bands operating on their own unrestricted initiative and responsibility are seemingly excluded from the protection of this provision, as are individual guerrillas acting on their own responsibility. 12

(5) Levée en masse. 13 A levée en masse is a spontaneous springing to arms by the