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4.6.1.3 Application of GPW 4A(2) Conditions to the Armed Forces of a State.The text of the GPW does not expressly apply the conditions in Article 4A(2) of the GPW to thearmed forces of a State. 150 Thus, under the GPW, members of the armed forces of a Statereceive combatant status (including its privileges and liabilities) by virtue of their membership inthe armed forces of a State. 151 Nonetheless, the GPW 4A(2) conditions were intended to reflectattributes of States’ armed forces. 152 If an armed force of a State systematically failed todistinguish itself from the civilian population and to conduct its operations in accordance withthe law of war, its members should not expect to receive the privileges afforded lawfulcombatants. 153 Similarly, members of the armed forces engaged in spying or sabotage forfeittheir entitlement to the privileges of combatant status if captured while engaged in thoseactivities. 1544.6.2 Belonging to a Party to the Conflict. The armed group must belong to a party to theconflict. 155 The requirement of “belonging” to a party establishes that the armed group fulfills ajus ad bellum requirement of right authority, i.e., it is acting on the authority of a State. 156 This150 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 465-66 (“General SLAVIN (Union ofSoviet Socialist Republics) said that according to the first paragraph, sub-paragraph I, of the working text it wouldappear that members of the Armed forces would have to fulfil the four traditional requirements mentioned in (a),(b), (c) and (d) in order to obtain prisoner of war status, which was contrary to the Hague Regulations (Article I ofthe Regulations concerning the Laws and Customs of War, 18 October 1907). General DEVIJVER (Belgium) pointedout that the above reproduced working text had been drafted with due regard to the Hague Regulations, and the firstparagraph, sub-paragraph (I), of the working text carefully specified that only members of militia or volunteer corpsshould fulfil all four conditions.”). Cf. In re Lewinski (called von Manstein) Case, reprinted in ANNUAL DIGESTAND REPORTS OF PUBLIC INTERNATIONAL LAW CASES 509, 515-16 (H. Lauterpacht, ed., 1949) (“Regular soldiersare so entitled without any of the four requirements set out in Article 1 [of the Hague IV Reg.]: they are requisite inorder to give the Militia and Volunteer Corps the same privileges as the Army.”).151 Refer to § 4.5 (Armed Forces of a State).152 Refer to footnote 142 in § 4.6.1 (GPW 4A(2) Conditions in General).153 See Jay S. Bybee, Assistant Attorney General, Status of Taliban Forces Under Article 4 of the Third GenevaConvention of 1949, Feb. 7, 2002, 26 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 1, 4 (“We conclude, however,that the four basic conditions that apply to militias must also apply, at a minimum, to members of armed forces whowould be legally entitled to POW status. In other words, an individual cannot be a POW, even if a member of anarmed force, unless forces also are: (a) ‘commanded by a person responsible for his subordinates’; (b) ‘hav[e] afixed distinctive sign recognizable at a distance’; (c) ‘carry[] arms openly’; and (d) ‘conduct[] their operations inaccordance with the laws and customs of war.’ Thus, if the President has the factual basis to determine that Talibanprisoners are not entitled to POW status under Article 4(A)(2) as members of a militia, he therefore has the groundsto also find that they are not entitled to POW status as members of an armed force under either Article 4(A)(1) orArticle 4(A)(3).”) (brackets in original); BOTHE, PARTSCH, & SOLF, NEW RULES 234-35 (AP I art. 43, 2.1.2) (“It isgenerally assumed that these conditions were deemed, by the 1874 Brussels Conference and the 1899 and 1907Hague Peace Conferences, to be inherent in the regular armed forces of States. Accordingly, it was considered to beunnecessary and redundant to spell them out in the Conventions.”).154 Refer to § 4.17.5 (Spying and Sabotage – Forfeiture of the Privileges of Combatant Status).155 GPW art. 4A(2). Cf. LIEBER CODE art. 81 (“Partisans are soldiers armed and wearing the uniform of their army,but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territoryoccupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war.”).156 Refer to § 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose).121