Franc Tireur - Prisoner Status

Prisoner Status

Before the two world wars, the term Franc-tireur was sometimes used for an armed fighter who, if captured, was not necessarily entitled to prisoner of war status. An issue of disagreement at the 1899 Hague Conference, the controversy generated the Martens Clause. The Martens Clause was introduced as a compromise between the Great Powers, who considered francs-tireurs to be unlawful combatants subject to execution on capture, and smaller states, who maintained that they should be considered lawful combatants.

After World War II, during the Hostages Trial (or, officially, 'The United States of America vs. Wilhelm List, et al.), the seventh of the Nuremberg Trials, the tribunal found that, on the question of partisans, according to the then-current laws of war (the Hague Convention No. IV from 1907), the partisan fighters in southeast Europe could not be considered lawful belligerents under Article 1 of said convention. In relation to Wilhelm List, the tribunal stated:

We are obliged to hold that such guerrillas were francs tireurs who, upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility attaches to the defendant List because of the execution of captured partisans...

The Geneva Conventions established new protocols, namely, according to Article 4 of the Third Geneva Convention of 1949, francs-tireurs are entitled to prisoner of war status provided that they are commanded by a person responsible for his subordinates, have a fixed distinctive sign recognizable at a distance, carry arms openly, and conduct their operations in accordance with the laws and customs of war.