The NSAG ought to make a formal declaration (161) to the ICRC confirming that it will comply with the LOAC; that it will include it in the internal codes of conduct or instructions; and that it will disseminate and enforce said rules vis-a-vis its members.
The NSAG ought to confirm specifically that captured combatants will be treated humanely and will not be executed (nor used as human shields).
The NSAG ought to confirm specifically that its members (a) will distinguish themselves from the civilian population by wearing a "fixed distinctive sign recognizable at a distance," (163) at least, "in all circumstances where concealment would directly jeopardize the lives or liberty of civilians," (164) and (b) will carry their arms openly during each military engagement and during such time as they are visible to the adversary while engaged in a military deployment preceding the launching of an attack in which they are to participate.
By analogy with Articles 1(4) and 96(3) AP I (on wars of national liberation), (169) some might argue in favor of an additional requirement, in that the NSAG should constitute the legitimate representative of a substantial part of the population of the State concerned.
178) Conversely, it can be argued that when it becomes clear that the NSAG no longer meets the substantive criteria--either because government forces have gained the upper hand and what once was a full-scale civil war has become more akin to a rebellion, or because the NSAG consistently fails to distinguish from the civilian population or systematically executes captured government forces--the de jure government should be permitted to issue a declaration stating that it will no longer recognize the combatant privilege on the part of the NSAG.
The starting point is that the ad hoc approach is not satisfactory in the long run and that it should no longer be left to the de jure government to voluntarily accept the activation (179) of this new regime to a particular NIAC by means of an express recognition of belligerency, an ad hoc agreement with the NSAG, or a unilateral declaration of some sort.
184) When it arrives, the question concerning the status of NSAG members in a full-scale civil war should be addressed.
States can amend their national, criminal codes to exclude prosecution and punishment of members of an NSAG for mere participation in hostilities, or, in subsidiary order, to replace the death sentence by lighter sentences.
Finally, in situations of full-scale civil war where the de jure government refuses to grant captured members of an NSAG combatant-like status, the U.
193) The latter options could also be followed in case the UNSC were to consider imposing a duty on the parties to grant combatant-like treatment or in case the de jure government were to indicate its intention to no longer recognize the combatant privilege on the part of the NSAG.
Apart from the practical difficulties involved (for example, NSAGs often lack the logistical capacities to conduct a proper trial), considerable debate exists, for instance, as to what must be understood by a "regularly constituted court" for purposes of an NSAG trial, what minimum fair trial standards apply, and what law the NSAG could or should apply.