No Shirt, No Shoes, No Status: Uniforms, Distinction, and Special Operations in International Armed Conflict

Extract

---

No Shirt, No Shoes, No Status: Uniforms, Distinction, and Special Operations in International Armed Conflict

94 MILITARY LAW REVIEW [Vol. 178

NO SHIRT, NO SHOES, NO STATUS: UNIFORMS, DISTINCTION, AND SPECIAL OPERATIONS IN

INTERNATIONAL ARMED CONFLICT

MAJOR WILLIAM H. FERRELL, III1

The United States is in international armed conflict with Country X, a nation that harbors terrorist group Y. A U.S. Special Operations Force (SOF) has been tasked to conduct a direct action raid to destroy a group Y terrorist cell in Country X. Both X and Y forces have been declared hostile. Two days before the anticipated raid, several reconnaissance teams are inserted to gather information on the objective and to assume sniper positions to support the follow-on raid force. These reconnaissance teams are inserted wearing local civilian clothing to help avoid detection, and they will remain in civilian clothing throughout the mission to conceal their true identity. After two days of reporting from near the objective, one of the reconnaissance teams identifies a building where several members of Country X's armed forces and terrorists from group Y conduct daily meetings.

The mission of the raid force is to kill or capture all members of Country X's armed forces and terrorist group Y found at the building. The reconnaissance teams are instructed that a sniper

1. U.S. Marine Corps. Currently assigned as the Deputy Chief, Operational Law, U.S. Forces Korea; Assistant Judge Advocate, United Nations Command; Operational Law Attorney, ROK-U.S. Combined Forces Command; Legal Advisor, United Nations Command Military Armistice Commission; and Staff Judge Advocate, U.S. Marine Corps Forces Korea. LL.M., 2002, The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia. J.D., 1991, University of Richmond; M.B.A., 1991, University of Richmond; B.A., 1986, Virginia Polytechnic Institute and State University. Previously assigned as Marine Representative, Center for Law and Military Operations (CLAMO), Charlottesville, Virginia, 1998-2001; Military Observer, United Nations Mission for the Referendum in the Western Sahara, 1998; International Law Officer, Marine Corps Bases, Japan, 1995-1998; Staff Judge Advocate, SPMAGTF Caribbean, 1993-1994; Trial Counsel, 2d Legal Services Support Section, 2d FSSG, Camp Lejeune, North Carolina, 1992-1993 and 1994-1995. The views expressed in this article are my own and do not necessarily reflect the views or policy of the Department of Defense (DOD) or the U.S. Marine Corps. I would like to thank Mr. W. Hays Parks, LtCol Michael C. Jordan, USMC, Major Cody M. Weston, USMC, and Major Alton L. Gwaltney, U.S. Army, for their comments and assistance in preparing this article. Any errors or omissions remain my own.

shot from one of the teams will initiate the raid on the building. The raid force, wearing black jumpsuits with no indicia of rank, service, or nationality, launches by helicopter into an insert point, and then moves to an attack position just off the objective. With perfect synchronization, a reconnaissance team sniper in civilian clothing engages an unsuspecting terrorist, and the raid force rushes in to complete the assault. The other reconnaissance teams, still in civilian clothing, provide overwatch and a base of fire for the raid force.

I. Introduction

Current U.S. operations in Afghanistan against the war on terrorism highlight the increased role special operations forces will likely play in future conflicts. The above fictional scenario is typical of a mission that special operations forces train for, and may be called on to perform, in today's world-environment. This scenario raises some important law of war (LOW) considerations for U.S. forces. The LOW delineates criteria that combatants must meet to gain prisoner of war (POW) status, and it obligates combatants to distinguish themselves from civilians.2 Further, the LOW limits the conduct that combatants can engage in while dressed in civilian clothing, violations of which may result in a loss of POW status as well as disciplinary action against the combatants and their superiors.3

First, this article briefly discusses the two types of armed conflict and how the type of armed conflict determines which body of the LOW applies. Next, the article examines the issue of POW status, and how obtaining this coveted status is directly related to the LOW principle of distinction and the wearing of a uniform or some other fixed identifying emblem. In sections VI and VII, this article examines the conduct of military operations in civilian clothes, and how this conduct could result in a LOW violation (perfidy) or the loss of POW status (spying) depending on the type of conduct engaged in. Finally, this article examines the Supreme Court case, Ex parte Quirin,4 and how the Court's holding, though contra-2. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 4(A)(...

See the full content of this document

---