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

• Author: Major William H. Ferrell, Iii
• Pages: 04

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.

1. 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)(1), 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GPW].

   3. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, art. 37(1)(c), 1125 U.N.T.S. 3 [hereinafter Protocol I].

   4. 317 U.S. 1 (1942).

   dictory to the current state of the LOW regarding distinction and spying, is nevertheless binding on the U.S. armed forces.

2. Type of Armed Conflict

   When analyzing a question under the LOW, one must first determine whether the armed conflict in question is international or internal because the type of conflict determines which body of the LOW applies. International armed conflicts, defined in Common Article 2 of the Geneva Conventions of 1949,5 trigger the entire body of the LOW, whereas conflicts classified as internal, defined by Common Article 3 of the Geneva Conventions,6 do not. This article assumes that the United States is in an international armed conflict with Country X.7 As a result, the complete body of the LOW applies to the conflict, primarily the Hague Regulations,8 the four Geneva Conventions of 1949,9 and Protocol I.10

   5. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, art. 2, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GWS]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members, Aug. 12, 1949, art. 2, 6 U.S.T. 3217, 75 U.S.T.S. 85 [hereinafter GWS Sea]; GPW, supra note 2; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC]. Common Article 2 of the Geneva Conventions defines international armed conflicts as "all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them." Article 1(4) of (Protocol I) expanded the definition of international armed conflict to include "[a]rmed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self determination." Protocol I, supra note 3, art.1(4). The United States specifically disagrees with Article 1(4)'s expansion of Common Article 2. See Michael J. Matheson, Remarks in Session One: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U.

   J. INT'L L. & POL'Y 419, 425 (1987).

   6. Common Article 3 defines internal armed conflicts as "[c]onflicts which are not of an international character." GWS, supra note 5, art. 3; GWS Sea, supra note 5, art. 3; GPW, supra note 2, art. 3; GC, supra note 5, art. 3. A detailed discussion of the criteria for meeting the definition of internal armed conflict is beyond the scope of this article.

3. Status

   After determining the type of conflict, one must resolve the issue of status. Status is inextricably linked to all questions regarding the LOW because status determines the duties owed or owing to people or objects, or who or what may be lawfully targeted. For example, as discussed below, POWs are immune from prosecution for their lawful, pre-capture warlike acts (combatant immunity).11 Similarly, one may not target persons characterized as noncombatants or civilians as long as the noncombatants refrain from actively participating in hostilities.12 As the opening

   7. The conclusions of this article could change substantially if the scenario involved internal armed conflict. The DOD Law of War Program states that it is DOD policy to comply with the LOW "in the conduct of military operations and related activities in armed conflict, however such conflicts are characterized." U.S. DEP'T OF DEFENSE, DIR. 5100.77,

   DOD LAW OF WAR PROGRAM para. 5.3.1 (8 Dec. 1998) [hereinafter DOD DIR. 5100.77]. Chairman of the Joint Chiefs of Staff Instruction 5810.01A, Implementation of the DoD Law of War Program, likewise states:

   The Armed Forces of the United States will comply with the law of war during all armed conflicts, however such conflicts are characterized, and, unless otherwise directed by competent authorities, the US Armed Forces will comply with the principles and spirit of the law of war during all other operations.

   CHAIRMAN OF THE JOINT CHIEFS OF STAFF, INSTR. 5810.01B, IMPLEMENTATION OF THE DOD LAW

   OF WAR PROGRAM para. 4(a) (27 Aug. 1999) [hereinafter CJCSI 5810.01B]. While it is U.S. policy to comply with the spirit and intent of the LOW in all conflicts, exactly which principles are so fundamental under the LOW that the United States will apply as a matter of policy in all conflicts remains to be seen.

   8. Hague Convention IV Respecting the Laws and Customs of War on Land, Annexed Regulations, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539 [hereinafter Hague Regulations]. The United States considers the entire body of the Hague Regulations to be reflective of customary international law and binding on all parties, whether or not they are signatories. U.S. DEP'T OF ARMY...