The preceding comments are offered to show that the wearing of civilian attire by partisans or military personnel in Special Forces units or in the SOE or OSS was neither unique, occasional, nor limited in time and space. In the examples listed in the Appendix, it is clear that the wearing of civilian attire or non-standard uniform (and, in some cases, enemy uniform) was a deliberate act based upon a decision made at the highest levels of government. State practice provides several points for fine-tuning a general principle:
First, treacherous killing involves more than wearing or fighting in civilian clothing. Colonel Lawrence wore indigenous attire while leading the Arab uprising against the Ottoman Empire in the Hejaz Province of Arabia (Syria) in 1916. Fighting in large, armed groups against the Turkish Army, his actions parallel those of Coalition Special Forces aligned with Northern Alliance and Southern Alliance forces in Afghanistan, suggesting a nuance to the law of war principle of distinction: An armed military group recognizable at a distance and readily identifiable to the enemy by its size and other characteristics, even when wearing indigenous attire with or without distinctive devices, is acting lawfully.
Second, non-standard uniforms or indigenous attire may be adopted for practical rather than perfidious reasons. The British/Commonwealth Long Range Desert Group (“LRDG”), operating behind enemy lines in North Africa from 1940–1943, adopted the kaffiyeh and agal as a standard part of their uniform for utilitarian purposes, for example. The LRDG wore native sheep or goatskin coats to ward off the nighttime desert cold, as did British and US Special Forces operating behind Iraqi lines in the 1991 Coalition effort to liberate Kuwait. Wear of the latter by the LRDG served partially as a ruse against casual observation, such as by enemy aircraft. However, their identity clearly was recognizable at a distance by enemy ground forces.
Third, law of war compliance with something as simple as wearing a distinctive device may not be practical where the enemy is known to punish rather than reward compliance. For example, immediately prior to D-Day (June 6, 1944), British air-delivered supplies included armbands for partisan and supporting Special Forces’ use once Allied conventional forces returned to the continent. However, distinctive emblem wear was viewed with skepticism in light of Hitler’s Commando Order denying quarter to any partisans or Special Operations Forces.
Fourth, perfidy requires mens rea, that is, the donning of civilian attire with the clear intent to deceive. A group of alert, fit young men, heavily and openly armed, surrounding an individual in military uniform, and themselves surrounded by host nation military personnel in uniform, clearly are a personal protection detail, and are not attempting to mask their status nor gain an advantage over some unsuspecting enemy soldier. The law of war regards a uniform as the principal way in which conventional military forces distinguish themselves from the civilian population in international armed conflict.
State practice (including US practice), treaty negotiation history, and the views of recognized law of war experts reveal (a) that the law of war obligation is one of distinction that otherwise has eluded precise statement in all circumstances; (b) there is no agreed definition of uniform; (c) the uniform “requirement” is less stringent with respect to Special Forces working with indigenous forces or executing a mission of strategic importance; and (d) a law of war violation occurs only where an act is perfidious, that is, done with an intent to deceive, and the act is the proximate cause of the killing, wounding or capture of the enemy.
My review of state practice found no enforcement by a government against its own personnel. [129]
[129] The inevitable reaction of some would be to suggest new legislation beyond the prohibition of perfidy, or to make any act of perfidy a Grave Breach. History shows that successful means and methods of warfare elude efforts at prohibiting them. See W. Hays Parks, Making Law of War Treaties: Lessons from Submarine Warfare Regulation, in Michael N. Schmitt, ed, International Law across the Spectrum of Conflict: Essays in Honor of Professor L.C. Green on the Occasion of his Eightieth Birthday, 75 International Law Studies 339 (US Naval War College 2000).
Enemy combatants captured in flagrante delicto were prosecuted as spies rather than for law of war violations, with the exception of Ex parte Quirin and the unsuccessful post-World War II US prosecution of SS-Obersturmbannführer Otto Skorzeny.
In international armed conflict, the wearing of standard uniforms by conventional military forces, including special operations forces, is the normal and expected standard. Wearing civilian attire or a non-standard uniform is an exception that should be exercised only in extreme cases determined by competent authority.
In international armed conflict military necessity for wearing non-standard uniforms or civilian clothing has been regarded by governments as extremely restricted. It has been limited to intelligence collection or Special Forces operations in denied areas. No valid military necessity exists for conventional military forces, whether combat (combat arms, such as infantry, armor or artillery), combat support (such as Civil Affairs), or combat service support personnel to wear non-standard uniforms or civilian attire in international armed conflict.
The codified law of war for international armed conflict does not prohibit the wearing of a non-standard uniform. It does not prohibit the wearing of civilian clothing so long as military personnel distinguish themselves from the civilian population, and provided there is legitimate military necessity for wearing something other than standard uniform. The generally recognized manner of distinction when wearing something other than standard uniform is through a distinctive device, such as a hat, scarf, or armband, recognizable at a distance.
Violation of the law of war (perfidy) occurs when a soldier wears civilian clothing - not a non-standard uniform - with intent to deceive, and the deception is the proximate cause of the killing, wounding or capture of the enemy. Perfidy does not exist when a soldier in civilian attire or non-standard uniform remains identifiable as a combatant, and there is no intent to deceive.
Discussion of the issue raises an appearance of a double standard in considering Taliban militia/al Qaeda (in Afghanistan) or Saddam Fedayeen (in Iraq) wear of civilian clothing while justifying SOF wear of Western civilian attire or indigenous attire. A “double standard” exists within the law of war for regular forces of a recognized government vis-à-vis unauthorized combatant acts by private individuals or non-state actors. The issue was complicated by the unique nature of operations in Afghanistan, that is, counter-terrorist operations against non-state actors in a failed state, and the increased role of NGOs in a non-linear combat environment.
The law of war principle of distinction cannot be taken lightly. The standard military field uniform should be worn absent compelling military necessity for wear of a non-standard uniform or civilian clothing. Military convenience should not be mistaken for military necessity. That military personnel may be at greater risk in wearing a uniform is not in and of itself sufficient basis to justify wearing civilian clothing. “Force protection” is not a legitimate basis for wearing a non-standard uniform or civilian attire. Risk is an inherent part of military missions, and does not constitute military necessity for wear of civilian attire. But the law of war requirement to wear a complete, “standard” uniform is not as absolute as some recently suggested.
Part II of answer to Niel's question - intro
Originally Posted by davidbfpo
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