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Thread: Is it time for psuedo operations in A-Stan?...

  1. #1
    Council Member jcustis's Avatar
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    Default Is it time for psuedo operations in A-Stan?...

    ...or something approximating it, to allow us to be both faster at the intel collection cycle, and more precise once we go kinetic.

    What does the Law of War say about this, considering we'd be pitted against AQ in the process?

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    Default Pseudo-terrorist operations ...

    as exemplified here - I presume.

    Been ruminating about that topic (the pseudo-irregular combatant vs the irregular combatant) myself. A bit complicated, I fear, since the theory and practice as to the irregular combatant has not been well explored. Add "pseudo" to that and you are on the cutting edge.

    Since there are quite a few historical examples out there, discussion of hypotheticals based on them should not be an OpSec issue.

    Basic Wiki stuff is here.

    You come up with some interesting questions. The one about sheep-counting kept my pool team occupied for a while.

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    Until 5minutes ago, I never knew what Pseudo Operations were but I’ve been in favor of the concept since 9/12/01. Thanks for the education; I especially enjoyed the story about Srgt Herman Hanneken.

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    Council Member Ken White's Avatar
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    Default The real question is what will most in the

    US and in particular, most in the US Congress, think about the idea when it comes out that we have done that. It will come out, it always does...

    I don't think the law has nearly as much bearing on the inadvisability of that on any significant scale as the factor I cited. Nor do I think a broad discussion of the techniques and effort on an open board is particularly wise.

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    Council Member William F. Owen's Avatar
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    Default Pseudo and "Covert" are different things

    Pseudo or "Counter-gang" operations have been part of the majority of the UK COIN ops in the 20th century.

    The problem is that Counter-gang operations are not just one type of op. They are essentially HUMINT, with a kinetic end-state, but when and where has to be judged very carefully.
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    Council Member Cavguy's Avatar
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    Quote Originally Posted by William F. Owen View Post
    Pseudo or "Counter-gang" operations have been part of the majority of the UK COIN ops in the 20th century.

    The problem is that Counter-gang operations are not just one type of op. They are essentially HUMINT, with a kinetic end-state, but when and where has to be judged very carefully.
    Not exactly Kitson's pseudo-gangs, but why haven't we begun an indigenous force consisting of defected/captured former insurgents willing to switch sides? Seems to have a successful track record in the past.

    The Awakening/SoI movement was something along these lines, but most SoI's weren't former insurgents.

    Is there a legal prohibition in the past years that keeps this from happening?
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    Council Member jcustis's Avatar
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    Not exactly Kitson's pseudo-gangs, but why haven't we begun an indigenous force consisting of defected/captured former insurgents willing to switch sides? Seems to have a successful track record in the past.
    That's just it, they were trmendously successful in the past when applied with the appropriate degree of C2 and the JOC level, in concert with a well-balanced striking arm, and tied in with the paramilitary law enforcement arm.

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    Default I'm off to bed now,

    and will think about this tomorrow. I think serious thought should be given to Ken's points - PR and OpSec. Should and can we do this (with current TTPs) seems unwise to me also.

    Was the Marine operation in Haiti "legal" - and what would be its repercussions today - is a narrow type of discussion that might be useful.

    Thoughts by others ?

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    Council Member jcustis's Avatar
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    I've opened the comm link among the moderators, and I suspect there will be a balanced, prudent discussion shortly which will offer the way ahead.

    You come up with some interesting questions. The one about sheep-counting kept my pool team occupied for a while.
    And yes, I have a thirst for knowledge about the often odd and curious. The appetite often ends up leaving me with more on my plate than I can realistically consume. But at least I already know to not rely on a life jacket to ward off bullets.

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    Council Member AmericanPride's Avatar
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    Quote Originally Posted by Cavguy
    Not exactly Kitson's pseudo-gangs, but why haven't we begun an indigenous force consisting of defected/captured former insurgents willing to switch sides?
    I wonder about the practicality of such a force in a country whose instabilities have historically been driven by frictions among clan/ethnic frictions (with a healthy dose of foreign interference). Also --- didn't we, at least indirectly, stand up a similar irregular force in Afghanistan before in order to combat the Soviet Union? The problems I forsee are to which locals is the transference of such skill sets, and what guarantees can we put in place that will alter the basic power relationships in the country in such a way that the our new friends do not become the next in a long line of unpopular central governments wielding power in a closed political system? The Taliban is dominated by Pashtuns, so I imagine that's who'd we need to recruit. From which clan? And -- how will the non-Pashtun factions view the (further) strengthening of Pashtun power?
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    Council Member jcustis's Avatar
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    For follow-on replies, let's stay clear of discussing TTP that may or may not be ongoing or planned, and focus on the LoW implications. That was the thrust of the question for the most part...

    Could we do it? What legal concerns would there potentially be? Is it moral?

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    Moderator Steve Blair's Avatar
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    Operations of this sort were common during the Civil War, and surfaced to one degree or another on the Frontier both before and after the war. The outcomes from the Civil War are pretty well known, but those on the Frontier less so.

    I've seen some stuff that indicates that the major scout recruiting efforts tended to exacerbate any existing tensions and/or hostilities between the groups in question. The Apache might be the most popularly-known, but the Army's use of Tonkawa scouts in Texas certainly stirred up factions of the Comanche and Kiowa who might have been easier to deal with otherwise. There are other examples of misidentification of camps which might have been caused by tribal or clan rivalries.

    In most cases Indian auxiliaries didn't operate on their own, but these issues would have surfaced no matter how they operated. At the time no one discussed the moral or legal issues of using them, but the same thing during the Civil War did tend to stir popular passions (both for and against such operations).
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    Default Good one ...

    from jc..
    But at least I already know to not rely on a life jacket to ward off bullets.
    As to the Laws of War, a good place to start is with Wilf's comment:

    Pseudo or "Counter-gang" operations have been part of the majority of the UK COIN ops in the 20th century.

    The problem is that Counter-gang operations are not just one type of op. They are essentially HUMINT, with a kinetic end-state, but when and where has to be judged very carefully.
    Let's take two generic situtions: (1) Individual infiltration of the enemy group (for HUMINT purposes); and (2) Group infiltration of the enemy territory, and perhaps into an enemy group, for HUMINT, ISR, kinetic "disruptions", etc.

    The first situation is easy. The individual is a spy. Being a spy is not a violation of the LoW; but, that status removes the protection afforded regular combatants. The spy is not charged with war crimes, but with violations of the enemy group's domestic law.

    The second situation is more complex since the infiltrating group may consist of (pre-infiltration): (1) all regular combatants; (2) some regular combatants, some irregular combatants; and (3) all irregular combatants. The LoW outcome will very much depend on the facts - the "law of strategems". The worst case scenario is that the regular combatant will lose combatant immunity. The bottom line is that the status of a pseudo-irregular is less harsh than that of a spy.

    Now, when a client asks me a complicated legal question (requiring a great deal of legal research), I first ask myself if the answer will make a significant difference in the client's particular situation. I then ask the client (if I answered my own question negatively) if he (or she - PC) wants to rack up a large legal bill to answer what is (for him or her) a hypothetical question.

    As I understand AQ-Taliban and associated groups (having done some research on them), they do not have much (if any) respect for combatant immunity; and that you are likely to get your head lopped off, regardless of your costume or what you are doing. I've had an open offer going for about 6 months for anyone to tell me (and provide evidence) that AQ-Taliban and associated groups accept and apply the GCs. So far, no takers.

    So, as a practical matter in the AQ-Taliban context, I have some agreement with Ken that LoW is not the most pressing question.

    ---------------------------
    I've left out citations of legal authorities for what I've said above. They are based on a number of authorities (a long list), but the down and dirty can be found in FM 27-10, THE LAW OF LAND WARFARE (1956, with Change 1, 1976).

    The Law of Land Warfare, in codified form, derives in large measure from the US Lieber Code of 1863. Not a long read; and tells you how the North handled an insurgency in legal terms.

    The classic article about irregular combatants is the 1959 JAG Treatise, A TREATISE ON THE JURIDICAL BASIS OF THE DISTINCTION BETWEEN LAWFUL COMBATANT AND UNPRIVILEGED BELLIGERENT (JAG School 1959).

    Here are a couple of words of wisdom from its introduction:

    A noncombatant [3] who fights can be punished with death. [4]

    3. A noncombatant is a person whom both sides on the basis of experience can reasonably expect will not actually engage in overt acts of war. The word can only be defined to the satisfaction of both sides when nations of the same cultural heritage are at war. Then, noncombatant is defined by traditional examples which have meaning to both sides. In most western civilizations all persons not in the fighting forces and some, such as physicians are traditionally thought of as noncombatants. This is the sense in which the word is used here.

    4. FM 27-10, The Law of Land Warfare, Jul. 1956, paras. 80, 81, 82.
    In current US law (under development - see War Crimes thread), a noncombatant who fights will be treated under Common Article 3 of the GCs, as regulated by the US AUMF which controls the armed conflict.

    The 1959 JAG Treatise also defines "irregular combatant", "irregular" and "irregular warfare":

    "Irregular combatant" and "irregular" are used hereafter to designate all those combatants who are not an integral, regularly constituted part of the conventional military establishment of a country. This is convenient and avoids the difficulties inherent in varying meanings of the multitude of terms normally used. Thus, "Partisans" in the American Revolutionary War were privately supported, regularly constituted units of the Continental Army, but the word has an entirely different meaning when used in connection with Tito's Yugoslav Partisans in World War II. Any attempt to say that "Partisans" are, or are not, legal combatants is sure to lead to confusion.
    .....
    Irregular warfare is now a major strategical consideration. The United States Army has shown increased interest in this type of warfare. [citing, i.a., FM 31-21, Guerilla Warfare and Special Forces Operations (1958, rev. 1961) - the FM 3-24 of its time; 259 pp. in its 1961 iteration]. There are many factors which may lead to increased use of irregulars in future wars.
    The 1959 JAG Treatise was very much influenced by FM 31-21, Guerilla Warfare and Special Forces Operations (1958, rev. 1961), which is online in its 1961 iteration (also my hardcopy).

    So, as I am using the term "irregular", I am using it in the 1959 sense (as defined above) - and not in terms of the current buzzword.

    The 1959 JAG Treatise is a great read - more historical and operational than legal. It asks many questions (and provides some answers) that are today relevant to combat soldiers and Marines.

    --------------------------
    from jc...
    What legal concerns would there potentially be? Is it moral?
    I like this question because it was always asked by a good client (an OSS MAJ back in his day) after I told him what the legal options were: "But, are they moral and ethical ?" So, then, on to a philosophical discussion.

    I'll refrain from that here, because the ethics and morals that are important are not mine, but those of the serving officers and enlisted who have to make the decisions.

    ----------------------------
    There are some PR issues that should be discussed. One thought I have is not to make a pseudo-irregular program covert. Simply announce that we are going to do it - obviously in general terms - and see what flak actually develops. Even if the program never got off the ground, the announcement could have a disinformatrion effect on Violent Non-State Actors. Just a thought.

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    Council Member jcustis's Avatar
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    There are some PR issues that should be discussed. One thought I have is not to make a pseudo-irregular program covert. Simply announce that we are going to do it - obviously in general terms - and see what flak actually develops. Even if the program never got off the ground, the announcement could have a disinformatrion effect on Violent Non-State Actors. Just a thought.
    And that, sir, is one insightful thought.

    Thank you for the contribution. This is just the sort of framework I was thinking in. If we are going to master IW/UW warfare and defeat a very cunning and durable opponent, are pseudo-operations a tool that apply?...I think there is plenty of merit to look deeper.

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    Former Member George L. Singleton's Avatar
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    Default Great idea!

    Concur. Damned smart thinking. Go for it.

    Quote Originally Posted by jcustis View Post
    And that, sir, is one insightful thought.

    Thank you for the contribution. This is just the sort of framework I was thinking in. If we are going to master IW/UW warfare and defeat a very cunning and durable opponent, are pseudo-operations a tool that apply?...I think there is plenty of merit to look deeper.

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    If we are going to master IW/UW warfare and defeat a very cunning and durable opponent, are pseudo-operations a tool that apply?...I think there is plenty of merit to look deeper.
    As I mentioned before, I think the unique complexity of Afghanistan's internal politics would reduce the long-term effectiveness of this kind of operation by driving (another) wedge between the various factions of the country. Foreign sponsorship leveraged by internal factions against their rivals is, IMO, one of the country's consistent historical problems, and this would be another opportunity for that to occur. While it would possibly defeat the Taliban, it would be unlikely to usher in a period of stability since it does not address the fundamental political-economic conditions of the country.
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    Default More recent resources - uniforms

    Here are three more recent, open-source legal articles which cover the non-use of regular uniforms by special ops types:

    Legal Lessons Learned, From Afghanistan and Iraq, Volume I, Major Combat Operations (11 September 2001 - 1 May 2003), Center for Law and Military Operations, The Judge Advocate General’s Legal Center & School, United States Army, Charlottesville, Virginia (1 Aug 2004), pp.63-69. (Link to .pdf)
    This is a very good summary (in the 10 pages out of 454), which presents a somewhat conservative (risk averse) take on the issues of regular force folks posing as irregulars; although it does acknowledge the existence of less risk averse approaches.

    W. Hays Parks, Special Forces’ Wear of Non-Standard Uniforms, 4 CHI. J. INT’L. L. 493 (2004) (.pdf).

    Major William H. Ferrell, III, No Shirt; No Shoes; No Status: Uniforms, Distinction, and Special Operations in International Armed Conflict, 178 MIL. L. REV. 94, 99 n.17 (2003) (.pdf).
    Both law review articles by Marine officers - I will read through these later tonite.

    Happy reading & cheers,

    Mike

    You all are very welcome for the kind words.

    PS: AP - pseudo-irregular actions are not simply a matter of leveraging internal factions against their rivals. In fact, faction fighters are probably not the forces you want to use (cf., Dalton Fury and his Afghan "allies"). The HH in Haiti venture was a regular force mission (link in my first post; you'll find all kinds of ancient USMC history on that and similar ops). This type of action has little to do with Nation-Building, other COIN efforts or FID - more with a special kind of HUMINT and DA as Wilf states.
    Last edited by jmm99; 05-15-2009 at 11:30 PM. Reason: add PS

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    Default Part I of an answer to Niel's question ...

    from Cav
    Is there a legal prohibition in the past years that keeps this from happening?
    Let's take MAJ Farrell's 2003 article first - but not as the final word. It is a good example of the risk averse approach, which likely would shiver the timbers of whatever general is put on the spot to approve a pseudo-irregular operation.

    Here is the problem presented by MAJ Farrell:

    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 rconnaissance 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 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.
    MAJ Farrell's school solution (footnotes omitted) is as follows:

    Returning to the opening scenario of this article, recall that there are two groups of U.S. forces, the reconnaissance teams and the raid force.

    The raid force appears to be in compliance with the applicable provisions of the LOW. They are wearing black jumpsuits typically worn by U.S. special operations forces, and this is a fixed, distinctive uniform or sign. They are all wearing the same thing, and the jumpsuit is fixed in that it is not easily removed. Unless the local population of Country X wears black jumpsuits on a regular basis, black jumpsuits are sufficient to distinguish the raid force from the local population as required by Article 44(3) of Protocol I. Since the raid force members belong to a regular armed force that meets the four criteria required under GPW Article 4, they are combatants and entitled to participate directly in hostilities under Article 43 of Protocol I. Further, because the black jumpsuit is sufficient under Article 44(3), members of the raid force do not face any issues regarding perfidy or espionage. They have complied with the quid pro quo by properly distinguishing themselves, and if they are captured, they are entitled to POW status as members of a regular armed force under GPW Article 4. Additionally, Quirin has no impact because the members of the raid force are wearing uniforms when they enter enemy territory.

    The members of the reconnaissance teams are an entirely different story. They are members of a regular armed force of a party to the conflict. As such, they are required to distinguish themselves from the civilian population while engaging in an attack and in military operations preparatory to an attack in accordance with Article 44(3). As discussed previously, the phrase “military operations preparatory to an attack” likely includes any movement toward a place where an attack is to be launched, which in this case, encompasses the movement of the reconnaissance teams toward their overwatch positions. Thus, under Article 44(3), the reconnaissance teams are required to distinguish themselves not only while acting as a base of fire and overwatch during the raid, but also when moving toward their overwatch positions. Their failure to do this is a violation of Article 44(3) of Protocol I.

    The reconnaissance teams will also violate Article 37(1)(c) if they kill, wound, or capture any of the members of Country X’s armed force. Article 37(1)(c) prohibits the killing, injuring, or capturing of an adversary while feigning civilian, noncombatant status. Even though the United States has not ratified Protocol I, it considers Article 37 as reflective of customary international law. The reconnaissance teams are feigning civilian, noncombatant status by remaining dressed in civilian clothing while providing a base of fire and overwatch during the conduct of the raid.

    Therefore, the reconnaissance teams would be guilty of perfidious conduct in violation of Article 37(1)(c) if they kill, injure, or capture any member of Country X’s armed force.

    Articles 86 and 87 of Protocol I place an affirmative duty on parties and commanders to prevent and punish breaches of the LOW. If commanders know, or should have reason to know, that a breach of the LOW will take place, they must stop it. If they fail to stop it, they are also guilty of a violation of the LOW. Department of Defense Directive 5100.77 and CJCSI 5810.01 place similar obligations on U.S. commanders.

    Since the commander of this mission should know that the reconnaissance teams will violate both Article 44(3) and Article 37(1)(c), he cannot let this part of the mission take place. If he does, he also violates the LOW and is subject to sanctions.

    The members of the reconnaissance teams may also face a charge of espionage if they are captured before the raid takes place. They are combatants gathering or attempting to gather information in enemy territory, and fall under the provisions of Article 46 of Protocol I. As mentioned earlier, spying is not a violation of the LOW. Combatants, however, caught spying are not entitled to POW status and may be prosecuted by the capturing nation under its domestic law for espionage, as well as for any pre-capture warlike acts. A conviction for espionage traditionally results in a death sentence.

    Ex parte Quirin further restricts the mission of the reconnaissance team. The Quirin Court held that combatants who enter enemy territory while wearing civilian clothing violate the LOW, whether they intend to engage in espionage or a direct action mission. Further, this is an instantaneous offense, subject to sanction as soon as combatants cross into enemy territory. The Quirin holding specifically contradicts Articles 44(2), 44(3), and 46 of Protocol I, but since the United States has not ratified Protocol I, it is bound by Quirin.

    Thus, the reconnaissance teams cannot enter Country X dressed in civilian clothing. While they could enter Country X to gather information under Article 46 of Protocol I, Quirin finds this is a LOW violation. Under Articles 86 and 87 of Protocol I, U.S. commanders must prohibit the reconnaissance teams from entering the territory of Country X while wearing civilian clothing because, according to Quirin, this is a LOW violation.

    This article attempts to demonstrate the difficulty and intricacy of this area of the LOW. What constitutes an appropriate uniform and when combatants must distinguish themselves, continue to be areas of disagreement among the parties to Protocol I as well as the commentators. For U.S. forces, Ex parte Quirin further complicates this area, as this case takes a more restrictive view of the LOW. The holding in Quirin has certainly not kept pace with the LOW as evidenced by Protocol I. Further, Quirin is suspect considering its assertion that spying is a violation of the LOW, when clearly it is not. Until the United States ratifies Protocol I or another treaty that supercedes the Hague Regulations, or until State practice sufficiently changes the customary international law on which Quirin relied, Quirin remains binding on the United States.
    Comment:

    1. The conclusion is heavily based on 1977 Additional Protocal I to the GCs - not accepted by the US; except as to some general principles of I Law.

    2. The 1942 Quirin case does support the conclusion that some acts are war crimes; but FM 24-10 does not support that conclusion:

    74. Necessity of Uniform

    Members of the armed forces of a party to the conflict and members of militias or volunteer corps forming part of such armed forces lose their right to be treated as prisoners of war whenever they deliberately conceal their status in order to pass behind the military lines of the enemy for the purpose of gathering military information or for the purpose of waging war by destruction of life or property. Putting on civilian clothes or the uniform of the enemy are examples of concealment of the status of a member of the armed forces.
    Loss of POW status and combatant immunity - yes; war crimes - no.

    3. If the acts of the recon team are war crimes, they are attributed to their superiors, etc. - not only under the UCMJ, but also under the Federal War Crimes Act (under which, no one has been prosecuted). Hence, a superior could be charged under MAJ Farrell's theory and solution. Cf., Bob Baer was investigated, but not charged, because of alleged CIA actions in Iraq.

    Maybe, I can report on COL Park's more nuanced article tomorrow night.
    Last edited by jmm99; 05-16-2009 at 03:56 AM.

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    Default Part II of answer to Niel's question - intro

    I should have added, in the prior post, that MAJ Farrell's and COL Parks' articles are both confined to armed conflicts of an international character (between states, as in the initial stage of OIF; or in an occupied state, as in the initial stage of OEF - where the US was not the occupier !).

    They do not, as such, deal with the proper dress standard in armed conflicts of a non-international character. COL Parks, however, makes his bottom-line very clear as to both non-state actors and terrorists (pp.50-51):

    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 requires military units and personnel to distinguish themselves from the civilian population in international armed conflict. [130]

    [130] Stating the obvious, special operations missions outside international armed conflict, such as counterterrorism, are not subject to these legal obligations.
    Both articles (and the Drone article linked at the end of this post) were written in 2003-2004. They did not have the advantage of seeing the development of Common Article 3 law from Hamdan in 2006 through the present series of detainee cases.

    ----------------------------------------
    If MAJ Farrell's article is arithmetic, COL Parks' article is calculus, reflecting his greater experience with the subject matter (see pp.1-3); e.g., the following:

    At the US Special Operations Command (“USSOCOM”) annual Legal Conference, May 13–17, 2002, the judge advocate debate became intense. While some attendees raised questions of “illegality” and the right or obligation of special operations forces to refuse an “illegal order” to wear “civilian clothing,” others urged caution. [3] The discussion was unclassified, and many in the room were not privy to information regarding Operation ENDURING FREEDOM Special Forces, its special mission units, or the missions assigned them.

    [3] In the debate that ensued over the next year, it was my observation that those most strident in their criticism were most distant from Special Forces ground operations or were judge advocates not serving with or familiar with the missions of Special Forces units.
    Parks presents a framework for considering the legality of an operation using civilian clothing or non-standard uniforms (the article includes as much operational history as law; pagination is from .pdf file):

    I. What are the facts?
    (pp.4-12; pp.4-6 cover combat facts; the balance concerns the CA-NGO problem)

    II. What are the legal issues?
    (p.13, the three below)

    A. Is it lawful for combatants to wear civilian clothing or nonstandard uniforms in combat?

    B. If so, are there legal or other considerations in use of either?

    C. Are there any unique law of war considerations, such as risks, a commander should balance in making his decision?

    III. What is the nature of the armed conflict and its armed participants?
    (pp.13-16, considering these two facets)

    A. Was there something unique about Operation ENDURING FREEDOM with respect to application of the law of war?

    B. If so, how would application of the law of war differ?

    IV. What is the relevant law of war?
    (pp.16-22, general discussion GCs & 1977AP)

    A. What is the applicable treaty law and legislative history?
    (pp.23-32, military wear of uniforms, with emphasis on rises vs perfidy).

    B. What is state practice, including court decisions?
    (pp.32-47, historical survey of pre-GC irregular operations by regular forces)
    Part IVB is supplemented by the Appendix (pp.53-68) tabulating a number of operations (in international conflicts) involving non-standard uniforms or civilian clothing from 1904-1991.

    The 16-17 Oct 1944 Ranger infiltration and direct action operation into Aachen, wearing Wehrmacht uniforms, during the Siegfried Breakthrough is about as close to the line as you would want - story in Charles Whiting, Bloody Aachen, pp.143-146, cited by Parks.

    The operations are referenced to sources; Parks' article is a good bibliography.

    ---------------------------------------
    See also, Major Robert J. Drone, USAF, Nontraditional Uniforms Do Accord Prisoner of War Status for Special Operations Forces (2003), to be found here.
    Last edited by jmm99; 05-17-2009 at 03:25 AM.

  20. #20
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    Default Part II of answer to Niel's question - conclusion

    COL Parks' conclusion (applicable to international conflicts - his opinion of near "no-holds barred" in non-state actor or terrorist conflicts is expressed above in the intro) is generally permissive to pseudo-irregular operations (pp.47-51; footnotes omitted - they are interesting):

    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.
    It is hard to beat COL Parks' article and presentation re: international conflicts.

    My only gripe is that he really doesn't "overrule" 1942 Ex Parte Quirin to my satisfaction. I (like him) think it was wrongly decided in finding that wearing civilian clothing was a war crime; but that it also adopted an unconstitutional rule allowing undefined common law crimes - for a number of exotic technical grounds (none having anything to do with the issues here). So far, SCOTUS hasn't expressly overruled Quirin.

    Consideration of present day pseudo-irregular operations requires a review of Common Article 3 law develoipment since 2006 - which (IMO) is even more favorable to pseudo-irregular operations. That would be the next round, but I've already put a lot on your plates with these articles.

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