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

[jmm99]

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.