No Shirt, No Shoes, No Status: Uniforms, Distinction, and Special Operations in International Armed Conflict [open pdf - 228KB]
Current U.S. operations in Afghanistan against the war on terrorism highlight the increased role special operations forces will likely play in future conflicts. In this sense, Law of war (LOW) must be considered by 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. 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. 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, Exparte Quirin, and how the Court's holding, though contradictory to the current state of the LOW regarding distinction and spying, is nevertheless binding on the U.S. armed forces.
The Judge Advocate General's Legal Center and School: http://www.jagcnet.army.mil/MilitaryLawReview
Military Law Review (Winter 2003), v.178, p.94-140