Hostname: page-component-cd9895bd7-p9bg8 Total loading time: 0 Render date: 2024-12-25T07:01:47.741Z Has data issue: false hasContentIssue false
  • English
  • Français

Military uniforms and the law of war

Published online by Cambridge University Press:  27 April 2010

Toni Pfanner
Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Research Article
Information
International Review of the Red Cross , Volume 86 , Issue 853 , March 2004 , pp. 93 - 130
Copyright
Copyright © International Committee of the Red Cross 2004

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Myres, J. L. (ed.), The Evolution of Culture and Other Essays of the Late Lt-Gen. A. Lane-Fox Pitt-Rivers, Clarendon Press, Oxford 1906, p. 51Google Scholar.

2 Keegan, John, A History of Warfare, Pimlico, London, 1993, pp. 131–136Google Scholar.

3 Wright, Quincy, A Study of War, 2nd edition, University of Chicago Press, Chicago, 1965, pp. 145–151Google Scholar.

4 Keegan, op. cit. (note 2), p. 131.

5 The sanctions of the rules of war have been inadequate between peoples of similar civilizations, but observance of such rules has been almost entirely lacking in wars between different civilizations. Among the Greek city-states, for example, rules recognized in hostilities between them were considered inapplicable in war with barbarians. See: Wright, op. cit. (note 3), pp. 812–813.

6 According to Wright, op. cit. (note 3), p. 148.

7 Keegan, op. cit. (note 2), p. 267.

8 Keegan, op. cit. (note 2), pp. 188–217.

9 Cardini, Franco, La culture de la guerre, Xe–XVIIIe siècle, Gallimard, Paris, 1992, pp. 217–220Google Scholar.

10 See: “Evolution of the uniform”, War Planning and Training Division O.Q.M.G., USA, published in The Quartermaster Review, March-April 1928, also available at:

<http://www.qmfound.com/uniform_evolution.htm> (visited on 16 February 2004).

11 Peter F. Kopp, “Croix fédérale” in: Dictionnaire historique de la Suisse, available at: <http://lexhist.ch/externe/protect/textes/f/F10104.html> (visited on 16 February 2004).

12 See “Evolution of the uniform”, op. cit. (note 10).

13 Cardini, op. cit. (note 9), pp. 217–220.

14 See the photos of traditional but current uniforms at the end of this article.

15 Army Regulation 670–1 issued by the Headquarters Department of the Army on 1 July 2002, Washington DC, and effective as of 1 August 2002 (hereinafter “US Army Regulation 670–1”). The regulation can be found at: <http://www.usapa.army.mil/pdffiles/r670_1.pdf> (visited on 16 February 2004).

16 Chapter 7, Art. 1.a (Personal appearance policies) of US Army Regulation 670–1, op. cit. (note 15).

17 See Identification Friend or Foe (IFF), also called “Blue Force Tracking”. Self-inflicted casualties (“Blue-on-blue fire”), often referred to in the media as “friendly fire”, is a major problem in modern warfare.

18 See Curt Biberdorf, “Institute for Soldier Nanotechnologies opens”, available at: <http://www.dtic.mil/armylink/news/May2003/a20030528nanotechnologies.html> (visited on 16 February 2004).

19 Whereas many special tasks identified by armbands are listed in regulations, e.g. military police, gas I experts, photographers, and personnel protected under the Geneva Conventions, no provision for armbands is made in US Army Regulation 670–1 – op. cit. (note 15) – dealing with uniforms. See its Chapter 28, Art. 29.

20 See the State practice in Parks, W. Hays, “Special forces' Wear of Non-Standard Uniforms”, Chicago Journal of International Law, Vol. 4, No. 3, 2003, pp. 524–539 and 547–560Google Scholar.

21 The Iraqi head of State Saddam Hussein was captured on 11 December 2003 wearing civilian clothes and declared a prisoner of war by the American authorities owing to his function as Commander of the Iraqi Armed Forces. Earlier, in 1990, Panama's head of State Manuel Noriega surrendered in full military dress to the Americans and was recognized by an American tribunal on the same grounds as a prisoner of war. See: United States, United States of America v. Manuel Antonio Noriega, District Court for the Southern District of Florida, Decisions of 8 June 1990 / 8 December 1992, 746 F. Supp 1506 (1990) / 808 F. Supp. 791 (1992), reproduced in Sassòli, Marco and Bouvier, Antoine A. (eds.), How Does Law Protect In War?Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, International Committee of the Red Cross, Geneva, 1999, pp. 923–943Google Scholar.

22 In technologically highly sophisticated societies, some of those functions and personnel are “outsourced” and no longer come within the remit of the armed forces (e.g. weapons development, but also logistical and technical services).

23 In the fighting between religious groups in the Moluccas in Indonesia (1999–2001), for instance, Christian fighters wore red, Muslims white and partisans of the Sultan yellow headbands to distinguish themselves from each other during hostilities, whereas woman and children hid in the nearby mountains.

24 Sandoz, Yves, Swinarski, Christophe and Zimmerman, Bruno (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross/Martinus Nijhoff Publishers, Geneva, 1987, p. 542 (n. 1723)Google Scholar.

25 Dominican Republic, Military Manual (1980), p. 3; Netherlands, Military Manual (1993), p. 111–4 (see also Military Handbook (1995), p. 7–39); New Zealand, Military Manual (1992), para. 805(3); Sweden, IHL Manual (1991), Section 3.2.1.4, pp. 36; Switzerland, Basic Military Manual (1987), Article 26(1).

26 Australia (“normally”), Defence Force Manual (1994), paras. 512–513; Belgium (“customary rule”), Law of War Manual (1983), p. 20; Colombia (“normally”), instructors' Manual (1999), p. 16; Kenya (“customary”), LOAC (Law of Armed Conflict) Manual (undated), Précis No. 2, p. 8; Madagascar (“usually”), Military Manual (1994), Fiche No. 2-SO, para. A; South Africa (“normally”), LOAC Manual (1996), para. 26; UK (“usually”), LOAC Manual (1981), Section 3, p. 9, para. 2 and (“customary”) Section 3, p. 8, para. 1.

27 Israel, Manual on the Laws of War (1998), p. 38.

28 Australia, Defence Force Manual (1994), paras. 512–513; Cameroon, Instructors' Manual (1992), pp. 17 and 77; Croatia, LOAC Compendium (1991), p. 6; Germany, Military Manual (1992), para. 308; Hungary, Military Manual (1992), p. 17; Netherlands, Military Manual (1993), p. III-4 (see also Military Handbook (1995). PP. 7–39); New Zealand, Military Manual (1992), para. 805(3); Togo, Military Manual (1996), Fascicule I, p. 13; US, Air Force Pamphlet (1976), para. 3–2(b) (3) (see also Field Manual (1956), para. 61(a)(2) and US, Naval Handbook (1995), para. 5.3).

29 Benin, Military Manual (1995), Fascicule I, p. 12; Croatia, LOAC Compendium (1991), p. 6; France, LOAC Summary Note (1992), para. 1.2; LOAC Teaching Note (2000), p. 2; LOAC Manual (2001), p. 39; Italy, LOAC Elementary Rules Manual (1991), para. 2; Kenya, LOAC Manual (undated), Précis No. 2, p. 8. Madagascar, Military Manual (1994), Fiche No. 2-O, para. 2.

30 Colombia, Instructors' Manual (1999), p. 16; Kenya, LOAC Manual (undated), Précis No. 2, p. 8; South Africa, LOAC Manual (1996), para. 26.

31 Knut Ipsen however speaks of a “self-evident” (selbstverständlich) obligation enshrined in customary law to wear uniform in hostilities (see Fleck, Dieter (ed.), Handbuch des humanitären Völkerrechts, München, 1994, p. 65, n. 308)Google Scholar.

32 Art. 44 (7) of the Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (hereinafter “AP I” or “Additional Protocol I”); see also AP I, Art. 46 (2) (on spies and uniforms).

33 Artt. 63 and 83 of the Instructions for the Government of Armies of the United States in the Field, 24 April 1863, reprinted in Dietrich Schindler and Jiri Toman (eds.), The Laws of Armed Conflicts, Martinus Nijhoff Publisher, Dordrecht, 1988, pp. 3–23 (also known as the “Lieber Code”); Art. 23 (f) of the Regulations respecting the Laws and Customs of War on Land, annexed respectively to Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899 (hereinafter “1899 Hague Regulations”) and Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter “1907 Hague Regulations”); Art. 27 of the Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949 (hereinafter “GC III” or “Third Geneva Convention”); Art. 39 (1) and (2) AP I. See also AP I, Art. 37(1)(d) (on perfidy with regard to uniforms of the United Nations).

34 See the different wording in the 1907 Hague Regulations and the Third Geneva Convention of 1949 (below in the section on the armed forces and military uniforms).

35 Only Additional Protocol I requires a party to a conflict to notify the other parties to the conflict of the incorporation of paramilitary or law enforcement agencies such as police forces or gendarmerie into its armed forces: API, Art. 43(3).

36 See, however, Sandoz, Swinarski and Zimmermann (eds.), op. cit. (note 24), p. 566, n. 1776: “[It] is understood that the word “uniform” applied not only to a uniform in the conventional sense, but to any distinguishing sign which warranted that the activity in question had nothing clandestine about it.”

37 Art. 88 of the Lieber Code; Artt. 19 and 22 of the Brussels Declaration of 1874; Art. 24 of the Oxford Manual (The Laws of War on Land, Oxford, 9 September 1880); Art. 29 of the 1899 and 1907 Hague Regulations.

38 Art. 46 (2) “A member of the armed forces (…) shall not be considered as engaging in espionage, if, while so acting, he is in the uniform of his armed forces.”

39 Argentina, Law of War Manual (1989), para. 1.09(1), and Law of War Manual (1969), para. 2.009(1)); Australia, Commanders' Guide (1994), paras. 707 and 913; Canada, LOAC Manual (1999), pp. 3–4, para. 33; Ecuador, Naval Manual (1989), para. 12.8; Germany, Military Manual (1992), para. 321; Netherlands, Military Manual (1993), p. III-5; New Zealand, Military Manual (1992), para. 506(2); Nigeria, Manual on the Laws of War (undated), para. 31; Spain, LOAC Manual (1996), Vol. I, para, 1.4.a; US, Naval Handbook (1995), para. 12.8. See also Chile, Code of Military justice (1925), Articles 252–253.

40 The Malaysian trial judge ruled that two Indonesians claiming to be members of the Indonesian armed forces (but without uniform and identification papers) were not entitled to POW status. “It is not, however, stated that such members (of the armed forces) must at the time of their capture be wearing ‘a fixed distinctive sign recognizable at a distance’. International law, however, recognises the necessity of distinguishing between belligerents and peaceful inhabitants.” (House of Lords (Privy Council) on Appeal from the Federal Court, 1969, cited in Sassòli and Bouvier, op. cit. (note 21), p. 773.

41 Israel, Military Court at Ramallah, Kassem case, Judgement, 13 April 1969, reproduced in: Sassòli and Bouvier, op. cit. (note 21), pp. 806–811.

42 US Air Force Pamphlet (1976) para. 3. Cf. also Parks, op. cit. (note 20), pp. 493–560 and p. 516.

43 Israel's Manual on the Laws of War states: “it is prohibited to use civilians for the purpose of masking military movements or hiding among them. From this provision stems the soldiers' obligation to wear a uniform or identifying symbol to clearly distinguish them from civilians.” Israel, Manual of the Laws of War (1998), p. 38.

44 Pictet, Jean, The Geneva Conventions of 12 August 1949, Commentary, III Geneva Convention Relative to the Treatment of Prisoners of War, International Committee of the Red Cross, Geneva, 1960, p. 60Google Scholar; Bordwell, Percy, The Law of War between Belligerent: A History and Commentary, Fred B. Rothman & Co., Chicago, 1908, p. 232Google Scholar.

45 Mallison, Thomas and Mallison, Sally V., “The juridical status of irregular combatants under international humanitarian law of armed conflict”, Case Western journal of International Law, Vol. 9, 1977, p. 56/57Google Scholar; Pictet, op. cit. (note 44), p. 60.

46 See, however, United States of America vs. John Walker Lindh, Criminal case No. 02–37-A in the District Court for the Eastern District of Virginia, Alexandria Division (US government's opposition to the defendant's motion to dismiss count one of the indictment for failure to state a violation of the charging statute – combat immunity). The US government refused, inter alia, to consider the black turban of Taliban members as a distinctive sign.

47 See Baxter, Richard, “The duties of combatants and the conduct of hostilities (Law of the Hague)” in: International Dimensions of Humanitarian Law, UNESCO/Henry Dunant Institute, Paris/Geneva, 1988, p. 229Google Scholar.

48 ABC NEWS' correspondent John McWethy, who was with CIA operatives and 52 US Special Operations soldiers at Tora Bora, Afghanistan, does not recall them wearing any distinguishing scarves, hats or other items that would openly establish them as American soldiers, and reported that they wore local Afghan clothes and beards. Upon close examination, it was clear they were not Afghans, partly because of physical characteristics, boots and fancy weaponry, he says.

See <http://www.abcnews.go.com/sections/world/Primetime/iraq_asymetrico30411.htlm>.

49 Cf. Parks, op. cit. (note 20), pp. 493–560.

50 1907 Hague Regulations, Art. 1. The same wording was already contained in Art. 9 of the Project of an International Declaration concerning the Laws and Customs of War adopted at the Brussels Conference of 1874.

51 1907 Hague Regulations, Art. 1 (2).

52 The term “armed forces” used in article 3 contrasts well with the term “armies” used in article 1.

53 Art. 2 of the 1907 Hague Regulations.

54 See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, Section A, pp. 237–8 and 242. The POW Convention of 1929 simply referred to the 1907 Regulations: see Art. 1(1) of the Convention relative to the Treatment of Prisoners of War, Geneva, 27 July 1929.

55 GC III, Art. 135.

56 Pictet, op. cit. (note 44), p. 51 (on Art. 4 A.1 GCIII).

57 GC III, Art. 4 (c). See also: Clark, M. H. F., Glynn, T. and Rogers, A. P. V., “Combatant and prisoner of war status” in: Meyer, Michael A. (ed.), Armed Conflict and the New Law: Aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention, British Institute of International and Comparative Law, London, 1989, pp. 107–128Google Scholar. The authors speak of a “special non-combatant standing which is restricted to medical personnel and chaplains” (p. 110).

58 GC III, Art. 4 A. (3).

59 Pictet, op. cit. (note 44), p. 63 (on Art. 4 A.3). Whereas this rule was based on the specific case of the forces of General de Gaulle during the Second World War, it recently acquired renewed relevance in the armed conflict between Afghanistan and the United States. Like the large majority of States, the United States of America did not recognize the Taliban regime. In terms of the application of international humanitarian law, this does not matter, as the Taliban regime was undoubtedly the de facto government of Afghanistan in 2002.

60 See Artt. 9 and 10 of the Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission in 2001 and taken not of by the General Assembly of the United Nations on 28 January 2002, UN Doc. A/Res/56/83(2OO2). See also: Sassòli, Marco, “State responsibility for violations of international humanitarian law”, International Review of the Red Cross, No. 846, June 2002, pp. 401–434CrossRefGoogle Scholar; Jinks, Derek, “State responsibility for the acts of private armed groups”, Chicago Journal of International Law, Vol. 4, Spring 2003, pp. 83–95Google Scholar.

61 “These ‘regular armed forces’ have all the material characteristics and all the attributes of armed forces in the sense of subparagraph (1): they wear uniform, they have an organized hierarchy and they know and respect the laws and customs of war. The delegates to the 1949 Diplomatic Conference were therefore fully justified in considering that there was no need to specify for such armed forces the requirements stated in sub-paragraph (2)(a)(b)(c)(d).”, Pictet, op. cit. (note 44), p. 63 (on Art. 4 A. 3).

62 See: Doermann, Knut, “The legal situation of ‘unlawful/unprivileged’ combatants”, International Review of the Red Cross, No. 849, March 2003, pp. 45–74CrossRefGoogle Scholar. In the so-called “Case of the German Saboteurs”, the US Supreme Court heard the case of German sympathizers who landed by submarine in the US with a view to committing acts of sabotage. It stated: “By the Rules of Land Warfare our government has recognized those who during war pass surreptitiously from enemy territory into our own, discarding their uniform before entering for the commission of hostile acts, involving the destruction of life and property, have the status of unlawful combatant.” (Exparte Quirin (1942) 317 U.S.1).

63 Art. 1 of the 1899/1907 Hague Regulations.

64 GC III, Art. 4A.(2).

65 G.I.A.D. Draper, “The Legal Qualification of Belligerent Individuals” writes “Where a military occupation of enemy territory exists the existing protection accorded by Article 4 (A)(2) of the Geneva (POW) Convention is based upon conditions sufficiently stringent as to preclude any effective military resistance to the armed forces of the occupant.” (text on file with author). Similarly, the Israeli Military Manual says: “Undoubtedly, the conditions mentioned [in GC 111, Article 4(A)(2)] make it very difficult for non-regular forces for which, in many cases, the fulfilment of the cumulative conditions of openly bearing arms and wearing a recognizable distinctive sign maybe suicidal.” (Israel, Manual on the Laws of War (1998), p. 50.

66 AP I, Art. 43(2).

67 See Sandoz, Swinarski and Zimmermann (eds.), op. cit. (note 24), p. 515, n. 1677.

68 Diplomatic Conference on the Reaffirmation and Development of International Law applicable in Armed Conflicts (CDDH), Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 111.

69 Additional Protocol I has similar wording. “Members of the armed forces of a Party to a conflict (…) are combatants” and “[a]ny combatant shall be a prisoner of war”, see AP I, Artt. 43 and 44.

70 See for example Jordan J. Paust, “There is no need to revise the laws of war in light of September 11th”, <http:/www.asil.org/taskforce/paust.pdf> (visited on 17 February 2004), p. 9; McDonald, Avril, “Defining the war on terror and the status of detainees: Comments on the presentation of Judge George Aldrich”, Humanitäres Völkerrecht, Vol. 4, 2002, pp. 207 ff.Google Scholar; Aldrich, George H., “The Taliban, al Quaida and the determination of illegal combatants”, Humanitäres Völkerrecht, Vol. 4, 2002, p. 208 (even though he leaves the question open)Google Scholar.

71 See in this direction Draper, op. cit. (note 65), p. 203 (speaking of “disjunctive nature of the conditions”).; Baxter, op.cit. (note 47), p.105; Rosas, Alan, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts, Helsinki, Suomalanine Tiedeakatemia, 1976, p. 328Google Scholar; Mallison and Mallison, op.cit. (note 45), pp. 44–48.

72 Article 31 (1) Vienna Convention on the Law of Treaties, 1969.

73 Final Record of the Diplomatic Conference of Geneva, 1949, Vol. II A., p. 387.

74 See the objections of the Soviet Union to including identical conditions both for armed forces and militias and volunteers forming part of the armed forces and for irregular forces (Final Record of the Diplomatic Conference of Geneva, 1949, Vol. II A., pp. 466–7).

75 Final Record of the Diplomatic Conference of Geneva, 1949, Vol. II B. pp. 267 ff.

76 In the Swarska case however, an Israeli military court ruled that even regular soldiers of the Egyptian army operating under orders from their commander could not benefit from POW status, since they wore civilian clothes while carrying out their mission. The court observed that it would be quite illogical to regard the duty to wear a uniform (in the sense of a distinctive sign) as imposed only on the quasi-military units referred to in GC III, Article 4(A)(2), and not on soldiers of regular armed forces. The court concluded that the defendants were to be prosecuted as saboteurs. (Israel, Military Court, Swarka case, Judgement, 1974.)

77 Paust, op. cit. (note 70), pp. 8ff.

78 As early as 1907, during adoption of the Hague Regulations, it was mentioned that militias forming part of the army were fighting without a distinctive mark. See Bordwell, op. cit. (note 44), pp. 228 ff.

79 See: “Contemporary practice of the United States: Decision not to regard persons detained in Afghanistan as POWs”, American Journal of International Law, Vol. 96, 2002, pp. 475–480CrossRefGoogle Scholar.

80 “With respect to the Taliban, the Taliban also did not wear uniforms, they did not have insignia, they did not carry their arms openly and they were tied closely at the waist to al Quaida (…)” The last argument (referral to al Quaida) seems to refer to the element of (failure to) respect for the laws and customs of war. The Secretary added that “there isn't any question in my mind… (…) they are not, they would not rise to the standard of a prisoner of war.” (US Department of Defense News Transcript, cited from “Contemporary practice of the United States”, op. cit. (note 79), p. 479.) The statements of other US officials also referred to the (factually very doubtful) absence of responsible command, to the legally irrelevant fact that the Taliban regime was not recognized by the US and to arguments stemming from the nature and origin of the war and the motives for deposing the Taliban regime (Ibid, p. 480).

81 See e.g. Robert K. Goldman and Brian D. Tittemore, “Unprivileged combatants and the hostilities in Afghanistan: Their status and rights under international humanitarian and human rights law”, available at: <http://www.asil.org/taskforce/index.htm> (visited 16 February 2004).

82 See in particular the article by Stephen Biddle, “Afghanistan and the future of warfare”, Foreign Affairs, Vol. 82, March/April 2003, pp. 31–46: “Interviews with a broad range of key American participants in the war, along with a close analysis of available official documentation on the war effort and personal inspection of its battlefields, lead to the conclusion that the war as a whole was much more orthodox, and much less revolutionary, than most now believe” (At p. 32).

83 See AP I, Art. 44 (7) (on the wearing of uniforms by regular troops) and the illustrations at the end of the present article. See also United States of America vs. John Walker Lindh, Criminal case No. 02–37-A in the District Court for the Eastern District of Virginia, Alexandria Division (US government's opposition to the defendant's motion to dismiss count one of the indictment for failure to state a violation of the charging statute (combat immunity)).

84 They refused, however, to give POW status to the French forces of exiled General de Gaulle.

85 See Goldman and Tittemore, op. cit. (note 81), pp. 11 ff.; Paust, op. cit. (note 70), p. 10; Aldrich, op. cit. (note 70) p. 208.

86 In particular to the Viet Cong, see Paust, op. cit., (note 70), p. 10. See also The Commander's Handbook on the Law of Naval Operations (NWP 1–14M) of October 1995 stating (in the case of false claims of non-combatant status): “It is the policy of the United States, however, to accord illegal combatants prisoner-of-war protection if they were carrying arms openly at the time of capture” (12.7.1).

87 Schindler, Dietrich, “State of war, belligerency, armed conflict” in Cassese, Antonio (ed.), The New Humanitarian Law of Armed Conflict, Editorial Scientifica, Naples, 1979, pp. 1–20Google Scholar; Reibel, Eibe H., “Recognition of belligerency”, in: Rudolf Bernhardt (dir.). Encyclopaedia of Public International Law, No. 4, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, 1982, pp. 167–170Google Scholar.

88 In the said internal armed conflicts, entirely discretionary measures in qualifying a situation of armed conflict have nowadays been replaced by the definitions of armed conflicts contained in Art. 3 common to the 1949 Geneva Conventions, in Art. 1 of Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977 (hereinafter “AP II” or “Additional Protocol II”), and in AP I, Art. 1(4).

89 Schindler, op. cit. (note 87), pp.19–20, notes: “[It] is hardly more than a relict of a past time [and] plays only a marginal role in contemporary international law. (…) On the other hand, it is not to be excluded that the state of war or belligerency may witness a certain revival in future wars. The new significance which the concept of just war has gained in recent times may cause a state of war to be declared more often in relation to States or regimes against which an allegedly just war is conducted. (…) The old concept of war as a legal condition with particular rights and duties might well be replaced by a concept of war which has a primarily symbolic, political and psychological significance.”

90 Remarks by Sofaer, Judge Abraham D., Legal Adviser, US Department of State, at the Sixth Annual American Red Cross-Washington College of Law “Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions”, published in: American University Journal of International Law and Policy, Vol. 2, 1987, p. 466Google Scholar.

91 Similarly in the Malaysian Osman case. “It is not, however, stated that such members (of the armed forces) must at the time of their capture be wearing “a fixed distinctive sign recognizable at a distance. International law, however, recognizes the necessity of distinguishing between belligerents and peaceful inhabitants.” (House of Lords (Privy Council) on Appeal from the Federal Court, cited from Sassòli and Bouvier, op. cit. (note 21), p. 773.

92 AP I Art. 46 (I); in another situation also for mercenaries cf. AP I Art. 47 (I).

93 “A combatant who Falls into the power of an adverse party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Geneva Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.” (Art. 44(4) AP I).

94 Michael Bothe, Karl Joseph Partsch and Waldemar A. Solf, New Rules for Victims of Armed Conflicts. Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff Publishers, The Hague/Boston/London, 1982, p. 253. Upon signing and/or ratifying Protocol I, Australia, Belgium, Canada, France, Germany, Ireland, South Korea and the UK stated that the situation described in the second sentence of AP I, Article 44(3), could exist only in occupied territories or in armed conflicts covered by AP I, Article 4(1) (wars of national liberation). (Australia, Declarations made upon ratification of AP I, 21 June 1991, para. 2; Belgium, Interpretative declarations made upon ratification of AP I, 20 May 1986, para. 4; Canada, Reservations and statements of understanding made upon ratification of AP I, 20 November 1990, para. 6(a); France, Reservations and declarations made upon ratification of AP I, 11 April 2001, para. 8; Germany, Declarations made upon ratification of AP I, 14 February 1991, para. 3; Ireland, Declarations and reservations made upon ratification of AP 1, 19 May 1999, para. 7(a); South Korea, Declarations made upon ratification of API, 15 January 1982, para. 1; UK, Declarations made upon signature of API, 12 December 1977, para, c; UK, Reservations and declarations made upon ratification of AP I, 28 January 1998, para. g).

95 See as an example the practice of the United States (The Commander's Handbook on the Law of Naval Operations (NWP1–14M) of October 1995 (N. 12.7.1)).

96 Osman case, op. cit. (note 91) and Kassem case, op. cit. (note 41). In both cases, members of armed forces forfeited POW-status according to the courts by failing to distinguish from the civilian population.

97 Cf. Sandoz, Swinarski and Zimmerman, (eds.), op. cit. (note 24), p. 465, n. 1572.

98 GC III, Art. 5 (2) and AP I Art. 45. See also Naqvi, Yasmin, “Doubtful prisoner-of-war Status”, International Review of the Red Cross, No. 847, September 2002, pp. 571–595CrossRefGoogle Scholar.

99 An act of perfidy invites the confidence of an adversary and leads him to believe that he is entitled to, or should provide, protection under international humanitarian law. AP I Art. 37 (1)(c). See also Art. 23 (b) of the 1907 Hague Regulations (“[t]o kill or wound treacherously individuals belonging to the hostile nation or army”).

100 On the other hand, such acts may also be carried out while wearing uniforms of enemy forces, possibly in a manner contrary to the law of war (see AP I, Art. 39(2)). See also Jobst, Valentine, “Is the wearing of the enemy's uniform a violation of the laws of war?”, American Journal of International Law, Vol. 35, 1941, pp. 435–442Google Scholar. The general prohibition on the use of enemy uniforms is generally recognized at least in combat missions, but not necessarily in other military operations (e.g. favouring, protecting or impeding military operations) cf. Parks, op. cit. (note 20), p. 522–523.

101 See e.g. Art. 8 (2)(b)(xi) of the Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. A/CON F. 183.9.

102 Cf. AP. I, Art. 46 (1) and (2).

103 AP II, Art. 13(3), and Art. 3 common to the 1949 Geneva Conventions (protection of “persons taking no active part in hostilities”).

104 AP II, Art. 1(2).

105 Report on the Practice of Indonesia, 1997, Interviews with senior army officers, (on file with the author).

106 See International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 225: “State practice shows that general principles of customary international law have evolved with regard to internal armed conflict also in areas relating to methods of warfare. In addition to what has been stated above, with regard to the ban on attacks on civilians in the theatre of hostilities, mention can be made of the prohibition of perfidy. Thus, for instance, in a case brought before Nigerian courts, the Supreme Court of Nigeria held that rebels must not feign civilian status while engaged in military operations.” (Decision available on the ICTY's website: <http://www.icty.org>).