Uncloaking the Dagger: Does Adherence to the Geneva Conventions Betray Special Operations Forces?

Uncloaking the Dagger: Does Adherence to the Geneva Conventions Betray Special Operations Forces?

Charles Staab

Bombs, Special Operations Forces (SOF), and proxy forces are growth industries in the modern fight.  As President Obama identified in an address covering the nation’s strategy in Syria, “airstrikes, Special Forces, and working with local forces who are fighting to regain control of their own country -- that is how we’ll achieve a more sustainable victory.”[i]  These remarks capture the nation’s current policy for combating terrorist threats.  From its origins in the Second World War to present day, the history of SOF is written in clandestine operations.  By design, the charter for clandestine operations resides in the gray area between overt military operations and covert operations.  When operating in this gray area, the use of civilian clothing to reduce a military signature can be an essential factor for concealment.  Yet, under international law, this form of camouflage, if performed during military operations against a belligerent, is considered perfidy and therefore universally prohibited.  While there are no means under the Geneva Conventions to consider most acts of perfidy as legally acceptable, an analysis of both international and U.S. military legal boundaries for perfidy, military deception, and clandestine operations highlight potential areas for reform.  With these concerns in mind, the United States should petition a reclassification of perfidy from the United Nations to ensure the legal protections and force protection of SOF while conducting clandestine operations.

Perfidy

The parameters for military actions considered as perfidy are outlined in the protocols of the Geneva Conventions and other established and customary international humanitarian laws which form the basis for the Laws of Armed Conflict.  Article 37 of the Geneva Convention of June 1977 explicitly prohibits perfidy defining it as “[a]cts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.”[ii]  In other words, it is illegal to deceive an adversary with the intent to kill or injure.  The formation of this concept began with the Hague Convention in 1907 which was the first multi-national treaty to define the lawful conduct of war and combatant status.[iii]  This treaty provided the first accepted principle of discrimination intending to distinguish between lawful combatants and non-combatants stating:

laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war.[iv]

Therefore, to conduct operations congruent with “the laws and customs of war,” combatants must display a non-removable symbol that is distinctive from afar and openly carry their weapons.  The standards supporting this principle of distinction were further incorporated into established international law through Article 4 of the Geneva Convention of 1949 and are now key parts to the Laws of Armed Conflict (LOAC).  As stated in the most current version of the U.S. Army’s Operational Law Handbook, LOAC mandates that “belligerents distinguish combatants from civilians and military objectives from civilian objectives.”[v]  By adhering to this principle, lawful belligerents may not use civilian clothing to reduce military signature and enhance the force protection means of military personnel to guard against their enemies’ attacks.  Furthermore, LOAC plainly distinguishes the difference between lawful and unlawful combatants (i.e. privileged and unprivileged belligerents) through several means.  Lawful combatants are generally “military personnel engaging in hostilities in an armed conflict on behalf of a party to the conflict” and, as a result, “bear no criminal responsibility for killing or injuring enemy military personnel or civilians taking an active part in hostilities.”[vi]  On the other hand, unlawful combatants, including spies, saboteurs, or civilians, are those who “directly participate [sic] in hostilities or who otherwise engage in unauthorized attacks or combatant acts.”[vii]  Given that these actions are considered “unauthorized” under LOAC, if captured these personnel are not only denied the rights afforded to prisoners of war (POWs) under Article 4 of Geneva Convention (III), but they may also be tried as war criminals after the conflict.[viii]  With this information in mind, there appears to be no legal defense for conducting any military operations, regardless of an overt or clandestine nature, in any clothing other than a distinctive military uniform. In fact, if captured while conducting military operations in a reduced military signature, the personnel involved could be “tried under the laws of the capturing nation” for espionage.[ix]  Despite these clear distinctions for perfidy, international humanitarian laws do permit certain forms of military deception.

Military Deception

In contrast to perfidy, military acts of deception are authorized under both the Geneva Conventions and corresponding LOAC standards.  Article 37 (2) of the Geneva Convention defines such “ruses” as “acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law.”[x]  Under these standards, the use of civilian clothing to reduce the military appearance of armed forces personnel would be considered viable means of camouflage.  Next, the Operational Law Handbook highlights the legality of military deception as established by the Lieber Code in 1863 stating that “deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare.” [xi] On the other hand, Liber Code also highlights that “clandestine or treacherous attempts to injure an enemy, because they are so dangerous [and] difficult to guard against” are subject to capital punishment.[xii] Obviously, the fine line between perfidy and military deception presents a gray area for military forces with severe consequences for misjudgment.

Clandestine Operations

Both established international law and U.S. military operational law fail to make a clear distinction between espionage and authorized military clandestine operations.  Joint Publication 3-05 describes clandestine as “[a]n activity or operation sponsored or conducted by governmental departments or agencies with the intent to assure secrecy and concealment.”[xiii]  This definition provides a basis for the concept of authorized military clandestine operations, but it also holds no legal authority.  International law, on the other hand, links clandestine operations with espionage.  Beginning with the Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, the United Nations maintains that it is “[t]he duty of the State to refrain from armed intervention, subversion, military occupation or any other form of intervention and interference, overt or covert, directed at another State or group of States.”[xiv]  With this declaration, the United Nations establishes a clear position against State(s) intervention violating another State’s sovereignty across the range from military operations from overt to covert.  Next, Article 46 of the Geneva Convention describes espionage as “gather[ing]or attempts to gather information of military value…under false pretenses or deliberately in a clandestine manner.”[xv]  While this article does provide protection for members of the armed forces conducting such acts, this protection only applies if the military member is wearing a uniform to clearly distinguish themselves as lawful combatants.[xvi]  Furthermore, Rule 107 of international humanitarian law states that “combatants who wear civilian attire or who wear the uniform of the adversary” are considered spies and, therefore, do not have the right to POW status if captured.[xvii]

Not only does international law fail to protect members of the armed forces conducting clandestine operations, the United States’ military’s own Operational Law Handbook upholds the same restrictions.Despite these constraints, U.S. operational law provides two caveats on clandestine actions considered as espionage that are worth highlighting.First, under the United States’ accepted definitions, espionage is not considered a LOAC violation.[xviii]  Second, “reaching friendly lines immunizes the spy for past espionage activities.”[xix]  These caveats provide a baseline for the argument supporting clandestine operations by members of the armed forces.  While not considered legally acceptable under current international laws and practices, there is sufficient reason to reconsider certain activities that are not a LOAC violation and would not require trial in the international courts if revealed after reaching friendly lines.

Issue Discussion

The gap in international law between prohibited acts of perfidy and lawful acts of camouflage as means of military deception is most prevalent for SOF.  By their nature, SOF are intended to operate in a clandestine or low visibility manner to navigate hostile, denied, or politically sensitive operational environments.[xx]  Under Title 10 to the United States Code (USC), the United States Special Operations Command (USSOCOM) has authority to direct special operations forces while conducting: “direct action, strategic reconnaissance, unconventional warfare, foreign internal defense, civil affairs, psychological operations, counterterrorism, humanitarian assistance, theater search and rescue, and such other activities as may be specified by the President or the Secretary of Defense.”[xxi]  It is possible for SOF operations to have legal protection while supporting authorized national intelligence operations of other federal intelligence agencies under authorities as expressly outlined in Title 50 USC.  However, the predominance of SOF operations will fall under Title 10 USC authorities.  Furthermore, the conduct of these authorized Title 10 USC military operations could require SOF to wear civilian clothing without openly carrying weapons and a fixed distinctive emblem to signify their element as a lawful combatant; herein lies the problem.

If captured by their enemy in the execution of such operations, these elements could potentially lose their fundamental legal protections as POWs and lawful combatant immunity from trial as a spy by a foreign government.  As a result, it seems unreasonable to expect that lawful combatants would be able to designate themselves as members of foreign armed forces prior to a hostile engagement, especially in the instances of time sensitive SOF engagements, such as raids or ambushes.  With the utilization of SOF in asymmetric operating environments becoming most common than ever before in American history, it is clear the United States should address this flaw in international humanitarian law as soon as possible to ensure the safety and protection of armed forces personnel abroad.

There is certainly good reason for the restrictions against attacking an enemy while wearing civilian clothing.  Asymmetric threats such as “Green on Blue” attacks provide a salient reminder for the need to maximize force protection measures in the modern operational environment.  Since 2008, independent research shows that at least 150 international troops have been killed in Afghanistan, with another 187 wounded, as the result of attacks from friendly partner forces, commonly referred to as “Green on Blue” attacks.[xxii]  Although decreasing in frequency in recent years, this style of disguised attack remains a threat to the force.  The United States should not seek any revision to international law that could provide sanction to the enemy’s use of such actions.  Instead, the United States should tailor these revisions to explicitly outline the distinctions between authorized overt, clandestine, and covert military activities and terrorist acts.  While this distinction presents another challenge given the uncertainty in the fog of war, it is necessary to separate these activities to fully understand the operational environment.

This argument is complicated and nuanced.  Accordingly, there are several considerations worth mention to properly frame the discussion.  First, the protections provided by the Geneva Conventions for POWs are only valid when lawful combatants are captured by parties to those agreements.  Terrorist organizations, such as Al-Qaeda, Boko Haram, or the Islamic State of Iraq and Syria, do not recognize any rights afforded to POWs in the Geneva Conventions as they have repeatedly demonstrated.  Nonetheless, U.S. military personnel should still seek additional refinement to the governing international laws to reform a glaring oversight.  Second, it should be highlighted that the basis for the principle of distinction in LOAC and the Geneva Conventions comes from a document developed and signed in 1907.  Given the extensive evolution operational environment since in the century of warfare since that time, it could be reasonably argued that this principle, along with details contained therein, is in dire need of reexamination.  Finally, although the United States is not a signatory to the 1977 Protocol I Additional to the Geneva Conventions, it has acknowledged that the Additional Protocol provisions constitute a codification of customary international that is legally binding.[xxiii]  In other words, the U.S. has not officially agreed to all portions of the Geneva Conventions but understands that its representatives can be held to these provisions under customary international law.

Conclusion

The fine line between prohibited acts of perfidy and lawful camouflage in support of clandestine operations creates a significant challenge.  The classification of clandestine operations with acts of espionage further exacerbates this issue putting our nation’s SOF at a considerable risk of losing their rightful protections as lawful combatants under international law.  When combined with the high physical risk of these operations, this is places an undue burden on members of SOF.  More than ever before, this country and its allies abroad leverage their significant special operations capabilities to combat multiple existential threats to national security.  Furthermore, clandestine operations provide a significant benefit to the nation’s defense and it is time to ensure the proper protection for SOF executing authorized military operations.

The United States has reached a modern-day impasse requiring the attention of the international community.  To improve the legal protection for SOF personnel operating abroad, the United States should request a specific revision to international humanitarian laws (namely, the Article 4 of the Geneva Convention).  To initiate the revision process, the United States’ representative to the United Nations should petition the General Assembly to address the specific instances where lawful combatants, utilizing civilian clothing to enhance force protection as a means of camouflage, become engaged in hostile contact with another belligerent.  Concurrently, the United States and its international allies should coalesce a broad base of support in the international community to ensure success against inevitable rebuke from traditional international opponents to these types of united actions (e.g. North Korea, Iran, and Russia).  Though ostensibly creating yet another loophole for an asymmetric enemy or belligerent nation with malign intentions to exploit, this revision should highlight the effort to create adequate legal protection for lawful combatants where presently none exists.  Various terrorist entities choose to ignore the majority of international law governing the conduct of lawful warfare.  As a result, this revision should also highlight that any additional legal protection created would only be of benefit to those who follow the established international legal boundaries for the conduct of war.

Presently, adherence to the international standards for lawful combatants betrays SOF to their enemy.  While it is impossible to remove all ambiguity from the nature of armed conflict, this is clearly one area where more can be done to protect lawful combatants.  SOF prides themselves on being able to operate in the gray but this should not require forfeiture of legal protection in the event of capture.  POW status and right to trial following capture are fundamental rights to all lawful combatants and should not be denied regardless of nature of the USC Title 10 mission.  Therefore, this suggested revision is necessary to protect the force and correct a clear oversight international law.  Absent this revision, SOF will continue to execute their nation’s highest priorities without the proper legal protection, and that can no longer be acceptable.

Bibliography

Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907.

Department of Defense. Special Operations (JP 3-05). Washington, D.C: Pentagon, 2014.

Ferrell III, William H. “No Shirt, No Shoes, No Status: Uniforms, Distinctions, and Special Operations in International Armed Conflict.” Military Law Review, vol. 178 (Winter 2003): 94-140.

International Committee of the Red Cross (ICRC). Customary International Humanitarian Law. 2005. Volume I: Rules, Rule 107.

Judge Advocate General’s Legal Center and School. Operational Law Handbook.Charlottesville, Virginia: 2014.

Obama, Barack H. Address to the Nation. Speech from the White House, Washington, D.C., December 16, 2015.

Parks, W. Hays. "Special Forces' Wear of Non-Standard Uniforms." Chicago Journal of International Law, vol. 4: no. 2, article 16 (2003).

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977.

Russia Today. “2 Americans Dead in Afghanistan green-on-blue attack.” Accessed October 22, 2016, https://www.rt.com/usa/363315-americans-killed-attack-afghanistan/.

Unified Combatant Command for Special Operations Forces. 10 USC § 167 (2006).

United Nations General Assembly. Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States. 9 December 1981.

U.S. Government. General Orders No. 100: Instructions for the Government of Armies of the United States in the Field. 24 April 1863.

End Notes

[i] President Barack Obama, Address to the Nation (speech from the White House, Washington, D.C., December 16, 2015).

[ii] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8 1977, art. 37(1).

[iii] Ferrell III, William H., “No Shirt, No Shoes, No Status: Uniforms, Distinctions, and Special Operations in International Armed Conflict,” Military Law Review, vol. 178 (Winter 2003): 98.

[iv] Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the  Laws and Customs of War on Land. The Hague, 18 October 1907, Sec. 1, Art. 1.

[v] Judge Advocate General’s Legal Center and School, Operational Law Handbook, (Charlottesville, Virginia: 2014), 11.

[vi] Operational Law Handbook, 16 & 17.

[vii] Operational Law Handbook, 17.

[viii] Operational Law Handbook, 17.

[ix] Operational Law Handbook, 31.

[x] Protocol Additional to the Geneva Conventions, June 8, 1977, art. 37(2).

[xi] U.S. Government, General Orders No. 100: Instructions for the Government of Armies of the United States in the Field, 24 April 1863, art. 101.

[xii] General Orders No. 100.

[xiii] Department of Defense, Special Operations (JP 3-05) (Washington D.C: Pentagon, 2014), GL-6.

[xiv] United Nations General Assembly, Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, 9 December 1981.

[xv] Protocol to the Geneva Conventions, art. 46(3).

[xvi] Protocol to the Geneva Conventions, art. 46(2).

[xvii] International Committee of the Red Cross (ICRC), Customary International Humanitarian Law, 2005, Volume I: Rules, Rule 107.

[xviii] Operational Law Handbook, 31.

[xix] Operational Law Handbook, 31.

[xx] Special Operations (JP 3-05), ix.

[xxi] Unified Combatant Command for Special Operations Forces, 10 USC § 167(j) (2006).

[xxii] “2 Americans Dead in Afghanistan green-on-blue attack,” Russia Today, accessed October 22, 2016,    https://www.rt.com/usa/363315-americans-killed-attack-afghanistan/.

[xxiii] W. Hays Park, "Special Forces' Wear of Non-Standard Uniforms," Chicago Journal of International Law, vol. 4: no. 2, article 16 (2003), 519.

 

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Comments

Are we just waking up to the hypocrisy of claiming the Taliban et al were "illegal combatants" while the CIA and contractors are civilians and SOF go out of their way to not wear uniforms?

The author is confused about the law: "and right to trial following capture are fundamental rights to all lawful combatants". The right to a trial is a right of all detainees. Whether they are "unlawful" is determined at the tribunal and not before.