Academic journal article Chicago Journal of International Law

Special Forces' Wear of Non-Standard Uniforms*

Academic journal article Chicago Journal of International Law

Special Forces' Wear of Non-Standard Uniforms*

Article excerpt

In February 2002, newspapers in the United States and United Kingdom published complaints by some nongovernmental organizations ("NGOs") about US and other Coalition special operations forces operating in Afghanistan in "civilian clothing."1 The reports sparked debate within the NGO community and among military judge advocates about the legality of such actions.2 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,4 Special Forces,5 its special mission units,6 or the missions assigned them.

The topic provides lessons and questions for consideration of future issues by judge advocates. The questions are:

I. What are the facts?

II. What are the legal issues?

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?

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?

A. What is the applicable treaty law and legislative history?

B. What is state practice, including court decisions?

I. WHAT ARE THE FACTS?

Thirty years ago it was my privilege to serve as the first Marine Corps Representative at The Judge Advocate General's ("JAG") School, US Army, in Charlottesville. As the lone Marine on the faculty, I was expected to attend all major public ceremonies, including the graduation of each Judge Advocate Officers Basic Course-the accession course for new lawyers entering the Army. Course graduation warranted a speech by one of the Army JAG Corps' flag officers. Regardless of who the graduation speaker was, the speech was the same. Written by The Assistant Judge Advocate General of the Army, the late Major General Lawrence H. Williams, it was called "the facts speech." Its message was simple and straightforward: before charging off to tilt at windmills, be sure you have the facts.

There is much to be said for this admonition and its application in the case at hand. Condemning certain actions or declaring them a law of war violation based upon news accounts is not a sound basis for analysis. No lawyer would prepare his case based solely upon news accounts. Indeed, media reports generally are inadmissible as evidence. Regrettably, some rushed to judgment based on less-than-reliable sources.

There are two fundamental issues. The first is what was being worn, and by whom. The second is the motive for the NGO complaints.

In response to the September 11, 2001 al Qaeda terrorist attacks against the World Trade Center and the Pentagon, US and Coalition Special Forces began operations in Afghanistan in late September 2001. At the request-initially insistence-of the leaders of the indigenous forces they supported, they dressed in indigenous attire. For identification purposes within the Northern Alliance, this included the Massoud pakol (a round brownish-tan or gray wool cap) and Massoud checkered scarf, each named for former Northern Alliance leader Ahmad Shah Massoud, who was assassinated days before the al Qaeda attacks on the World Trade Center and Pentagon. This attire was not worn to appear as civilians, or to blend in with the civilian population, but rather to lower the visibility of US forces vis-a-vis the forces they supported. …

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