April 07, 2003

Even as the Bush Administration is shrieking about how Iraqi forces are committing war crimes by dressing in civilian clothing, it has been forced to concede that its own troops are using the very same tactic.

An Army legal official recently told a House panel that Fedayeen militia members captured in Iraq would likely not be entitled to the protection of prisoner-of-war status. That would mean they could face criminal charges for attacking American soldiers.

However, US special forces and intelligence operatives in Afghanistan during the US invasion there frequently wore civilian clothing, and even wore long hair and beards to blend in with the local population. US media outlets broadcast news footage of such US operatives, including video of an intitial interrogation of American Taliban member, John Walker Lindh, by a plain-clothed intelligence officer.

It has been widely reported that US forces have been employing similar tactics in Iraq, both before and during the US invasion.

When asked at a Pentagon press conference why it is OK for American commando troops to take off their uniforms, but a crime when the Iraqis did it, Defense Department spokeswoman Victoria Clarke said she thought American forces wear something that distinguishes them from civilians, but deferred the question for a later answer.

Maj. Gen. Stanley McChrystal, vice director of operations for the Joint Chiefs of Staff, said the war crime is determined by what the soldier does as well as what he wears.

"I'm not a lawyer, so I might get part of this wrong, but part of it is ... what you do when you're not in uniform," he said. "If a force is going to engage in combat, it's going to fight, it must wear a uniform or some kind of uniform -- law of land warfare says arm bands or some distinctive marking that allows combatants to be identified from civilians."

In fact Gen. McChrystal is wrong.

The Geneva Convention relative to the Treatment of Prisoners of War, adopted in 1949, requires that POW status be afforded to a wide range of people, including troops, militias, and even civilians working for the military.

Article 4 requires, among other things, that combatants wear "a fixed distinctive sign recognizable at a distance." The International Red Cross, one of the NGOs specifically charged with monitoring and enforcing compliance with the Geneva Conventions, says that "combatants must distinguish themselves from civilians by a uniform or other distinctive sign recognizable at a distance." Combatants must also carry "arms openly."

At no point do the Articles make an allowance for not wearing a uniform or "distinctive sign" so long as the combatant is otherwise following the law. In fact, they require both conditions together, among others.

At a press briefing during the US invasion of Afghanistan, Sec. of Defense Donald Rumsfeld said:

"The characteristics of the individuals that have been captured is that they are unlawful combatants, not lawful combatants. That is why they are characterized as detainees and not prisoners of war. The al-Qaeda are so obviously a part of a terrorist network as opposed to being part of an army -- they didn't go around with uniforms with their weapons in public display, with insignia and behave in a manner that an army behaves in, they went around like terrorists, and that's a very different thing."

By Secretary Rumsfeld's own definition, then, US forces operating in civilian clothing are "terrorists" and "unlawful combatants."

A Pentagon pamphlet on the laws of war (quoted here) states: "An unlawful combatant is an individual who is not authorized to take a direct part in hostilities but does. ... Unlawful combatants are a proper object of attack while engaging as combatants. ... If captured, they may be tried and punished."

Thus even the Pentagon's own literature states that US forces operating in plain clothes are subject to prosecution.

However, the Pentagon claim that combatants "not authorized" to fight by their government or military are exempt from POW status is not quite correct. Article 4, section A, paragraph 6 of the 1949 Geneva Convention specifically extends POW protections to captured irregular forces, including "Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war."

[Read the source...]

Related Links:

• Legal Status of Al-Qaeda and Taliban Detainees at Guantanamo Bay, Cuba - compiled by the American Friends Service Committee of New York