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Dr. Porter asked the following question: >Date: Thu, 17 Mar 2005 15:40:43 -0500 >From: Gareth Porter <email@example.com> > >I would like to ask Mark Safranski for the reference in the international >law of war for his statement that not wearing a uniform is "punishable >because it puts the civilian population at risk for reprisals." > Fair question. Putting the civilian population at risk for reprisals was, in my view, merely the self-evident reasoning behind regarding fighting out of uniform as a war crime. On the act of fighting out of uniform itself, the Laws of War,in theory and practice, deal with out of uniform combatants primarily as spies and saboteurs. The logic of the textual definition of a spy implicitly assumes that espionage is a crime: Laws and Customs of War on Land (Hague IV) 1907 Article 29: >A person can only be considered a spy when, acting clandestinely or on >false pretences, he obtains or endeavours to obtain information in the >zone of operations of a belligerent, with the intention of communicating >it to the hostile party. Thus, soldiers not wearing a disguise who have penetrated into the zone of operations of the hostile army, for the purpose of obtaining information, are not considered spies. Similarly, the following are not considered spies: >Soldiers and civilians, carrying out their mission openly, entrusted >with the delivery of despatches intended either for their own army or >for the enemy's army. To this class belong likewise persons sent in >balloons for the purpose of carrying despatches and, generally, of >maintaining communications between the different parts of an army or a >territory. Article 30: >A spy taken in the act shall not be punished without previous trial. The implicit assumption in Article 30 is that espionage during war time is a crime and that accused spies should be given a fair trial and not simply executed summarily. To be a spy, you must be out of uniform and not in it, as Article 29 makes clear. In Ex Parte Quirin, the Supreme Court of the United States ruled along these very lines that belligerency out of uniform violated the Laws of War - i.e. that it was an offense unto itself and not merely a technical ineligibility for POW status: "By *universal agreement and practice* the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations7 and also between [317 U.S. 1, 31] those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but* to be offenders against the law of war subject to trial and punishment by military tribunals*. " [emphasis mine] Nor is the United states alone in this view. Singapore dealt with a case of sabotage by Indonesian soldiers out of uniform in 1966 that was very similar to that of the Nazis in Ex Parte Quirin. The Federal Court of Singapore took a view nearly identical to that of SCOTUS, ruling in Krofan and another v. Public Prosecutor , that: "However, the position of members of the armed forces caught out of uniform while acting as saboteurs in enemy territory is not dealt with by the Hague Regulations. In the Saboteur's Case (Ex parte Quirin & Ors. )(1) the Supreme Court of the U.S.A. in 1942 treated disguised saboteurs as being in the same position as spies. This view is also held by the authors of the Manual of Military Law Part III an official publication in 1958 of the United Kingdom War Office at paragraph 96 page 34 where it is stated "Members of the armed forces caught in civilian clothing while acting as saboteurs in enemy territory are in a position analogous to that of spies." We are of the opinion that this view does not offend against the rules of the law of nations respecting warfare and indeed states the position under customary international law. It seems to us to be consistent with reason and the necessities of war to treat a regular combatant in disguise who acts as a saboteur as being in the same position as a regular combatant in disguise who acts as a spy. Both seek to harm the enemy by clandestine means by carrying out their hostile operations in circumstances which render it difficult to distinguish them from civilians. In the case of the "soldier" spy it is universally accepted that he loses his prisoner of war status and need only be treated as any other spy would be treated. There seems no valid reason therefore why a "soldier" saboteur, who by divesting himself of his uniform cannot readily be distinguished from a civilian, should not also be treated as any other saboteur would be treated. Both, by reason of their having purposely divested themselves of the most distinctive characteristic of a soldier, namely his uniform, have forfeited their right on capture to be treated as other soldiers would be treated i.e. as prisoners of war. "We will now examine the position under the 1949 Geneva Prisoners of War Convention. Under article 4A(1) persons belonging to the category of "members of the armed forces" of a party to the conflict are prisoners of war. Has this definition of prisoners of war altered the position of the "soldier" spy or "soldier" saboteur who has divested himself of his uniform? We are of the opinion it has not. The conditions of modern warfare are not such as to make the spy or the saboteur any less dangerous or more easily distinguishable or more easily apprehended than at the time of the Hague Regulations. As we have mentioned, the Hague Regulations gave the status of prisoners of war to "members of the armed forces" of the belligerents. The words used in article 4A(1) of the Geneva Convention and article 3 of the Hague Regulations to describe regular combatants are identical namely "members of the armed forces." In our opinion the principle applicable remains the same, namely, that a regular combatant who chooses to divest himself of his most distinctive characteristic, his uniform, for the purpose of spying or of sabotage thereby forfeits his right on capture to be treated as other soldiers would be treated i.e. as a prisoner of war. If such a spy or a saboteur is tried under the domestic legislation of the detaining power such trial can take place in camera, no notification is required to any Protecting Power and no rights of communication under article 107 of the 1949 Geneva Prisoners of War Convention exist. However, he must be treated with humanity and afforded a fair and regular trial" Fighting out of uniform is quite reasonably regarded as a war crime, punishable for that act alone, if so convicted by a competent tribunal, commission or court-martial. Mark Safranski Independent Scholar  Ex Parte Quirin, 1942 http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=317&invol=1  Krofan and another v. Public Prosecutor, 1966 http://www.icrc.org/ihl-nat.nsf/0/0711dbb7117f01a4c1256ae8003f8cde?OpenDocument