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Military uniforms and the law of war
TON i PFANNER*

The use of uniforms is found everywhere. Schoolchildren often wear
uniforms distinguishing them from pupils of other schools; boy scouts
proudly don military-like uniforms with insignia indicating membership andrank. Bus drivers, sportsmen and women, milk deliverers, monks, nurses andsecurity personnel of private companies all wear clothes identifying them as
belonging to a particular group, service, firm or profession. They may wear
uniforms of plain fabric or of a distinctive design. By its lack of variation anddiversity, the uniform promotes a sameness of appearance and brings homogeneity to an otherwise heterogeneous group of people.
Other groups indicate their membership of a particular segment of the
population more discreetly. Companies, institutions and administrations prescribe dress codes; a particular haircut or even posture shows obedience or
devotion to a group, mission or goal; the wearing of symbols such as pins orbadges fosters a cooperative image or national pride. The similarity in salient
details distinguishes such groups from other groups or the general population.
Armies both past and present have continued to do the same: theirbest-known distinctive sign is the military uniform. Literally, the word uniform derives from the words "una" (one) and "forma" (form). Its generalmeaning is clothing in a particular fabric and with a particular design, colour
and insignia, defined in regulations and/or by tradition for all members of
one and the same military unit. Military uniforms are intended to demonstrate that their wearers belong to the armed forces of a State. They may differ according to the particular branch of the armed services and army, navy
and air force uniforms may be of different colour but they are mostly similarin style. The accessories and insignia are often war- or weapons-related.
The military uniform is a form of clothing with a particular symbolism
and a long history and tradition. Even individual regiments may dress differ-||* Editor-in-Chief of the International Review of the Red Cross. The article reflects the views of the author
alone.

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ently to reflect their history and reputation. The uniform reflects order anddiscipline, and calls for subordination by displaying a variety of insignia,
including badges that indicate rank and emphasize the hierarchical structureof armies. It also calls for respect and fear and symbolizes strength and power:
it includes features designed to make its wearer appear broader or taller, andthus to enhance the soldiers' stature in the eyes of comrades, civilians andthe enemy. Finally, it helps to create an identity of appearance and an espritde corps and is thereby conducive to the bonding process.
The military uniform distinguishes the members of armed forces fromthe rest of the population. In international armed conflicts, members of thearmed forces can lawfully take part in combat on the battlefield. Inversely,
they can be lawfully attacked. The absence of a military uniform usually indicates that a person is a civilian, is therefore not allowed to perform military
functions and must not be attacked.
On the battlefield, the proudly worn dress uniform may sometimes
become a burden and counterproductive in military terms. Distinctive signs
may be reduced to a minimum or dispensed with entirely to reduce the visibility of combatants and to enhance operational flexibility, especially incovert operations. In guerrilla warfare, combatants often do not display any
distinctive signs but blend in with the rest of the population in order toavoid identification. In other circumstances, however, the fighters of thevarious parties to internal armed conflicts want to be perceived clearly as
combatants and choose to wear all kinds of uniforms demonstrating
this identity.
In this article the issue of military uniform is examined by observing
trends from ancient times to the creation of State armies and the practice of
belligerents in armed conflicts today. The historic perspective will show thatthe wearing of military uniforms had other objectives and even today has
mainly different functions than those attributed to it by the requirements ofinternational humanitarian law, namely to ensure the clear distinction
between civilians and the military.
This principle of distinction determines the legal ramifications related
to the wearing of a military uniform. The question will be examined if themilitary uniform as a distinctive sign fulfils this requirement of the law ofwar. The prominence of the distinctive sign and its most important manifestation, the military uniform, was often also considered as an essential element of the definition of armed forces. The examination of this question
leads to the further enquiry of whether only uniformed members of the

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armed forces are to be considered as lawful combatants when engaged in military hostilities and prisoners of war in case of capture. The question arose
recently in relation to the captured Taliban soldiers who were denied prisoner of war status in the armed confrontation between Afghanistan and theUnited States of America, inter alia on the basis that they were not wearing
uniforms. Finally, it will be shown that the question of the military uniform
does not have the same implications in non-international armed conflicts.
An historical perspective

Among ancient warriors one of the most important considerations in
warfare was already to maintain the solidarity of the fighting group.
Techniques of warfare and details of weaponry enabled the members of agroup to determine at a glance to which group a person or item belonged.1
One of the first forms of identification was the use of protective devices consisting of wooden or leather shields and occasional head or body armour
made of skins. These were the first signs of specific items being used to single
out those who took part in fighting.
First signs of uniforms

Early evidence has been recorded of military formations and uniforms
more than five thousand years ago, and in ancient history uniformed soldiers
were found in particular in militarized civilizations. In Mesopotamia,
exposed to outside intrusion, warfare dominated Sumerian life in the third
millennium BC and led to military specialization; an army of more than
5,000 soldiers wore metal helmets, cloaks and fringed kilts. In the second
millennium BC the rulers in Mesopotamia maintained out of their revenue
bodies of armed men ready to go to war.2 In Babylonia, Persia, Rome, Turkey,
Japan and Peru conscription was often used by centralized political and military authorities.3 Their newly formed armies, which were larger organized
forces trained to make war, often added various types of armour and helmets
to the body protection of the shield and used them as elements of identification. The less centralized governments of Sumeria, India and China reliedthroughout much of their history on the use of volunteers or militia armies.

1 J. L Myres (e<±), The Evolution of Culture and Other Essays of the Late Lt-Cen. A. Lane-Fox Pitt-Rivers,
Clarendon Press, Oxford 1906, p. 51.
2 John Keegan.,4 History of Warfare, Pimlico, London, 1993, pp. 131-136.
3 Quincy Wright, A Study of War, 2nd edition, University of Chicago Press, Chicago, 1965, pp. 145-151.

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Military Egypt had a war style as distinctive to itself, and almost as
long lasting, as its own civilization. The many depictions of warfare in its
sculpture and wall paintings show that its soldiers did not wear armour of
any sort, but marched to battle bare-chested and bareheaded, with only
short shields for protection. Apparently, Egyptian warfare was stylized andperhaps even ritualized.4 Battle was not ceremonial, however, when fought
against foreigners.5
Emergence of large standing armies

Chandragupta, who inaugurated the Maurya Empire immediately after
the time of Alexander the Great, is said to have already had an army of
600,000 infantry, 30,000 horsemen, 36,000 men with elephants and 24,000
men with chariots.6 The Assyrians also established large standing armies andthe principles of military bureaucracy7 on which the Romans built. The
Roman army at the time of Augustus numbered more than a half a million
men at its height. The backbone of the Roman army was formed by a hardcore of professional soldiers wearing clothing and equipment clearly identifying them as belonging to it.
Although Rome was the mother of modern armies, Europe was acontinent without armies after the dissolution of the Roman Empire.
Between the disciplined armies of Rome and the reappearance of State
forces in the sixteenth century, the precursors of military uniforms largely
disappeared. In the second half of the first millennium, Arab fighters successfully set out to extend the boundaries of Islam. Despite their lack ofexperience in warfare, they were victorious against the disciplined,organized and uniformed armies of Byzantium and Persia. Their unconventional fight for their faith made them formidable in the field. It
enabled them to prosecute the campaign into Spain and Central Asia,
and revealed the incomprehension of traditional armies when confronted
by an opponent who refused to share their cultural assumptions. Anotherclash of two quite different military cultures came when Genghis Khan

4 Keegan, op. cit. (note 2), p. 131.
5 The sanctions of the rules of war have been inadequate between peoples of similar civilizations, butobservance 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 inwar 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.

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and the Mongols acquired a reputation of invincibility by subjecting
large parts of Asia and Europe to military domination through an unparalleled system of terror. Despite Genghis Khan's strong military organization, the Mongolian horsemen were hordes rather than uniformly
dressed armies.8
Appearance of a distinctive sign

The Middle Ages, including the period of the Crusades, and theRenaissance made extensive use of heraldic signs (of communities, corporations or families) for identification in battle, but also for symbolic or aesthetic reasons or as a demonstration of strength.9 There were two kinds ofbodies of armed men, retainers and mercenaries, and while the former often
wore their master's livery, the latter were dressed each according to his own
taste or means. Even if the generals ordered the men to wear some improvised badge such as a sprig of leaves, or to leave their shirt outside their coat,such indications were easily lost or removed.10 Initially they were simply"field signs" — tufts of grass or leaves or anything to insert in the hatband or
the belt-sash.
Soldiers also wore distinctive signs sown on their clothes. An earlyexample is the white cross, in the form of two white bands set at right angles,
which appeared for the first time in 1339 in a battle where fighters of a Swiss
region wanted to distinguish themselves from the Austrians and theLansquenets of the King of Burgundy." In the subsequent wars, the Swiss
wore the distinctive sign in order to be recognized and not be attacked byother Swiss fighting with the enemy.
The absence of uniforms accounted largely for the significanceattached to the colours and standards, which alone formed rallying points forthe soldier and his comrades. A man who left the colours or wanted to desert
wandered into the terrifying unknown, for there was nothing to distinguishfriend from foe, notwithstanding the outlawing of possible deserters.

8 Keegan, op. cit. (note 2), pp. 188-217.
9 Franco Cardini, La culture de la guerre, X'-XVIII' siecle, Gallimard, Paris, 1992, pp. 217-220.
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 federate" in: Dictionnaire historique de la Suisse, available at:<http://lexhist.ch/externe/protect/textes/f/FioiO4.html> (visited on 16 February 2004).

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Spread of the military uniform

Developments in military equipment in the sixteenth and seventeenth
centuries led to the disappearance of heavy armour and the helmet. At thesame time, the wearing of a military uniform became a major element ofidentification. When large standing armies began to be established after thePeace of Westphalia, the need for distinctive attire on the battlefield spreadthroughout all European armies.
Insignia such as the white and red roses of the Yorkists and Lancastriansin the War of the Roses were progressively phased out and in the "New Model
Army", which came into effect in England after 1640, the distinctive sign ofeach detachment, otherwise previously dressed identically even to the enemy,
was abolished in favour of clothing that was uniform first in colour and then incut. As a first step a scarf of uniform colour was introduced, such as that supposed to have been worn by the "green", "yellow" and other similarly named
brigades of the Swedish Army under Gustav Adolph during the Thirty Years'
War. The colours of the coat were then standardized, and during the English
Civil War the Royalists wore coats in regimental colours. The French use ofgrey and the English use of red were consolidated on the European battlefields.12
At the end of the seventeenth century, the concept of military uniform
was largely accepted in all European armies. During the Napoleonic Wars,
military uniforms evolved further and fashion and glamour became the rule.
The soldier was showier and less comfortable than ever before or since. Some
special troops, such as the Hussars of Polish origin, distinguished themselvesby the elegance of their uniforms.
Frederick the Great could not have developed his infantry firepower
had his soldiers worn tight sleeves, yet in his old age the tendency to sacrifice
comfort for smartness gradually crept in. Nevertheless, military uniforms
started to shed many ornaments and became more practical. Towards the endof the nineteenth century and by the start of the Boer War, attempts to wear
dress uniform on active service had been given up by practically all countries.13 In the twentieth century all armies wore service uniforms, as evidenced
in particular by armies in the two world wars. At the same time, battledress
became increasingly prevalent during actual hostilities. In addition, internal
armed conflicts outnumbered international ones in the second half of the
century, and since then w.arfare has been increasingly influenced by irregular

12 See "Evolution of the uniform", op. cit. (note 10).
13 Cardini, op. cit. (note 9), pp. 217-220.

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forces largely unaffected by regulations concerning the uniforms or insignia ofState armies. But it is astonishing how similar military uniforms, their accessories and insignia appear in traditional armies despite different cultural andgeographical environments.14 This shows how the traditions of European
armies have influenced the military history of the last three centuries, especially through their colonial outreach.
Present wearing and appearance of military uniforms and insignia

Today, most armies have regulations on uniform policy and penal laws
may punish a soldier for the unlawful wearing of a specific military uniform.
Military regulations usually prescribe the appearance of uniforms andinsignia and how they are to be properly worn by officers and enlistejd personnel of the armed forces. The current US Army regulations on uniform
policy contain, for example, 369 pages of rules, tables and figures.15 The\
absence of written regulations on military uniforms does not, however, mean\that uniforms are not usually worn. Custom and cultural traditions may be
I followed more scrupulously than detailed rules.
f
The US Army regulation, entitled "Wear and Appearance of ArmyI
Uniforms", states that:["The Army is a uniformed service where discipline is judged, in part,;by the manner in which a soldier wears a prescribed uniform, as well as by|
the individual's appearance. Therefore, a neat and well-groomed appearance
by all soldiers is fundamental to the army and contributes to building the
IIpride and esprit essential to an effective military force. A vital ingredient ofI
the Army's strength and military effectiveness is the pride and self-disciplineIthat American soldiers bring to their Service through a conservative military|
image. (...) Soldiers must take pride in their appearance at all times, in orI
out of uniform, on and off duty. (... )."16
I
The quotation shows that the primary purpose of wearing the uniformI
is not to respect the law of war, but to keep up the military uniform's tradiI
tional functions, such as identification, maintaining discipline, taking pride
1
in wearing the uniform, and creating bonds and an esprit de corps.

14 Seethe 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/r67O_i.pdf> (visited on 16 February 2004).
16 Chapter 7, Art. l.a (Persona! appearance policies) of US Army Regulation 670-1, op. cit. (note 15).

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Operational and unconventional use

Members of armed forces wear service uniforms for social functions andother uniforms are utilized for hospital or other organizational or technicaltasks. The typical uniform during actual hostilities is nowadays camouflage
clothing. Such clothing is largely adapted to the colour of the environment
in which the army is operating, in order to make the wearer less visible andmore difficult for enemy forces to target. Uniforms worn on the battlefield
are mainly designed to meet combat requirements; they are only marginally
geared to disciplinary requirements and even less to those of the law of war.
The distinction between civilians and combatants is less important for thelatter, even though the protection of civilians may be a key consideration insome types of modern armed conflict and may require precautionary measures to avoid civilian casualties.
The operational military criteria of functionality, flexibility, visibility
and even material cost determine the uniform's appearance. Distinction isstill important in the conduct of warfare, but what is particularly relevant on
the battlefield is the ability to distinguish between friends and foes, and modern technology has helped in this regard.17 Nowadays, armies are more concerned about finding new types of uniforms that can make soldiers invisible
in particular circumstances and provide enhanced protection. Efforts areunder way to devise armour that could detect threats and protect against projectiles and biological and chemical weapons by developing particle-sizedmaterials and devices nestled in the uniform's fabric.18
In combat situations, distinctive signs may replace service and even battie uniform, in particular in covert operations. They are often used to mark an
item of uniform — such as a beret, arm patch or lanyard.19 Other insignia suchas branch insignia, shoulder or sleeve markings, army nametapes or personal
nametapes may indicate that a person belongs to an armed force, but are
mostly not recognizable at a distance. Again, their purpose may be more toenable friendly combatants to recognize the wearer as one of theirs.

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17 See Identification Friend or Foe (IFF), also called "Blue Force Tracking". Self-inflicted casualties ("Blueon-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
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.

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With the growing discrepancy between opposing States in terms of
military equipment and training, armed confrontations today are increasingly asymmetrical. Unequal warring parties might, for example, be a militarily powerful modern army fighting against the weak and poorly equippedarmy of another State or, in an extreme case, the armed forces of a State
fighting against a handful of individuals. In such situations, the almost certain loser has no interest in wearing military uniforms or other .distinctive
signs. Obviously, the weak army will tend to dispense with its means of identification sooner rather than later, and individuals fighting in an asymmetrical conflict are even more likely to conceal their membership of an illegalorganization. But the powerful army, if engaged in such an unequal struggle —insofar as it takes place in the context of an armed conflict — is also tempted
to give up, at least partially, its means of identification.20
Non-uniformed members of armed forces

It is within the competence of the armed forces to decide if and when
their members are allowed to wear civilian clothes. Not all members of thearmed forces wear a uniform. Even the commander-in-chief of the armed
forces, who is often the head of State,21 usually wears civilian clothes. Other
members of the armed forces may be exempted from wearing uniform when
not performing combat functions. They include in particular back-office andheadquarters staff, sometimes working in militarily decisive posts.22 Even frontline combat personnel may temporarily be allowed to wear civilian clothes(holidays, etc.). Undercover work or espionage by members of armed forces
will, for obvious reasons, mostly take place without proper identifying clothing, even though such activities may be unlawful under international law.

20 See the State practice in W. Hays Parks, "Special forces' Wear of Non-Standard Uniforms", Chicago
Journal of International Law, Vol. 4, No. 3, 2003, pp. 524-539 and 547-560.
21 The Iraqi head of State Saddam Hussein was captured on 11 December 2003 wearing civilian clothes anddeclared 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 wasrecognized by an American tribunal on the same grounds as a prisoner of war. See: United States, United States ofAmerica 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 Marco Sassoli and Antoine
A. Bouvier (eds.), How Does Law Protect In War?Cases, Documents and Teaching Materials on Contemporary Practicein International Humanitarian Law, International Committee of the Red Cross, Geneva, 1999, pp. 923-943.
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 andtechnical services).

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Uniforms in internal armed conflicts
In internal armed conflicts, members of armed groups or other persons taking part in hostilities often appear in various types and styles of uniforms, if any.
Government armed forces engaged in non- international armed conflicts usuallywear their uniforms. Non-governmental organized armed groups often have aninterest similar to that of the armed forces of States in wearing military-style uniforms. Identification, obedience, comradeship and a display of strength are asimportant for non-State contenders as they are for the armed forces of States, andthese considerations may induce armed groups to wear uniforms. Sometimes, they
may imitate official armed forces and wear military uniforms to gain respectability.
Paramilitaries, dissident military groups and armed groups fighting in civil
wars often wear or at least imitate military uniforms, mostly battledress, which
does not prevent them from discarding the uniform if operations so require. Often
military uniforms are taken from the armed forces by armed groups, adapted totheir group if time permits, but sometimes worn unchanged, thus adding to theconfusion on the battlefield. Other civil war fighters dress in every imaginablekind of shirt or top, pants, jeans, shorts or shoes. Even these diverse garments may
enable the wearers to be identified as belonging to a particular armed group, andthus as distinguishing themselves from other fighters and also from civilians.23.
Generally accepted practice to wear uniforms

International humanitarian law has taken the important function of
the military uniform for the armies into account when affirming in Article
44(7) of Additional Protocol I the "generally accepted practice of Stateswith respect to the wearing of the uniform by combatants assigned to theregular, uniformed armed units of a Party to the conflict". Although this provision was introduced to counterbalance the loosening in Protocol I of theidentification requirement for guerrilla fighters,24 it was also intended topoint out that regular troops normally wear uniforms.
The section above on the present wearing and appearance of militaryuniforms and insignia testifies to this practice. A brief survey of some State

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 Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (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).

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103practice, heavily influenced by international humanitarian law, furthermore
shows that many States implement the rule that their soldiers must distinguish themselves from the civilian population by means of a distinctive sign,usually a military uniform, as well as by carrying their weapons openly.
However, in their military manuals only very few States maintain the rule
without reservation that their combatants must wear a uniform and, if such arule is stated, it applies only to members of regular armed forces.25 Many
States add qualifying adjectives to the general rule that soldiers of regular
armed forces must wear uniforms.26 Other States refer to the uniform or a distinctive sign27 and also to the condition of carrying arms openly.28 A considerable number of States require as a minimum distinction that "at least" arms
must be carried openly.29 Finally, some States mention irregular forces, militias or guerrilla rebels, members of which must distinguish themselves by adistinctive sign and/or the open carrying of arms.30
The principle of distinction and the significance of the militaryuniform in international humanitarian law

In accordance with the tradition progressively adopted by armies since
the seventeenth century, it was assumed by the early drafters of the law of war
that regular armies at least would distinguish themselves from the civilian
25 Dominican Republic, Military Manual (1980), p. 3; Netherlands, Military Manual (1993}, p. W-4 (seealso 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), Precis 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. 3-2O3H3) (see also Field Manual (1956), para. 6i(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), Precis No. 2, p. 8. Madagascar,
Military Manual (1994), Fiche No. 2-0, para. 2.
30 Colombia, Instructors' Manual (1999), p. 16; Kenya, LOAC Manual (undated), Precis No. 2, p. 8; South
Africa, LOAC Manual (1996), para. 26.

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population by their uniform. It is therefore not surprising that uniform wasseen as a distinguishing feature of armed forces. The purpose of the basic principle of international humanitarian law that a clear distinction must be madebetween combatants and civilians was obviously in tune with the requirement of wearing a military uniform.
The principle of distinction is the foundation on which the laws andcustoms of war rests. Article 48 of the Additional Protocol I to the Geneva
Conventions explicitly defines the principle for the first time. The provision
reads as follows:"In order to ensure respect for and protection of the civilian populationand civilian objects, the Parties to a conflict are required at all times to distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly must conduct their operations only against military objectives."
This requirement is the result of the desire to restrict warfare to actsof violence against the enemy, which are strictly necessary from a military standpoint. The provision is a cardinal rule and principle not only of
the Additional Protocol, but also of the whole of international humanitarian law.
In terms of international humanitarian law, the multifaceted goat of
the historic use of military uniforms has been largely replaced by the relatively new requirement of distinction from the civilian population. Thisobviously coincides with the factual development that modern warfare is nolonger r.estricted to warring armies, and that civilians are not anymore only
bystanders and spectators of armed confrontations between States, but are
directly affected by the hostilities. The uniform as an identification elementof armies does not anymore only and primarily relate to the need to distinguish one army from the next as in the past, but has shifted largely to be thedistinctive element in relation to the civilian population.
While there is a practice to wear uniforms in armies, there is not an
obligation in international humanitarian law to wear them.31 The wearingof civilian clothes is only illegal if it involves perfidy. Moreover, none of
the instruments of international humanitarian law give a definition of amilitary uniform. The term itself is used in connection with the generally

31 Knut Ipsen however speaks of a "self-evident" (selbstverstandlich) obligation enshrined in customary
law to wear uniform in hostilities (see Dieter Fleck (ed.), Handbuch des humanitaren Votkerrechts, Miinchen,
1994, p. 65, n. 308).

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accepted practice of States as regards the wearing of uniforms by combatants,32 perfidy, emblems of nationality and to regulate the wearing of enemy
uniform.33 But international humanitarian law remains silent on the constituent elements of a military uniform and implicitly instructs the States
Parties to specify it in their national legislation and especially their military manuals. State practice therefore determines what constitutes a military uniform.
The historical origin of the distinctive sign to identify either individual groups, units within armies or even nationalities within different
armies shows that the various kinds of distinctive elements were intended
to reflect the military traditions of armies or regiments rather than to distinguish the force from other armies, and even less to distinguish it fromthe civilian population. Nonetheless, the distinctive sign was taken as a
substitute for the uniform for purposes of identification in the law of war
newly emerging in the nineteenth century. As shown, many armies in thiscentury did not necessarily possess plain cloth uniform but only shoulder
bands of a particular colour or other distinctive signs to indicate to whichside combatants in the field belonged. Even with the spreading of the useof uniforms, the simple wearing of armlets was in exceptional situations
still acceptable to the armies enabling them to identify and to affiliate asoldier to a party to the conflict. Consistent with this tradition, international humanitarian law often refers to a distinctive emblem or sign. The
earlier reference to the emblem34 instead of a sign underlines again the origin of the sign as an element of affiliation.

32 Art. 44 (7) of the Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to theProtection 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 theLaws and Customs of War on Land, The Hague, 29 July 1899 (hereinafter "1899 Hague Regulations") andConvention (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(i)(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 miiitary uniforms).

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The military uniform as a distinctive sign

The term "fixed distinctive [emblem/sign] recognizable at a distance" in
Article 1(2) of the Hague Regulations and Article 4(A)(2)(b) of the Third Geneva
Convention relates to and clearly includes a uniform in a traditional military sense.
It has already been pointed out above that uniforms can be of various designs andcolours, and that in the absence of a general definition States must decide whichcriteria a uniform must meet. What matters for international humanitarianlaw is that combatants can be distinguished from the civilian population.
The ability to recognize combatants as such is particularly importantfor enemy forces, both for military purposes and to protect the civilian population and avoid civilian casualties. As there is no requirement for the formal
notification of uniforms by warring parties in international law,35 armies
should brief each other on their respective distinctive signs and uniforms,
thereby enabling the adversaries to be identified as combatants.
However, combatants who are captured while engaged in espionage, i.e.
when gathering information through an act of false pretences or deliberately in aclandestine manner in territory controlled by an adverse party, may be tried asspies. It should be emphasized that here a distinctive sign does not replace theuniform.36 This applies in particular to members of the armed forces acting in "disguise or under false pretence",37 and in particular if instead of their own uniform
they wear civilian clothes or the uniform of the enemy. Additional Protocol I38
and numerous military manuals39 explicitly mention the wearing of uniforms as
an essential factor in deciding whether or not a soldier was engaged in spying.

35 Only Additional Protocol I requires a party to a conflict to notify the other parties to the conflict of theincorporation 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] isunderstood 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 hts 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, l.^.a; US, Naval Handbook (1995),
para. 12.8. See also Chile, Code of Military justice (1925), Articles 252-253.

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The rare jurisprudence dealing with uniforms has emphasized the role
the uniform plays as a distinctive sign. The element of distinction wasemphasized in 1969 by a Malaysian Court in the Osman case*0 and an Israeli
military court which ruled in the Kassem case in the same year that the wearing of mottled caps and green clothes fulfilled the requirement of distinction,
as this was not the usual attire of inhabitants of the area in which (thePalestinian partisans) were operating.41 The US Air Pamphlet states that a
uniform ensures that combatants are clearly distinguishable but that "lessthan a complete uniform will suffice provided it serves to distinguish clearly
combatants from civilians".42 This example also shows that the primary aimof the distinctive sign should no longer be to identify a particular groupwithin the army, but to distinguish from the civilian population.43 For the
purposes of humanitarian law, a military uniform should therefore meet thesame requirements as other distinctive signs to serve this purpose.
The sign must be fixed, or must not be too easily taken off.44 However,even dress uniforms can be easily disposed of if necessary. What constitutes adistinctive sign is left undefined, but it is widely agreed that an armband,
insignia or distinctive headgear, beret or coat meets the requirement,45 thus
placing in question the stipulation that the sign must be fixed.46

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 Sassoli and Bouvier, op. cit. (note 21), p. 773.
41 Israel, Military Court at Ramallah, Kassem case, ludgement, 13 April 1969, reproduced in: Sassoli 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 Jean Pictet, 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, i960, p. 60; Percy Bordwell,
The Law of War between Belligerent: A History and Commentary, Fred B. Rothman & Co., Chicago, 1908, p. 232.
45 Thomas Mallison and Sally V. Mallison, "The juridical status of irregular combatants under international humanitarian law of armed conflict", Case Western journal of International Law, Vol. 9, 1977, p. 56/57;
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.

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The sign should be "recognizable at a distance". While this requirement is hardly compatible with normal military tactics to avoid discovery
and not to present an easy target, it nevertheless pertains to the ability of
combatants to recognize a civilian at a distance at which weapons could be
used to target such persons. The camouflaged battle dress worn by virtually
all armies demonstrates that this criterion of visibility cannot be applied too
stringently for combatants who do not wear uniforms but other distinctive
signs. However, camouflage cannot be equated with a disguise in ordinary
civilian clothing.47
The line between wearing a distinctive sign and dressing as a civilian48
may sometimes be difficult to draw, and attempts to call civilian attire "nonstandard-uniforms" sound rather euphemistic.49 In covert operations, identification by means of fixed distinctive signs visible at a distance or a distinguishable uniform seems to be a contradiction in terms. Special forces may
operate without wearing a military uniform and they will naturally avoid
using another distinctive sign visible at distance so as not to jeopardize theiroperation. There is a definite temptation to give up even that requirement ofidentification in order to merge with the civilian population.
All those considerations demonstrate that it cannot necessarily beestablished, from the sole fact of wearing of a military uniform or a distinctive sign recognizable at distance, whether a fighter has distinguished himself
from the civilian population.
Armed forces and uniforms

The rules laid down in Article 4 (A) of the Third Geneva Conventionof 1949 dealing with the status of prisoners of war have their source in the1907 Hague Regulations and the underlying concept of "belligerent status".
Under the heading "The Qualification of Belligerents", Article 1 of the 1907
Regulations states that:

47 See Richard Baxter, "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. 229.
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 otheritems 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_asymetrico3O4ii.htlm>.
49 Cf. Parks, op. cit. (note 20), pp. 493-560.

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109"The 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; and4. To conduct their operations in accordance with the laws and customsof war."50"In countries where militia or volunteer corps constitute the army, orform part of it, they are included under the denomination 'army'."51
These four elements indicated the common features of an army, mainlycomposed of front line soldiers, as seen at the turn of the twentieth century.
Taking into account the fact that soldiers did not always wear uniforms, but
had other means of identification especially during combat, the requirementof wearing uniforms was replaced by that of a "fixed distinctive emblem recognizable at a distance".
The law of war was intended to apply principally to armies; only armies
and their soldiers, including militias and volunteers forming part of thearmed forces, were supposed to be allowed to fight wars. It was already recognized at the time that the armed forces consist not only of combatants but
also of non-combatants, and that both were to be treated as prisoners of war
if captured by enemy forces (1907 Hague Regulations, Article 3).52 The criteria laid down in the Hague Regulations clearly relate to and are relevant in
the battlefield environment and not in back offices far away from the fight'
ing. At the beginning of the twentieth century, however, non-combatants
such as medical personnel, but more importantly the numerous categories of
non-combatant support staff backing up combatants, still formed a small
minority of the armed forces.
Under the 1907 Hague Regulations, to qualify as belligerents, militias
and corps of volunteers not forming part of the regular armed forces were
subject to the conditions set out above. Only in situations of a levee en masse,
in which civilians spontaneously take up arms to resist invading troops, wasthere no requirement that some distinctive sign be displayed, but such fight-

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

18745* 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.

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ers still have to carry arms openly and respect the laws and customs of war
when organizing resistance.53 The waging of war by other private persons hasremained outlawed: persons not forming part of the regular or irregular
armed forces do not qualify as combatants, are not prisoners of war if captured, and can be punished for their mere participation in hostilities.
1949 Convention relative to the Treatment of Prisoners of War

The Third Geneva Convention of 1949 deals in principle not witharmies, but with the specific category of prisoners of war and their treatment
and conditions of detention. It applies, however, the same underlying concept as the Hague Regulations; it did not change the substance thereof, butaltered the wording in its Article 4( A) which determines who is a prisoner ofwar.54 Members of the armed forces (sub-paragraph 1) were separated frommembers of militias and voluntary corps that are not part of the armed forces(sub-paragraph 2). The four above-mentioned criteria were spelt out onlywith regard to the latter category as necessary elements to be considered as
prisoners of war when falling into the hands of the enemy.
The 1949 POW Convention is complementary to Section I, Chapter IIof the 1907 Hague Regulations,55 which implies that the foregoing Chapter I of
those Regulations on belligerency remains unaffected and that non-combatantmembers of the armed forces also enjoy POW status in the event of capture. As
in the Hague Regulations, "[mjembers of the armed forces" in the sense of
Article 4 of the Third Geneva Convention therefore also embraces noncombatant members of the armed forces.56 Another reading could possibly
exclude the growing number of members of the armed forces not directly participating in hostilities from the status of prisoner of war. The Convention grants
specific non-combatant POW status only to medical personnel and chaplains.57

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.i GCIII).
57 GC III, Art. 4 (c). See also: M. H. F. Clark, T. Glynn and A. P. V. Rogers, "Combatant and prisoner of war
status" in: Michael A. Meyer (e<±), 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. 107-128. The authors speak of a "special non-combatant standing which is restricted to medical personnel and chaplains" (p. 110).

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Thus, a civilian who is incorporated into the armed forces becomes a memberof the military and a combatant in a legal sense, whether or not he or she actually participates in combat or is armed and uniformed.
Members of regular armed forces who profess allegiance to a government
or an authority not recognized by the adverse party include the same categories
of persons.58 The only distinguishing feature of such armed forces is simply thefact that these otherwise regular members of the armed forces are not or nolonger operating under the direct authority of a government recognized by theadversary.59 The provision is reinforced by the established rule in general international law, and specifically in the rules on State responsibility, that the defacto government or authority is liable for acts committed by its organs.60
The early drafters of the 1899 and 1907 Hague Conventions andRegulations, but also the drafters of the 1949 Geneva Conventions,'considered that regular armed forces implicitly have all those characteristics,
thereby also meeting the criteria pertaining to identification, and that there
was consequently no need to specify those requirements for the said forces.61
This does not necessarily mean that the individual members do not qualify as
prisoners of war if they do not fulfil them. States Parties are expected to takethe requisite steps to give effect to these implied elements and specificallyensure that the members of their armed forces distinguish themselves fromthe civilian population, usually by wearing a military uniform.
The case is different for irregular forces. By definition their fighters are notmembers of the regular armed forces. Contrary to persons taking part in a levee

58 GC lit, 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 theforces 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 ofAmerica 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: Marco Sassoli, "State responsibility for
violations of international humanitarian law", International Review of the Red Cross, No. 846, June 2002,
pp. 401-434; Derek Jinks, "State responsibility for the acts of private armed groups", Chicago Journal ofInternational Law, Vol. 4, Spring 2003, pp. 83-95.
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 andrespect 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).

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en masse, "irregular combatants" — partisans, saboteurs or franc-tireurs as they
were called in earlier times — are not entitled to participate in hostilities62 unlessthey have acquired belligerent status under the 1907 Hague Regulations63 and/or
enjoy POW status under the Third Geneva Convention.64 Under both bodies oflaw, irregular forces have to fulfil the four criteria of command structure, identification, carrying arms openly and conducting operations in accordance with thelaws and customs of war, and they must fight on behalf of a party to an international armed conflict. In fact, they have to be as equal as possible to regular
armed forces to enable their members to enjoy rights as prisoners of war.
In particular, the element of identification may be lacking, as it conflicts
with the possible military strategy of irregular forces of blending in with thecivilian population. In occupied territories, resistance fighters with distinctive
signs recognizable at a distance or military uniforms, if available, would risk
almost certain discovery, killing or capture,65 It is nevertheless the risk an irregular fighter has to take if he wants to qualify as a prisoner of war if captured.
Contrary to regular forces, in the case of irregular forces the four elements are
not implied but are an explicit conditio sine qua non for prisoner-of-war status.
Additional Protocol I of 1977
Article 43 of 1977 Additional Protocol I to the Geneva Conventions
defines armed forces of a party to a conflict as consisting "of organized armed
forces, groups and units which are under a command responsible to that Party
for the conduct of its subordinates (...). Such armed forces shall be subject to

62 See: Knut Doermann, "The legal situation of 'unlawful/unprivileged' combatants", International
Review of the Red Cross, No. 849, March 2003, pp. 45-74. In the so-called "Case of the German Saboteurs", theUS Supreme Court heard the case of German sympathizers who landed by submarine in the US with a view tocommitting 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.i).
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 tothe armed forces of the occupant." (text on file with author). Similarly, the Israeli Military Manual says:"Undoubtedly, the conditions mentioned [inGC 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 arecognizable distinctive sign maybe suicidal." (Israel, Manual on the Laws ofWar {1998), p. 50.

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an internal disciplinary system which, inter alia, shall enforce compliance withthe rules of international law applicable in armed conflict."The Protocol provides that all "members of the armed forces are combatants".66 Only medical
personnel and chaplains are still considered non-combatants. The Protocol
thereby definitively abolishes the general distinction between combatant andnon-combatant members of armed forces, which has become more and more
obsolete in present-day warfare. In modern armies, only a minority of members of the armed forces carry out direct combat functions, but they rely heavily on other members responsible for backing them up.67
Additional Protocol I provides a generic definition of armed forces,
which was lacking until its adoption. Every single criterion describing thearmy seventy years ago has been further adapted to new interpretations madenecessary by the developments in warfare. The new definition also allows
liberation fighters within the meaning of Article 1 (4) to be included in thedefinition of armed forces. Most strikingly, the element of identification (thedistinctive sign) is entirely lacking in the new definition. Despite this shift,
the definition was unanimously adopted during the Diplomatic Conference
leading to the adoption of the Additional Protocols.68
Military uniform and prisoner-of-war status"Members of the armed forces of a Party to the conflict, as well as
members of militias or volunteers forming part of such armed forces", "whohave fallen into the power of the enemy" are prisoners of war (Third Geneva
Convention, Article 4A( 1 )).69
Several authors emphasize that members of the armed forces do notneed to fulfil more specific criteria than that of membership of the armed
forces to be granted prisoner-of-war status if captured.70 Others affirm that66 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; Avril McDonald, "Defining the war
on terror and the status of detainees: Comments on the presentation of Judge George Aldrich", Human/tares
Vb'lkerrecht, Vol. 4, 2002, pp. 207 ff.; George H. Aldrich, "The Taliban, al Quaida and the determination of illegal
combatants", Humanitares Vb'lkerrecht,\o\. 4, 2002, p. 208 (even though he leaves the question open).

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despite the wording, a captured combatant has to fulfil every individual criterion indicated in Article 4(A)(2) of the said Convention in order to qualify as a prisoner of war, as only those elements describe properly a member of
the armed forces.71
Members of regular armed forces are prisoners of war

Like other treaties, the Geneva Conventions must be interpreted ingood faith in accordance with the ordinary meaning to be given to the termsof the treaty in their context and in the light of its objective and purpose.72
Neither the 1907 Hague Regulations nor the Third Geneva
Convention explicitly stipulate that a member of regular armed forces has tofulfil the four criteria in order to be a prisoner of war in the event of capture.
On the contrary, the four criteria, including wearing a uniform or at least a
distinctive sign, are mentioned only for irregular forces and not for regularones. The 1949 Geneva Conventions endorse this literal reading by separating the two categories into two subparagraphs.
The legal history of Article 4 (A) of the Third Geneva Convention
shows clearly that only irregular forces must fulfil the four criteria in order toqualify as prisoners of war, and that the two categories were separated deliberately. Early on, the Rapporteur of the Special Committee dealing with thequestion of definition of prisoners of war specified that only militias and volunteers not forming part of the regular armed forces should be subject to thefour criteria, and that the division into two separate subparagraphs dealing
with this question was done "lin] order to avoid any possibility of misunderstanding".73 A proposal by a working committee created to deal with the crucial provision on prisoner-of-war status, which again took over the wording of
the 1907 Hague Regulations, was rejected,74 the separation was reintroduced
and was approved without discussion or any changes in the plenary session.75

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; Alan Rosas, The Legal Status of Prisoners of War: A Study inInternational Humanitarian Law Applicable in Armed Conflicts, Helsinki, Suomalanine Tiedeakatemia, 1976,
p. 328; Mallison and Matlison, 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. MA., p. 387.
74 Seethe 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.

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In addition to the ordinary reading of Article 4 (A)(l), the travaux preparatoires show, therefore, that the regular members' of armed forces, including
members of militia and volunteer corps forming part of them, do not have toformally fulfil the four criteria to qualify as prisoners of war.
Captured members of regular forces automatically have prisoner-of-war
status because of their link with their de jure or de facto government and thearmed forces to which they belong. That status reflects the relationshipbetween the State as a subject of international law, the armed forces as organsof the State and the members of the armed forces as combatants. The very
spirit of the Third Geneva Convention is contingent on this relationshipwhich entails that members of the armed forces of a State engaged in an international armed conflict are lawfully participating in hostilities and must not
be punished for their mere participation in the conflict. It is up to the State todetermine who is a member of those forces, but it can be reasonably presumed
that regular forces usually fulfil the implied criteria for armed forces. Irregularforces cannot, however, be so easily expected to be more or less equivalent toregular forces. Partisans, franc-tireurs or resistance fighters are entitled to
POW status only if they formally fulfil conditions that resemble those implied
for regular forces. The requirement that members of irregular forces must fulfil the said criteria in order to obtain prisoner-of-war status is thus fraught
with meaning. A differentiated approach between regular and irregular forces,
as in Article 4(A), accounts for this difference and it makes sense that only
members of irregular forces are required to fulfil the four criteria.76
A literal, historical and teleological reading of Article 4(A) thus showsthat all captured members of regular armed forces automatically haveprisoner-of-war status. The decisive criterion for entitlement to prisoner-ofwar status is solely membership in regular armed forces. Only non-integrated
militias or volunteers would therefore have to undergo what some have termedthe "legal test for prisoner-of-war status"77 in order to establish that they wereoperating in accordance with the four above-mentioned conditions.

76 In the Swarska case however, an Israeli military court ruled that even regular soldiers of the Egyptianarmy 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 Ml, 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.

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Collective status determination?

Along the same lines, it would be a misinterpretation of the Third
Geneva Convention if States parties were collectively and systematically toquestion its applicability to regular enemy armed forces engaged in an international armed conflict, by asking whether the adversary's armed forces as awhole do not fulfil a particular criterion and calling for their members not toqualify as prisoners of war if captured. In the heated environment of war, every
party to a conflict usually accuses the enemy of not conducting its operations
in conformity with the laws and customs of war and being responsible for grossand systematic violations. It might also be argued that enemy soldiers do notwear uniforms or even a "fixed distinctive sign recognizable at a distance".78
Such arguments were recently advanced in the international armed
conflict between the United States of America and Afghanistan in 200L
Conflicting statements by the US administration79 seem to converge on the
point that, although the Third Geneva Convention applies to the Taliban
forces, the captured Taliban soldiers per se do not qualify as prisoners of war.
While the White House has not clarified exactly why these fighters do not
merit prisoner-of-war status, the US Secretary of Defense has argued that the
Taliban soldiers failed to meet the requirements set out in Article 4(A)(2).
In particular, he mentioned the absence of uniforms.80
This is not the place to establish whether the Taliban soldiers failed to wear
uniforms or other distinctive signs recognizable at a distance and whether they did
or did not distinguish themselves from the civilian population.81 Suffice it to saythat in practical terms the distinction between the Taliban forces and civilian

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. 475-480.
80 "With respect to the Taliban, the Taliban also did not wear uniforms, they did not have insignia, they did notcarry 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 addedthat "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).

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Afghans does not seem to have been a general problem for the players engaged
in the military confrontation between the United States and Afghanistan,82
even though the problem did arise occasionally and certainly more and more
frequently after the dissolution of the Taliban forces. On the other hand, theTaliban forces certainly were not standard armed forces and did not wear clothing that resembled traditional military uniforms.83 From a standpoint of humanitarian law, and for the sake of the civilian population, it is the overall requirement of distinction between military and civilian which is important, and not arather formal element that can, however, greatly facilitate the distinction.
In the Second World War of 1939-1945, there was no precedent for ageneral refusal of prisoner-of-war status for members of the armies which
failed as a collective unit to comply with one of the four criteria, in particular the obligation to conduct operations in conformity with the laws and customs of war. Even Nazi Germany did not refuse POW status to members ofarmed forces on such grounds,84 nor were German soldiers denied prisonerof-war status because of military orders contrary in many respects to the lawof war. Practice after the Second World War furthermore shows that such aninterpretation, in particular that soldiers should be deprived of prisoner-ofwar status for allegedly having committed war crimes, was vehemently
opposed, including by the United States.85 The latter country in particular
was rather generous in extending POW status to members of non-State entities even if they did not necessarily fulfil all the criteria of Article 4 (A)(2).86

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 inthe 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 muchless 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 theDistrict Court for the Eastern District of Virginia, Alexandria Division (US government's opposition to thedefendant'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 (N WP1-14M) 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 prisonerof-war protection if they were carrying arms openly at the time of capture" (12.7.1).

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Resurgence of the belligerency concept?

The concept of belligerency was developed during the nineteenth century to bring the law of war into operation in internal wars that were equivalent in intensity, scale and duration to regular international wars.87 With thegrowing reliance on objective criteria in contemporary humanitarian law88
and the unwillingness to take the politically loaded decision of recognitionof belligerency, this instrument is now almost obsolete,89
In inter-State armed conflicts, the equality between warring parties
was supposed to exist between the opposing States and their respective
armed forces. The members of the armed forces were likewise supposed to beon an equal footing and not to be punished for their mere participation in
hostilities. In basing arguments to deny prisoner-of-war status to a wholegroup of fighters of regular armed forces on a single and rather formal element, there is the obvious danger that States would be tempted to deny belligerent status to their adversaries because of the nature or origin of the conflict or even cultural differences.
The failure of a combatant to distinguish him or herself from thecivilian population

Normally, a captured member of the armed forces is a prisoner of war
and is entitled to the protection of the Third Geneva Convention. The
automatic granting of prisoner-of-war status to captured members of regular
armed forces does not imply that in the present law of armed conflict the dis-

87 Dietrich Schindler, "State of war, belligerency, armed conflict" in Antonio Cassese (ed.), The New
Humanitarian Law of Armed Conflict, Editorial Scientifica, Naples, 1979, pp. 1-20; Eibe H. Reibel, "Recognitionof 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. 167-170.
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 the1949 Geneva Conventions, in Art. 1 of Additional Protocol to the Geneva Conventions of 12 August 1949, andrelating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977
(hereinafter "AP II" or "Additional Protocol M"), 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 thestate of war or belligerency may witness a certain revival in future wars. The new significance which theconceptof 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."

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tinctive sign recognizable at distance and its most representative form, themilitary uniform, are not relevant. On the contra'ry, to protect the civilian
population as much as possible from the effects of war, combatants must distinguish themselves from the civilian population.
"A fundamental premise of the Geneva Conventions has been that toearn the right to protection as military fighters, soldiers must distinguishthemselves from civilians by wearing uniforms and carrying their weapons
openly (...). Fighters, who attempt to take advantage of civilians by hiding
among them in civilian dress, with their weapons out of view, lose theirclaim to be treated as soldiers. The law thus attempts to encourage fighters
to avoid placing civilians in unconscionable jeopardy."90
As we have seen in the State practice, a considerable number ofStates firmly hold on to the traditional requirement of wearing a uniform,
even though it is often accompanied by qualifying adjectives. In the lightof this practice, it would be difficult to affirm that soldiers are not obliged
to wear a distinctive sign in military operations in addition to carrying
their arms openly. On the other hand, it would be contrary to the current
practice if overly stringent conditions were to be attached to this crite'
rion of identification solely by uniforms or distinctive signs. Only an
examination on a case-by-case basis, taking into account all circumstances, makes it possible to assess whether the principle of distinction
between combatants and civilian population was upheld in a particularsituation or not.91
It is an open question whether or not a member of the regular
armed forces who falls into the power of an adverse party while failingto meet the requirement of distinction does forfeit his right to be a prisoner of war. Such a forfeiting of the status is not explicitly mentioned in
the 1907 Hague Regulations nor in the Third Geneva Convention.
Additional Protocol I foresees the forfeiting for spies92 and in particular

90 Remarks by Judge Abraham D. Sofaer, 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. 466.
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 ofLords (Privy Council) on Appeal from the Federal Court, cited from Sassoli 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).

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in Article 44(4)9J if combatants fail to meet the requirement of distinction.
However, the specific rule in Protocol I is related to an exceptional situationand the purpose of this provision is to accommodate combatants in situationsof warfare in occupied territories and in conflicts described in Article 1(4) of
the Protocol.94 The provision comes close to Article 4(A)(2) of the Third
Geneva Convention insofar as members of irregular forces do not qualify as
prisoners of war if they fail to distinguish themselves from the civilian population and in particular do not fulfil the requirement of wearing a distinctive
sign and of carrying weapons openly mentioned in this disposition.
But State practice95 and jurisprudence96 indicate clearly that combatants who do not distinguish themselves from the civilian population while
engaged in an attack or in a military operation prior to an attack shall forfeit
their rights as prisoners of war. During the First and Second World Wars,
armed persons who were captured not wearing uniforms, were often executedon the spot as they were not considered to be combatants, but outlaws.97 The
system of the Third Geneva Convention and the Additional Protocol I
which foresees a status determination by a competent tribunal if there is

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 toprisoners 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 thesecond 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 andreservations made upon ratification of AP 1,19 May 1999, para. 7(a); South Korea, Declarations made uponratification 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.

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doubt as to his or her prisoner of war status98, seems to reinforce the position
that there is a possibility for the forfeiting of prisoner-of-war status when acombatant fails to distinguish himself.
The failure of a combatant to distinguish himself from the civilian population is certainly a breach of the law of war, but may even constitute perfidy.99 In particular, the wearing of civilian clothes as a disguise to kill, woundor capture the enemy is considered perfidious.100 Acts of perfidy may moreover be punished as war crimes.101
A member of the armed forces who falls into the power of an adverse
party while engaged in espionage does as well not have the right to the statusof prisoner of war and may be treated as a spy.102 Contrary to perfidy, theresorting to this method of combat is not prohibited and the gathering of
information in uniform is not considered as espionage. A captured memberof the armed forces engaged in espionage is not protected by the Third
Geneva Convention, but as any other spy, who is not member of the armed
forces, he is a civilian protected by the Fourth Geneva Convention.
Military uniform and humanitarian law in non-international armed
conflicts

The element of distinction between combatants and civilians is a valid
requirement in non-international armed conflicts as well. While combatants
in international armed conflicts are defined as members of armed forces, persons taking a direct part in an internal armed conflict are often also called"combatants". Here, this designation is a generic term. Such fighters are thus
not defined by it in terms of lawful participation in hostilities, but of direct participation in hostilities of a non-international character. As in international

98 GC ill, Art. 5 (2) and AP I Art. 45. See also Yasmin Naqvi, "Doubtful prisoner-of-war Status",
International Review of the Red Cross, No. 847, September 2002, pp. 571-595.
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 (i)(c). See also Art. 23 (b) of the1907 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 Valentine jobst, "Is the wearing of the enemy's uniform a violation of the laws of warl", American Journal of International Law, Vol. 35,1941, pp. 435-442. 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. at. (note 2o),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 (i) and (2).

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armed conflicts, civilians lose their protection when and for such time as theytake direct part in hostilities, and may then be the object of an attack.103
Armed forces and even dissident armed forces104 may wear uniforms or distinctive signs in civil wars. The lawfulness of wearing this element of identification is governed by national law, as is the question of direct participation in hostilities. Conversely, non-State parties to a non-international armed conflict are
not allowed to wear military uniforms according to national law, which restricts
their use. Under international humanitarian law, however, nothing prevents
dissident armed forces or other organized armed groups from wearing such a distinctive sign, although they are not obliged to do so. For instance, a Report on
the Practice of Indonesia based on interviews with senior army officers states:"There is no national regulation for the implementation of the distinction
principle in non-international armed conflict. However, in certain insurgencies during the 1950's and the 1960's, Indonesian armed forces used uniforms
as one of the criteria to distinguish between rebels and civilians (...). Though
the uniforms used by some rebels did not resemble the military uniform, forexample, the rebels used no insignia or other emblems, their differing colour
was the main criterion by which the military was able to distinguish themfrom civilians."105
But even non-State entities and individuals engaged in non-internationalarmed conflicts are obliged to observe the rules on the conduct of hostilities andnotably to uphold the principle of distinction in their operations.106All standards that must be respected are included in the prohibition of indiscriminate
attacks, the requirement of proportionality and of the precautions to be taken in
attacks. In particular, in order to protect the civilian population and civilian
objects, the latter requirement of precautions against the effects of attacks can only
be met by fighters visibly distinguishing themselves from the civilian population.

103 AP II, Art. 13(3), and Art. 3 common to the 1949 Geneva Conventions (protection of "persons taking noactive part in hostilities").
104APII, 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, Decisionon the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 225: "State practice showsthat general principles of customary international law have evolved with regard to internal armed conflict also inareas 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 acase 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>).

I

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Conclusion

From its origins, the military uniform which came into general use withthe appearance of large national armies in the 17th century had the primaryfunction of identification. The belonging to a particular armed force distinguished the soldiers from their enemies and the military uniform had and hasother welcomed functions such as promoting obedience, comradeship and adisplay of strength. International humanitarian law introduced to this identification element another dimension, namely the cardinal principle of distinction between combatants and civilians. Combatants when engaged inmilitary operations have to distinguish themselves from the civilian population to protect them from the effects of hostilities and to restrict warfare to
military objectives. The general use of military uniforms on the battlefield
doubtless helps to achieve this overall goal. There is however no generalobligation for soldiers to wear uniform. The fact that wearing of military uniforms is potentially able to reduce the dangers for the civilian population
during war and even if the practice of wearing uniforms is expected and iscommonly followed, it is not a prerequisite for the definition of armed forces.
States are under the obligation to implement the principle of distinction, but
the uniform is not the only and sufficient means to do so. Armies sometimes,
at least in exceptional circumstances and especially in covert operations, do
not always wear uniforms when engaged in military operations.
The wording, legal history and the teleological interpretation of theThird Geneva Convention shows, furthermore, that members of regular
armed forces — as opposed to irregular armed forces — are combatants
owing to their affiliation with a party to an international armed conflict anddo not have to fulfil specific constitutive criteria — including a distinctive
sign and in particular the wearing of a military uniform — to qualify as prisoners of war in case of capture. At the same time, it is a misinterpretation of
the Geneva Conventions to deny prisoner-of-war status to all captured combatants belonging to the regular armed forces of a State on the sole basis thatthey failed to wear a uniform. However, individual members of regular armed
forces can possibly violate the requirement of distinction from the civilian
population when not wearing a uniform — and especially in case of perfidy — and can forfeit their status as prisoners of war. For the sake of the protection of the civilian population, the military uniform can and should play
an important part in meeting the requirement of distinction.

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Resume:Les uniformes militaires et le droit de la guerre
Toni Pfanner
Depuis ses origines, Vuniforme militaire} qui a connu une utilisation generate
avec Vapparition de grandes armies nationales au XVIP siecle, avail une fonction
primaire a"identification. L appartenance a une force armee particuliere distinguait
les soldats de lews ennemis. En outre, Vuniforme militaire avait et a d'autres fonctions compUmentaires comme la promotion de Vobiissance, la camaraderie et lamanifestation de la force. Le droit international humanitaire ajoute a la fonctiond'identification une autre dimension, a savoir la distinction entre combattants etcivils. Les combattants engages dans des operations militaires doivent se distinguer
de la population civile pour proteger celle-ci des effets des hostilites et limiter laconduite de la guerre aux objectifs militaires. Dans cet article, Vauteur montre lesramifications juridiques Hies au port de Vuniforme militaire et le principe de distinction. II postule en particulier que les membres de forces armies rigulieres — par
opposition aux forces armies irrigulieres — ont le droit de participer aux hostilites
de par leur affiliation avec une partie a un conftit arrne international et ils ne doivent pas remplir des criteres constitutifs specifiques — comme un signe distinctif(giniralement le port d'un uniforme militaire) — pour etre prisonniers de guerre
en cas de capture. Lauteur considere que refuser collectivement le statut de prison'nier de guerre a des combattants captures qui appartiennent a des forces armies
d'un Etat en se basant sur le seul fait quits nont pas endossi Vuniforme militaire
est une interpretation erronee des Conventions de Geneve. Les membres individuels des forces armies peuvent cependant violer Vexigence de distinction de lapopulation civile s'ils ne portent pas Vuniforme militaire — en particulier, dans lecas de la perfidie — et perdre en consequence leur droit a etre considiris commeprisonniers de guerre. Pour la protection de la population civile Vuniforme militairepeut et doit jouer un role important pour satisfaire Vexigence de distinction entre
combattant et civil.

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German Army Guard of Honour / la garde d'honneur de l'armee allemande, Allemagne, 1958,(anonyme).

Insignia and emblems / insignes et emblemes, tnuse'e suisse de l'armee (www.armeemuseum.ch).

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05

a.
aas
v

6

s
u
u

Governmental soldiers / soldats gouvernementaux, Congo (Republique democratique), 2000.

CQ

2
U

u

Kenya, 2004.

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CO

Q

O

U

i
f
Transjordanian soldier near Hebron / soldat transjordanien pres d'Hebron, Palestine, 1949.

Afghan combatants / combattants afghans, 2001.

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MILITARY UNIFORMS AND THE LAW OF WAR

Chechen fighters / combattants tchetenes, Russie/Tchetchenie, 1995, (anonyme).

B
ca
O

3
of
tu
O

U
U

Army soldiers / soldats de l'armee salvadoriehne, El Salvador, 1983.

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c

I
V

SO

o

Female member of government armed forces/militias standing on guard / femmes membres des forces
armees/milices gouvernementales montant la garde, Liberia, 2003.

I
C

I
u
u

Members of government armed forces/militias in a pick-up truck / membres des forces armees/milices gouvernementales dans une camionette, Liberia, 2003.

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MILITARY UNIFORMS AND THE LAW OF WAR

Mexican revolutionaries / revolutionnaires mexicains, 1911 (Hugo Brehme, Bazar de Fotografia Juan M.
Casasola, Mexico City).

Combatants in the Second Afghan War / combattants dans la seconde guerre afghane, Afghanistan, 1878
(John Burke, Kodak Museum, Harrow/UK).