Military uniforms and the law of war
31-03-2004 Article, International Review of the Red Cross, No. 853, by Toni Pfanner
The author first studies the wearing and the functions of military uniforms throughout history to then shed light on the legal issues raised. Discussing the legal framework of the use of uniforms and its ramifications in more detail, he contributes to the debates on the consequences of the lack of wearing a military uniform in contemporary armed conflicts, and the link with the granting of prisoner of war status to members of the armed forces of a Party to a conflict failing to wear uniforms in combat.
From its origins, the military uniform, which came into general use with the appearance of large national armies in the 17th century, had a primary function of identification. The belonging to a particular armed force distinguished the soldiers from their enemies. The military uniform had and has other complementary functions such as promoting obedience, comradeship and a display of strength. International humanitarian law introduced to this identification element another dimension, namely the distinction between combatants and civilians. Combatants, when engaged in military operations, have to distinguish themselves from the civilian population to protect it from the effects of hostilities and to restrict warfare to military objectives. In this article, the author shows the legal ramifications related tothewearing of a military uniform and the principle of distinction. In particular, he states that members of regular armed forces –as opposed to irregular armed forces – are entitled to participate in hostilities due their affiliation with a party to an international armed conflict and they do not have to fulfil specific constitutive criteria – such as the wearing of a distinctive sign, generally a military uniform – to qualify as prisoners of war in case of capture. He considers that it is a misinterpretation of the Geneva Conventions to deny prisoner-of-war status to all captured combatants belonging to the armed forces of a State on the sole basis that they 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.