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4.18.4 Activities That Constitute “Engaging in Hostilities” by Private Persons. Certainactivities constitute “engaging in hostilities,” i.e., when done by private persons, make themliable to treatment in one or more respects by the enemy State as unprivileged belligerents.4.18.4.1 Being Part of a Hostile, Non-State Armed Group. Being part of a non-State armed group that is engaged in hostilities against a State is a form of engaging in hostilitiesthat makes private persons liable to treatment in one or more respects as unprivilegedbelligerents by that State. 383 Being part of a non-State armed group may involve formallyjoining the group or simply participating sufficiently in its activities to be deemed part of it.Whether a person has joined a non-State armed group may be a difficult factual question.Non-State armed groups may not use formal indicia of membership (e.g., uniforms or identitycards), or members of these groups may seek to conceal their association with the group. 384 Itmay be appropriate to use circumstantial or functional information to assess whether a person ispart of a non-State armed group. 385In addition, non-State armed groups may also rely on individuals who are not members ofthe groups, but who are functionally part of those organizations. Their support might beparticularly important to enable the non-State armed group to conduct and sustain itsoperations. 386 For example, these individuals might participate sufficiently in the activities ofthe group or support its operations substantially in a way that is analogous to the support thatpersons authorized to accompany the armed forces provide to the armed forces. 387 Thesequarter.”); Wharton, Com. Am. Law, § 221, VII MOORE’S DIGEST 175 (“If war were to be waged by private parties,operating according to the whims of individual leaders, every place that was seized would be sacked and outraged;and war would be the pretence to satiate private greed and spite.”).383 See, e.g., In re Guantanamo Bay Litigation, Respondents’ Memorandum Regarding the Government’s DetentionAuthority Relative to Detainees Held at Guantanamo Bay, Misc. No. 08-442, 5-6 (D.D.C., Mar. 13, 2009) (“Becausethe use of force includes the power of detention, the United States has the authority to detain those who were part ofal-Qaida and Taliban forces. Indeed, long-standing U.S. jurisprudence, as well as law-of-war principles, recognizethat members of enemy forces can be detained even if ‘they have not actually committed or attempted to commit anyact of depredation or entered the theatre or zone of active military operations.’ Accordingly, under the AUMF asinformed by law-of-war principles, it is enough that an individual was part of al-Qaida or Taliban forces, theprincipal organizations that fall within the AUMF’s authorization of force.”) (internal citations omitted); Hamdan v.Rumsfeld, 548 U.S. 557, 693 (2006) (Thomas, J., dissenting) (“For well over a century it has been established that tounite with banditti, jayhawkers, guerillas, or any other unauthorized marauders is a high offence against the laws ofwar; the offence is complete when the band is organized or joined.”) (internal emphasis and quotations omitted).384 Refer to § 17.5.1.1 (Increased Difficulty in Identifying Enemy Forces and Other Military Objectives).385 See, e.g., Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010) (“Although it is clear al Qaeda has, or at leastat one time had, a particular organizational structure, … , the details of its structure are generally unknown, … , butit is thought to be somewhat amorphous, … . As a result, it is impossible to provide an exhaustive list of criteria fordetermining whether an individual is ‘part of’ al Qaeda. That determination must be made on a case-by-case basisby using a functional rather than a formal approach and by focusing upon the actions of the individual in relation tothe organization.”) (internal citations omitted).386 Refer to § 17.5.1.2 (Different Support Structures for Non-State Armed Groups).387 Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).160