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individuals may be regarded as constructively part of the group, even if they are, in fact, notformal members of the group. 3884.18.4.2 Other Hostile Acts. In addition to being part of or substantiallysupporting a hostile, non-State armed group, other hostile acts can make a person liable totreatment in one or more respects as an unprivileged belligerent under the law of war. Forexample, private persons who bear arms against enemy personnel or who attempt to kill or injureenemy personnel would become liable to being made the object of attack. 389 Performing spying,sabotage, and other hostile activities behind enemy lines would render a person liable toprosecution for such conduct. 3904.18.5 Private Persons Who Engage in Hostilities and the Law of War. As in the cases ofspying and sabotage, under international law private enemy nationals are not generally regardedas being prohibited from engaging in hostilities during international armed conflict.International law does recognize, however, that opposing States may punish such persons. 391Nonetheless, like other forms of unprivileged belligerency, private engagement in hostilities hasbeen described in some contexts as a “war crime” or as a violation of international law or the lawof war. 392388 Hedges v. Obama, No. 12-3644, Reply Brief for Defendant-Appellant, 11-12 (2d Cir. Sept. 20, 2012) (“Moregenerally, ‘substantial support’ encompasses individuals who, even if not considered part of the irregular enemyforces at issue in the current conflict, bear sufficiently close ties to those forces and provide them support thatwarrants their detention consistent with the law of war. The substantial support concept, as properly informed bythe law of war, would include people whose support for al-Qaeda or the Taliban makes them analogous to those who‘accompany the armed forces without actually being members thereof, such as civilian members of military aircraftcrews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare ofthe armed forces.’ Such substantial supporters are, in short, ‘more or less part of the armed force’ and subject tolaw-of-war detention for the duration of the conflict.”) (internal citations omitted).389 Refer to § 5.9 (Civilians Taking a Direct Part in Hostilities).390 Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).391 See GREENSPAN, MODERN LAW OF LAND WARFARE 61 (“Guerillas who do not comply with the provisions laiddown [of GPW art. 4(A)(2)] may perform patriotic service for their country (just as espionage agents often do), yetsuch illegitimate hostilities come within the technical heading of war crimes, and their perpetrators must be preparedto take their punishment if captured.”); United States v. List, et al. (The Hostage Case), XI TRIALS OF WARCRIMINALS BEFORE THE NMT 1245 (“Just as the spy may act lawfully for his country and at the same time be a warcriminal to the enemy, so guerrillas may render great service to their country and, in the event of success, becomeheroes even, still they remain war criminals in the eyes of the enemy and may be treated as such.”); HERBERT C.FOOKS, PRISONERS OF WAR 40 (1924) (“Individuals who undertake to wage a war in their private capacity are notentitled to the treatment of prisoners of war. The enemy may punish them when captured as war criminals. Thesafety of the troops compels the enemy to punish such hostilities as acts of illegitimate warfare, and internationallaw gives the right to do so. Nations do not prohibit its citizens from such acts, however, for they may be mosthelpful to it just as spying is helpful.”).392 See, e.g., James Speed, Attorney General, Military Commissions, July 1865, 11 OPINIONS OF THE ATTORNEYGENERAL 297, 314 (1869) (“A bushwhacker, a jayhawker, a bandit, a war rebel, an assassin, being public enemies,may be tried, condemned, and executed as offenders against the laws of war.”).161