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as a surprise attack by enemy forces, when military personnel are unable to dress in theiruniforms before resisting the enemy’s assault. 114Military personnel not in uniform may resist an attack, so long as they are not wearingthe enemy’s uniform and do not kill or wound treacherously. 115 For example, military personnelnot in uniform who resist an attack, and who do not purposefully seek to conceal their status ascombatants, commit no violation of the law of war and remain entitled to the privileges ofcombatant status. The normal wearing of uniforms or other distinctive emblems, however,should resume as soon as practicable because such wear helps protect the civilian populationfrom erroneous attack by helping to distinguish military forces from the civilian population. 1165.5.8.2 AP I Obligation for Combatants to Distinguish Themselves During Attacksor Military Operations Preparatory to an Attack. AP I provides that: “combatants are obliged todistinguish themselves from the civilian population while they are engaged in an attack or in amilitary operation preparatory to an attack.” 117The AP I provision only partially describes the obligation under customary internationallaw of combatants to distinguish themselves from the civilian population. Under customaryinternational law, the obligation of combatants to distinguish themselves is a general obligationthat the armed forces have as a group and is not limited to times when they are engaged in anattack or in a military operation preparatory to an attack. 118 Moreover, measures such as wearinginsignia or other distinctive emblems may be of less practical significance during an attack.During an attack, combatants are likely to be distinguishable based on their activities more thanany insignia or devices they are wearing.5.6 DISCRIMINATION IN CONDUCTING ATTACKSUnder the principle of distinction, combatants may make enemy combatants and othermilitary objectives the object of attack, but may not make the civilian population and otherprotected persons and objects the object of attack. 1195.6.1 Persons, Objects, and Locations That Are Not Protected From Being Made theObject of Attack. Combatants may make enemy combatants and other military objectives theobject of attack. 120114 For example, SPAIGHT, AIR POWER AND WAR RIGHTS 101 (“In the second world war, too, there were instances inwhich pilots fought en dishabille. For example, in Kenya a pilot of the South African Air Force happened to bewearing nothing but a singlet when Italian bombers approached, and so clad (or unclad) he dashed to his aircraft andjoined in the fight.”).115 Refer to § 5.23 (Use of Enemy Flags, Insignia, and Military Uniforms); § 5.22 (Treachery or Perfidy Used to Killor Wound).116 Refer to § 5.14.5 (Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces toDistinguish Themselves From the Civilian Population).117 AP I art. 44(3).118 Refer to § 4.6.1.1 (GPW 4A(2) Conditions Required on a Group Basis).119 Refer to § 2.5.2 (Discriminating in Conducting Attacks Against the Enemy).203

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