相关规则
Australia
Practice Relating to Rule 65. Perfidy
Section D. Simulation of surrender
Australia’s Commanders’ Guide (1994) provides: “Acts which constitute perfidy include feigning of … an intent to … surrender.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 826(a) (naval warfare) and § 902(a) (land warfare).
In a section entitled “Perfidy”, The Guide states: “It is unlawful to feign surrender for the purpose of inviting an enemy to lower his guard.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 505.
The Guide further states: “The following examples constitute grave breaches or serious war crimes likely to warrant institution of criminal proceedings: … feigning surrender in order to obtain military advantage.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1305(r).
Australia’s Defence Force Manual (1994) states: “Acts which constitute perfidy include feigning of … an intent to … surrender.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 703(a) (land warfare); see also § 636(b) (naval warfare) and § 910.
The manual further states: “The following examples constitute grave breaches or serious war crimes likely to warrant institution of criminal proceedings: … feigning surrender in order to obtain military advantage.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1315(r).
Australia’s LOAC Manual (2006) states: “Acts which constitute perfidy include feigning of … an intent to … surrender.”
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.3.
In its chapter on “Maritime Operations”, the manual states: “Perfidious acts … include the launching of an attack while feigning … surrender or distress, eg by sending a distress signal or by the crew taking to life rafts”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 6.36.
In its chapter on “Compliance”, the manual states that the 1977 Additional Protocol I extends the definition of grave breaches to include “the perfidious use of the distinctive emblem of the Red Cross, Red Crescent, Red Crystal and other Red Cross societies, or of other protective signs recognised by the Conventions or the Protocol”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.26.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides: “A person who, in Australia or elsewhere, commits a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence.”
Australia, Geneva Conventions Act, 1957, as amended in 2002, Section 7(1).
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act (1995).
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “improper use of a flag of truce … in order to feign an intention to negotiate when there is no such intention on the part of the perpetrator … [and which] results in deaths or serious personal injury”, in international armed conflicts.
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.41.
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to serious war crimes that are committed in the course of an international armed conflict:
War crime – improper use of a flag of truce
A person (the perpetrator) commits an offence if:
(a) the perpetrator uses a flag of truce; and
(b) the perpetrator uses the flag in order to feign an intention to negotiate when there is no such intention on the part of the perpetrator; and
(c) the perpetrator knows of, or is reckless as to, the illegal nature of such use of the flag; and
(d) the perpetrator’s conduct results in death or serious personal injury; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.41, p. 329.
