Practice Relating to Rule 65. Perfidy
Section I. Simulation of civilian status
Israel’s Manual on the Laws of War (1998) provides several examples of perfidious acts. Notably, it states: “It is forbidden to pose as non-combatant civilians. When the arena of warfare does not yield a clear picture as to who is a civilian and who is a disguised combatant, civilians will be ultimately harmed.”
Israel’s Manual on the Rules of Warfare (2006) states that it is forbidden to “adopt the disguise of a non-combatant civilian. Where no clear picture emerges from the battle front as to who is a civilian and who is a disguised combatant, civilians are liable to get hurt.”
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
In the Swarka case
before an Israeli Military Court in 1974, the defendants had entered Israel from Egypt and launched rockets on a civilian settlement. When brought to trial, they claimed that they were entitled to prisoner of war status under Article 4 of the 1949 Geneva Convention III, since they were soldiers in the Egyptian regular army and had committed the actions on the orders of their commander. The Prosecutor argued that they could not benefit from POW status since they wore civilian clothes when they carried out their operations. The Court observed that neither the 1907 Hague Regulations nor the 1949 Geneva Conventions required that members of regular forces had to wear uniforms at the time of capture to be entitled to their protection. However, it considered that “it would be quite illogical to regard the duty of wearing uniform (in the sense of a distinctive sign) as imposed only on the quasi-military units referred to in Article 4(A)(2) [of the 1949 Geneva Convention III] and not on soldiers of regular military forces”. It concluded that the defendants were to be prosecuted as saboteurs.
At the final plenary meeting of the CDDH, the Israeli delegation declared: “Israel regards [Article 37 of the 1977 Additional Protocol I], and in particular its paragraph 1(c), as an essential and basic provision. It reaffirms the fundamental distinction made in customary law between combatants and non-combatants.”