Practice Relating to Rule 58. Improper Use of the White Flag of Truce
Note: For practice concerning the simulation of surrender and concerning the simulation of an intention to negotiate under the white flag of truce as acts considered perfidious, see Rule 65, Sections D and E respectively. For practice concerning the use of the white flag of truce by parlementaires, see Rule 66, Section B.
Hague Regulations (1899)
Article 23(f) of the 1899 Hague Regulations provides: “It is especially prohibited … to make improper use of a flag of truce.”
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, Article 23(f).
Hague Regulations (1907)
Article 23(f) of the 1907 Hague Regulations provides: “It is especially forbidden … to make improper use of a flag of truce.”
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 23(f).
Additional Protocol I
Article 38(1) of the 1977 Additional Protocol I provides: “It is … prohibited to misuse deliberately in an armed conflict … the flag of truce.”
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 38(1). Article 38 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 103.
Additional Protocol II (draft)
Article 23(2) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided: “It is forbidden to make improper use of the flag of truce.”
CDDH, Official Records, Vol. I, Part Three, Draft Additional Protocols, June 1973, p. 39.
This proposal was amended and adopted by consensus in Committee III of the CDDH.
CDDH, Official Records, Vol. XV, CDDH/III/SR.49, 4 June 1976, p. 109, § 8.
The approved text provided that it was “forbidden to misuse deliberately in armed conflict other internationally recognized protective emblems … including the flag of truce”.
CDDH, Official Records, Vol. XV, CDDH/236/Rev.1, 21 April–11 June 1976, p. 421.
Eventually, however, it was deleted by consensus in the plenary. CDDH, Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 129.
ICC Statute
Under Article 8(2)(b)(vii) of the 1998 ICC Statute, “[m]aking improper use of a flag of truce … resulting in death or serious personal injury” is a war crime in international armed conflicts.
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2)(b)(vii).
Lieber Code
Article 114 of the 1863 Lieber Code provides: “If it be discovered, and fairly proved, that a flag of truce has been abused for surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy.”
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 114.
Lieber Code
Article 117 of the 1863 Lieber Code considers it “an act of bad faith, of infamy or fiendishness to deceive the enemy by flags of protection”.
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 117.
Brussels Declaration
Article 13(f) of the 1874 Brussels Declaration especially forbids “[m]aking improper use of a flag of truce”.
Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, Article 13(f).
Oxford Manual
Article 8(d) of the 1880 Oxford Manual provides: “It is forbidden … to make improper use … of the flag of truce.”
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 8(d).
Report of the Commission on Responsibility
Based on several documents supplying evidence of outrages committed during the First World War, the 1919 Report of the Commission on Responsibility lists violations of the laws and customs of war which should be subject to criminal prosecution, including “misuse of flags”.
Report submitted to the Preliminary Conference of Versailles by the Commission on Responsibility of the Authors of the War and on Enforcement of Penalties, Versailles, 29 March 1919.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 38 of the 1977 Additional Protocol I.
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 38 of the 1977 Additional Protocol I.
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(b)(vii), “[m]aking improper use of a flag of truce … resulting in death or serious personal injury” is a war crime in international armed conflicts.
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 6(1)(b)(vii).
Argentina
Argentina’s Law of War Manual (1969) provides that the improper use of the flag of parlementaires is a breach of good faith. It states, however, that the use said to be “improper” applies only in combat operations.
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 1.017.
Argentina
Argentina’s Law of War Manual (1989) states: “It is prohibited … to deliberately abuse … internationally recognized protective emblems, signs or signals, including the flag of parlementaires.”
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.06(1).
Australia
Australia’s Commanders’ Guide (1994) provides: “The following examples constitute grave breaches or serious war crimes likely to warrant institution of criminal proceedings: … misusing or abusing … any … protected emblem for the purpose of gaining protection to which the user would not otherwise be entitled.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1305(l).
Australia
Australia’s Defence Force Manual (1994) provides: “Deliberate misuse of … protective symbols and emblems, signs and signals, including the flag of truce … is … prohibited.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 704.
The manual further states: “The following examples constitute grave breaches or serious war crimes likely to warrant institution of criminal proceedings: … misusing or abusing … any … protected emblem for the purpose of gaining protection to which the user would not otherwise be entitled.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1315(l).
Australia
Australia’s LOAC Manual (2006) states: “Deliberate misuse of … protective symbols and emblems, signs and signals, including the flag of truce … is … prohibited.”
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.5.
The manual further states:
Provisions of the Hague Regulations 1907 are now recognised as part of customary law. Those regulations provide that the following acts are “especially forbidden”:
…
• to make improper use of the flag of truce.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.29.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Teaching Manual for Officers (1994) states: “It is prohibited to abuse the protective signs provided for by the [1949 Geneva] Conventions and [the 1977 Additional Protocol I]. Example: camouflaging arms and ammunition in a vehicle or a building flying … the white flag.”
Belgium, Droit de la Guerre, Manuel d’Instruction pour Officiers, Etat-Major Général, Division Opérations, 1994, Part I, Title II, p. 33.
Burkina Faso
Burkina Faso’s Disciplinary Regulations (1994) provides that, under the laws and customs of war, it is prohibited “to use improperly the flag of parlementaires”.
Burkina Faso, Règlement de Discipline Générale dans les Forces Armées, Décret No. 94-159/IPRES/DEF, Ministère de la Défense, 1994, Article 35(2).
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “[i]t is prohibited to improperly use … the white flag”.
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 94; see also Part I bis, pp. 38 and 22.
Cameroon
Cameroon’s Disciplinary Regulations (1975) provides that, under the laws and customs of war, it is prohibited “to use improperly the flag of parlementaires”.
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 32.
Cameroon
Cameroon’s Instructor’s Manual (1992) states that the improper use of distinctive signs and signals is an unlawful deception.
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 30, § 131.2 and p. 89, § 222.
Cameroon
Cameroon’s Instructor’s Manual (2006) lists “improperly using distinctive signs and signals” as one of several “prohibited deceptions”.
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 103, § 371; see also p. 147, § 431 and p. 222. § 222.
Canada
Canada’s LOAC Manual (1999) provides: “It is prohibited … to deliberately misuse … internationally recognized protective emblems, signs or signals including the flag of truce.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 11(b).
It further states that “improperly using a flag of truce” constitutes a war crime. Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-3, § 20(f).
Canada
Canada’s LOAC Manual (2001) states in its chapter on land warfare that it is prohibited to “deliberately misuse … internationally recognized protective emblems, signs or signals including the flag of truce”.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 605.1.b.
In its chapter entitled “Communications and contact between opposing forces”, the manual states:
Although reinforcements may be brought up while the parlementaire is conducting negotiations, it is an abuse of the white flag to make use of it solely for the purpose of moving troops without interference by the adverse party.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1402.6.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual further states that “improperly using a flag of truce” constitutes a war crime.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1609.2.f.
Central African Republic
The Central African Republic’s Disciplinary Regulations (2009) states: “During combat, it is also prohibited for servicemen to … make improper use of the flag of parlementaires”.
Central African Republic, Décret 09.411 portant règlement de discipline générale dans les Armées, Ministre de la Défense Nationale, des Anciens Combattants, des Victimes de Guerre, du Désarmement et de la Restructuration de l’Armée, 10 December 2009, Article 12(11).
Congo
The Congo’s Disciplinary Regulations (1986) provides that, under the laws and customs of war, it is prohibited “to use [improperly] the flag of parlementaires”.
Congo, Décret No. 86/057 du 14 janvier 1986 portant Règlement du Service dans l’Armée Populaire Nationale, 1986, Article 32(2).
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders):
It is prohibited:
…
b. to misuse deliberately other internationally recognized protective emblems, signs or signals, including the flag of truce.
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 49.
Djibouti
Djibouti’s Disciplinary Regulations (1982) states: “It is prohibited for combatants to … make improper use of the flag of truce”.
Djibouti, Décret no. 82-028/PR/DEF du 5 mai 1982 portant règlement de la discipline générale dans les Forces armées, Article 30(3).
Ecuador
Ecuador’s Naval Manual (1989) states: “Use of the white flag to gain a military advantage over the enemy is unlawful.”
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 12.2.
The manual also states: “Protective signs and symbols may be used only to identify personnel, objects, and activities entitled to protected status which they designate. Any other use is forbidden by international law.”
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 11.10.5.
In addition, the manual states: “The following acts constitute war crimes: … misuse [and] abuse … of flags of truce.”
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 6.2.5(11).
France
France’s Disciplinary Regulations (1975), as amended, provides that, under international conventions, it is prohibited “to use improperly the flag of parlementaires”.
France, Règlement de Discipline Générale dans les Armées, Decree No. 75-675 of 28 July 1975, replacing Decree No. 66-749, completed by Decree of 11 October 1978, implemented by Instruction No. 52000/DEF/C/5 of 10 December 1979, and modified by Decree of 12 July 1982, Ministère de la Défense, Etat-Major de l’Armée de Terre, Bureau Emploi, Article 9 bis (2).
France
France’s LOAC Manual (2001) states: “It is prohibited … to use improperly … the white flag.”
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 47.
Germany
Germany’s Military Manual (1992) provides: “It is prohibited to make improper use of a flag of truce.”
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 473.
Italy
Italy’s IHL Manual (1991) states that it is prohibited “to use improperly … the flag of parlementaires”.
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 9(2).
The manual further states that grave breaches of international conventions and protocols, including “the improper … use of international protective signs”, constitute war crimes.
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 85.
Lebanon
Lebanon’s Army Regulations (1971) prohibits combatants from unlawfully using the white flag.
Lebanon, Règlement Général de l’Armée, No. 1/400, Ministère de la Défense, Commandement de l’Armée, 14 January 1971, § 17.
Madagascar
Madagascar’s Military Manual (1994) states that the abuse of the white flag is prohibited.
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 6-O, § 14.
Mali
Mali’s Army Regulations (1979) stipulates that, under the laws and customs of war, it is prohibited “to use improperly the flag of parlementaires”.
Mali, Règlement du Service dans l’Armée, 1ère Partie: Discipline Générale, Ministère de la Défense Nationale, 1979, Article 36.
Morocco
Morocco’s Disciplinary Regulations (1974) provides that, under the laws and customs of war, it is prohibited “to use improperly the flag of parlementaires”.
Morocco, Règlement de Discipline Général dans les Forces Armées Royales, Dahir No. 1-74-383 du 15 rejeb 1394, 5 August 1974, Article 25(2).
Netherlands
The Military Manual (1993) of the Netherlands states: “It is prohibited to misuse the flag of parlementaires.”
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IV-3.
The manual further states that “the misuse of … recognized protective signs” is a grave breach of the 1977 Additional Protocol I.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IX-5.
Netherlands
The Military Handbook (1995) of the Netherlands states that it is prohibited “to misuse the white flag”.
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-40.
Netherlands
The Military Manual (2005) of the Netherlands states:
It is also forbidden to misuse the white flag of truce. The white flag indicates that the party flying the flag wishes to parley. This party must cease firing. The bearer of the white flag, and those accompanying this person, have a right to physical inviolability. The receiving party need not cease fire over the whole sector. The white flag is also accepted as the customary indication of a wish to surrender.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0418.
In its chapter on non-international armed conflict, the manual states: “Misuse of the white flag is prohibited.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1042.
New Zealand
New Zealand’s Military Manual (1992) states: “Improper use of protective symbols … is prohibited.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 502.7.
The manual includes the white flag among the “protective symbols”.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, Annex B, § B42.
The manual further states that “improperly using a flag of truce” is a war crime.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1704.2.f.
Nigeria
Nigeria’s Military Manual (1994) notes that it is prohibited “to make improper use of flag of truce”.
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 40, § 5(l)(v).
Nigeria
Nigeria’s Manual on the Laws of War provides that “improper use of the flag of truce” is an “illegitimate tactic”.
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 14.
The manual also states that the “abuse of … a white flag” is a war crime.
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 6.
Nigeria
Nigeria’s Soldiers’ Code of Conduct states that it is prohibited “to make improper use of flag of truce”.
Nigeria, Code of Conduct for Combatants, “The Soldier’s Rules”, Nigerian Army, undated, § 12(f).
Peru
Peru’s IHL Manual (2004) states: “It is prohibited to make improper use of the … white flag (flag of truce).”
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 27.e.(8).(e).
Peru
Peru’s IHL and Human Rights Manual (2010) states: “It is prohibited to make improper use of the … white flag (flag of truce).”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 28(e)(8)(e), p. 238–239.
Republic of Korea
Under the Republic of Korea’s Military Regulation 187 (1991), illegal use of the white flag is a war crime.
Republic of Korea, Military Regulation 187, 1 January 1991, Article 4.2.
Russian Federation
Under the Russian Federation’s Military Manual (1990), the improper use of international signals and flags is a prohibited method of warfare.
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 5(c).
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states: “The prohibited methods of warfare include … making improper use of the … white flag of truce.”
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 7.
Senegal
Senegal’s Disciplinary Regulations (1990) provides that, under the laws and customs of war, it is prohibited “to use improperly the flag of parlementaires”.
Senegal, Règlement de Discipline dans les Forces Armées, Décret 90-1159, 12 October 1990, Article 34(2).
South Africa
South Africa’s LOAC Manual (1996) defines the “abuse of … a flag of truce” as a grave breach of the law of war and a war crime.
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, §§ 39(e) and 41. This manual is also included in Chapter 4 of the Draft Civic Education Manual of 1997.
South Africa
South Africa’s Revised Civic Education Manual (2004) provides that “[a]buse of … a flag of truce” is regarded as a grave breach of the law of armed conflict and a war crime.
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, §§ 61(e) and 57.
Spain
Spain’s LOAC Manual (1996) provides that the improper use – to identify persons and objects not protected – of the white flag is a prohibited deception.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 5.3.c; see also § 10.8.e.(1).
The manual also states that the white flag may not be used for other than its intended purpose.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 3.3.b.(2).
Spain
Spain’s LOAC Manual (2007) states:
It is prohibited to make improper use of the following distinctive signs and signals for any purpose other than the intended one:
…
(e) the white flag (flag of truce).
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 3.3.b.(2).(e); see also § 5.3.c.
Sweden
Sweden’s IHL Manual (1991) considers that the prohibition of improper use of recognized emblems, as contained in Article 38 of the 1977 Additional Protocol I, is part of customary international law.
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3, p. 19.
The manual adds:
In land combat it is not unusual for one of the parties to attempt to win a tactical advantage by concealing the character of his own forces prior to attack, in order to mislead or surprise the adversary … A flag of truce may not, however, be used for such purposes.
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System
, Swedish Ministry of Defence, January 1991, Section 3.2.1.1.b, p. 30.
Switzerland
Switzerland’s Aide-Memoire on the Ten Basic Rules of the Law of Armed Conflict (2005) states:
Rule 8
I remain fair:
- I shall use the distinctive emblems, white flag and uniform in accordance with the rules (cf. Rule 10). These also protect my comrades and me;
…
Rule 10
I am familiar with the international protective signs and their meaning.
Switzerland, The Ten Basic Rules of the Law of Armed Conflict, Aide-memoire 51.007/IIIe, Swiss Army, issued based on Article 10 of the Ordinance for Organization of the Federal Department for Defence, Civil Protection and Sports dated 7 March 2003, entry into force on 1 July 2005, Rules 8 and 10.
The Aide-Memoire also states with regard to the white flag: “Prohibited is/are … Improper use of the White Flag in order to achieve a military advantage.”
Switzerland, The Ten Basic Rules of the Law of Armed Conflict, Aide-memoire 51.007/IIIe, Swiss Army, issued based on Article 10 of the Ordinance for Organization of the Federal Department for Defence, Civil Protection and Sports dated 7 March 2003, entry into force on 1 July 2005, Chart of Protective Signs.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
15.2 Prohibited methods of warfare
223 Misuse of a distinctive sign and the feigning of protected status are prohibited in any place and at any time. Examples: … using the white flag to feign surrender and then opening fire on the approaching enemy …
…
17 Sanctions for violations of the international law of armed conflict
…
237 The following in particular are criminal offences: improper use of international distinctive signs[.]
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 223 and 237.
Ukraine
Ukraine’s IHL Manual (2004) states: “The following methods of warfare shall be prohibited: … misuse of … the white flag of truce”.
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.3.2.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides: “Improper use of a flag of truce or of signals of surrender is forbidden. The flag must not be used merely to gain time to effect a retreat or bring up reinforcements.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 318.
In connection with the requirements for granting the status of combatant, the manual notes in particular that irregular troops should be warned against improper conduct with flags of truce.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 95.
The manual further states: “In addition to the ‘grave breaches’ of the 1949 [Geneva] Conventions, … the following are examples of punishable violations of the laws of war, or war crimes: … abuse of … a flag of truce”.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 626(d).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) provides: “It is forbidden … to make improper use in combat of a flag of truce.”
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 4, p. 12, § 2d.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “It is prohibited to … misuse deliberately in an armed conflict other internationally recognized protective emblems, signs or signals, including the flag of truce.”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.10.
In its chapter on negotiations between belligerents, the manual states:
It is forbidden to make improper use of a flag of truce. Thus, a feigned intention to negotiate or surrender with the intention of using the white flag as cover for the collection of information might amount to the war crime of perfidy whatever the consequences. It would amount to a grave breach of Additional Protocol I if it resulted in death or serious injury. A parlementaire who abuses his position in this way can be taken as a prisoner of war and tried.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 10.10.1.
With regard to internal armed conflict, the manual provides: “It is prohibited to make improper use of the flag of truce.”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.13.
In its chapter on enforcement of the law of armed conflict, the manual states:
The Hague Regulations 1907 are now recognized as part of customary law. Those regulations provide that the following acts are “especially forbidden”:
…
f. to make improper use of a flag of truce.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.27.
United States of America
The US Field Manual (1956) states: “It is especially forbidden to make improper use of a flag of truce.”
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 52.
The manual also provides: “Flags of truce must not be used surreptitiously to obtain military information or merely to obtain time to effect a retreat or secure reinforcements or to feign a surrender in order to surprise an enemy.”
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 53.
The manual specifies:
It is an abuse of the flag of truce, forbidden as an improper ruse under Article 23 (f) [of the 1907 Hague Regulations], for an enemy not to halt and cease firing while the parlementaire sent by him is advancing and being received by the other party; likewise, if the flag of truce is made use of for the purpose of inducing the enemy to believe that a parlementaire is going to be sent when no such intention exists.
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 467.
The manual further states: “In addition to the ‘grave breaches’ of the Geneva Conventions of 1949, the following acts are representative of violations of the law of war (‘war crimes’): … abuse of … the flag of truce.”
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 504(e).
United States of America
The US Air Force Pamphlet (1976) provides: “It is … forbidden to make improper use of the flag of truce.”
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, §§ 8–2(a) and 8-3(c).
The Pamphlet further states: “In addition to the grave breaches of the Geneva Conventions of 1949, the following acts are representative of situations involving individual criminal responsibility: … deliberate … abuse of the flag of truce.”
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c)(3).
United States of America
The US Instructor’s Guide (1985) states: “In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … abusing … the flag of truce.”
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 13.
United States of America
The US Naval Handbook (1995) states: “Use of the white flag to gain a military advantage over the enemy is unlawful.”
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 12.2.
The Handbook specifies: “Protective signs and symbols may be used only to identify personnel, objects, and activities entitled to protected status which they designate. Any other use is forbidden by international law.”
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 11.9.6.
The Handbook also states: “The following acts are representative war crimes: … misuse [and] abuse … [of] flags of truce”.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5(11).
United States of America
The US Naval Handbook (2007) states that “use of the white flag to gain a military advantage over the enemy is unlawful”.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 12.2.
The Handbook also states: “Protective signs and symbols may be used only to identify personnel, objects, and activities entitled to the protected status that they designate. Any other use is forbidden by international law.”
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.5.1.6.
The Handbook further states that “misuse [and] abuse … [of] flags of truce” are examples of acts that could be considered war crimes.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) provides: “It is forbidden to use, during combat, in order to mislead the enemy … the flag of parlementaires and the white flag in general.”
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 105(1).
Algeria
Algeria’s Code of Military Justice (1971) punishes:
any individual, whether military or not, who, in time of war, in an area of operations … in violation of the laws and customs of war, improperly uses the distinctive signs and emblems defined by international conventions for the respect of persons, objects and places protected by these conventions.
Algeria, Code of Military Justice, 1971, Article 299.
Australia
Australia’s War Crimes Act (1945) considers “any war crime within the meaning of the instrument of appointment of the Board of Inquiry [set up to investigate war crimes committed by enemy subjects]” as a war crime, including misuse of flags of truce.
Australia, War Crimes Act, 1945, Section 3.
Australia
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides:
A person shall not, without the consent in writing of the Minister or of a person authorized in writing by the Minister to give consents … use for any purpose whatsoever any of the following:
…
such … emblems, identity cards, signs, signals, insignia or uniforms as are prescribed for the purpose of giving effect to [the 1977 Additional Protocol I].
Australia, Geneva Conventions Act, 1957, as amended in 2002, Section 15(1)(f).
The relevant provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act 1995.
Australia
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 international armed conflicts.
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.41.
Azerbaijan
Azerbaijan’s Criminal Code (1999) provides that “the misuse of the white flag … which as a result caused death or serious injury to body of a victim” constitutes a war crime in international and non-international armed conflicts.
Azerbaijan, Criminal Code, 1999, Article 119(2).
Belarus
Belarus’s Criminal Code (1999) provides that it is a war crime to “use intentionally, during hostilities, in violation of international treaties, … signs protected by international law”.
Belarus, Criminal Code, 1999, Article 138.
Belgium
Belgium’s Penal Code (1867), as amended in 2003, provides:
War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :
…
30. improper use of the white flag of truce … , when it results in loss of life or serious injury
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 quater, § 1(30).
Belgium
Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :
…
16 bis improper use of the white flag of truce … , when it results in loss of life or serious injury.
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law
, 1993, as amended on 23 April 2003, Article 1 ter, § 1(16 bis).
Bosnia and Herzegovina
Under the Federation of Bosnia and Herzegovina’s Criminal Code (1998), “whoever misuses or carries without authorization … any … international symbols recognized as the protection of certain objects from military operations” commits a war crime.
Bosnia and Herzegovina, Federation, Criminal Code, 1998, Article 166(1).
The Republika Srpska’s Criminal Code (2000) contains the same provision.
Bosnia and Herzegovina, Republika Srpska, Criminal Code, 2000, Article 445(1).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) states:
(1) Whoever misuses or carries without authorization … any … international symbols recognized as the protection of certain objects from military operations,
shall be punished by a fine or imprisonment for a term not exceeding three years.
(2) Whoever perpetrates the criminal offence referred to in paragraph 1 of this Article during a state of war or imminent war …
shall be punished by imprisonment for a term of between six months and five years.
Bosnia and Herzegovina, Criminal Code, 2003, Article 184.
Burkina Faso
Burkina Faso’s Code of Military Justice (1994) punishes the improper use, in violation of the laws and customs of war, of the distinctive insignia and emblems for the protection of persons, objects and locations as defined in international conventions, in time of war and in an area of military operations.
Burkina Faso, Code of Military Justice, 1994, Article 205.
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
[The following are] considered as war crimes:
…
B. Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts:
…
g) making improper use of a flag of truce … , resulting in death or serious personal injury.
Burundi, Law on Genocide, Crimes against Humanity and War Crimes, 2003, Article 4(B)(g).
Burundi
Burundi’s Penal Code (2009) states:
“War crimes” means crimes which are committed as part of a plan or policy or as part of a large-scale commission of such crimes, in particular:
…
2. … [S]erious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
…
7°. Making improper use of a flag of truce … , resulting in death or serious personal injury.
Burundi, Penal Code, 2009, Article 198(2)(7°).
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act.
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
China
China’s Law Governing the Trial of War Criminals (1946) provides that “indiscriminate use of the Armistice Flags” constitutes a war crime.
China, Law Governing the Trial of War Criminals, 1946, Article 3(31).
Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) defines war crimes with reference to the categories of crimes defined in Article 8 of the 1998 ICC Statute.
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 4.
Côte d’Ivoire
Côte d’Ivoire’s Penal Code (1981), as amended in 1998, punishes “anyone who, in an area of military operations, uses, in violation of the laws and customs of war, the distinctive insignia and emblems, defined by international conventions, to ensure respect for protected persons, objects and places”.
Côte d’Ivoire, Penal Code, 1981, as amended in 1998, Article 473.
Croatia
Under Croatia’s Criminal Code (1997), “whoever misuses or carries without authorization … recognized international signs used to mark objects for the purpose of protection against military operations” commits a war crime.
Croatia, Criminal Code, 1997, Article 168(1).
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Code of Military Justice (1972), as amended in 1980, punishes “any individual, whether military or not, who, in time of war … improperly uses the distinctive signs and emblems defined by international conventions to ensure respect for the persons, objects and places protected under these conventions”.
Democratic Republic of the Congo, Code of Military Justice, 1972, as amended in 1980, Article 455.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Denmark, Military Criminal Code, 2005, § 36(2).
Estonia
Under Estonia’s Penal Code (2001), “exploitative abuse … of the flag of truce” is a war crime.
Estonia, Penal Code, 2001, § 105.
Fiji
Fiji’s Geneva Conventions Promulgation (2007), as amended in 2009, states:
Part IV—Misuse of the Red Cross and Other Emblems, Signs, Signals, Identity Cards, Insignia and Uniforms
Use of red cross, red crescent and other emblems, etc.
12.—(1) Subject to the provisions of this section, it shall not be lawful for any person, without the consent in writing of the Minister of Home Affairs or a person authorized in writing by the Minister to give consent under this section, to use or display for any purpose whatsoever any of the following:
…
(j) such other flags … as are prescribed for the purpose of giving effect to the Conventions or Protocols.
Fiji, Geneva Conventions Promulgation, 2007, as amended in 2009, § 12(1)(j).
Finland
Finland’s Criminal Code (1889), as amended in 2008, provides that any person who “misuses a white flag” shall be “sentenced for a war crime to imprisonment for at least one year or for life”.
Finland, Criminal Code, 1889, as amended in 2008, Chapter 11, Section 5(1)(11).
(emphasis in original)France
France’s Code of Military Justice (1982) punishes:
any individual, military or not, who, in time of war, in the area of operations of a force or unit, in violation of the laws and customs of war, uses improperly the distinctive signs and emblems defined by international conventions to ensure the respect for persons, objects and places protected by those conventions.
France, Code of Military Justice, 1982, Article 439.
France
France’s Code of Military Justice (2006) states:
The offence by any person, military or not, who in times of war, in the area of operations of a force or unit, in violation of the laws and customs of war, improperly uses the distinctive signs and emblems defined by the international conventions to ensure the respect for persons, objects and places protected by these conventions, is punished with five years’ imprisonment.
France, Code of Military Justice, 2006, Article L. 322-16.
France
France’s Code of Defence (2004), as amended in 2008, states: “[Combatants] are … prohibited to improperly use the flag of parlementaire”.
France, Code of Defence, 2004, as amended in 2008, Article D4122-9.
Georgia
Under Georgia’s Criminal Code (1999), any war crime provided for by the 1998 ICC Statute, which is not explicitly mentioned in the Code, such as “making improper use of a flag of truce, … resulting in death or serious personal injury” in international armed conflicts, is a crime.
Georgia, Criminal Code, 1999, Article 413(d).
Germany
Germany’s Law Introducing the International Crimes Code (2002) punishes anyone who, in connection with an international or a non-international armed conflict, “makes improper use … of the flag of truce … thereby causing a person’s death or serious injury”.
Germany, Law Introducing the International Crimes Code, 2002, Article 1, § 10(2).
Guinea
Guinea’s Criminal Code (1998) punishes “anyone [who], in an area of military operations and in violation of the laws and customs of war, uses distinctive insignia and emblems defined in international conventions to ensure respect for protected persons, objects and places”.
Guinea, Criminal Code, 1998, Article 579.
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) identifies the following as a serious violation of the laws and customs of war applicable in international armed conflicts: “Making improper use of a flag of truce … resulting in death or serious personal injury”.
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 13(2)(H).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 38(1), is a punishable offence.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Italy
Italy’s Law of War Decree (1938), as amended in 1992, provides that it is prohibited “to use improperly the flag of parlementaires”.
Italy, Law of War Decree, 1938, as amended in 1992, Article 36(1).
Italy
Italy’s Wartime Military Penal Code (1941) punishes anyone who “uses improperly … the flag of parlementaires”.
Italy, Wartime Military Penal Code, 1941, Article 180(4).
Mali
Mali’s Code of Military Justice (1995) punishes:
any individual … who, in time of war, in the area of operations of a military force and in violation of the laws and customs of war, improperly uses the distinctive signs and emblems defined in international conventions to ensure respect for persons, objects and places protected by these conventions.
Mali, Code of Military Justice, 1995, Article 145.
Mali
Under Mali’s Penal Code (2001), “using the flag of parlementaires … and, thereby, causing loss of human lives or serious injuries” is a war crime in international armed conflicts.
Mali, Penal Code (2001), Article 31(i)(7).
Netherlands
The Definition of War Crimes Decree (1946) of the Netherlands includes “misuse of flags of truce” in its list of war crimes.
Netherlands, Definition of War Crimes Decree, 1946, Article 1.
Netherlands
Under the International Crimes Act (2003) of the Netherlands, “making improper use of a flag of truce, … resulting in death or serious personal injury”, is a crime, when committed in an international armed conflict.
Netherlands, International Crimes Act, 2003, Article 5(3)(f).
New Zealand
Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crimes defined in Article 8(2)(b)(vii) of the 1998 ICC Statute.
New Zealand, International Crimes and ICC Act, 2000, Section 11(2).
Nicaragua
Nicaragua’s Military Penal Code (1996) punishes any soldier who, in time of war and in an area of military operations, “unlawfully displays the flag of parlementaires”.
Nicaragua, Military Penal Code, 1996, Article 50(1).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment.
Norway, Military Penal Code, 1902, as amended in 1981, 1902, § 108(b).
Norway
Norway’s Penal Code (1902), as amended in 2008, states: “Any person is liable to punishment for a war crime who in connection with an armed conflict … makes improper use of a flag of truce … resulting in death or serious injury.”
Norway, Penal Code, 1902, as amended in 2008, § 105(c).
Peru
Peru’s Code of Military and Police Justice (2006) states:
Any member of the military or police who in the context of an international or non-international armed conflict kills or seriously injures a person by making improper use of … the flag of truce … shall be imprisoned for a period of no less than ten and no more than 20 years.
If the person intentionally causes the death of another person the penalty shall be no less than 20 and no more than 30 years imprisonment.
Peru, Code of Military and Police Justice, 2006, Article 100.
This article is no longer in force. Along with certain other articles in this legislation, it was declared unconstitutional by the Constitutional Court (en banc decision for case file No. 0012-2006-PI-TC, 8 January 2007) because it does not stipulate a crime committed in the line of duty that would fall under the jurisdiction of a military court pursuant to Article 173 of Peru’s Constitution.
Poland
Poland’s Penal Code (1997) punishes “any person who, during hostilities, uses … any … sign protected by international law”, in violation thereof.
Poland, Penal Code, 1997, Article 126(2).
Republic of Korea
The Republic of Korea’s ICC Act (2007) provides for the punishment of anyone who commits the war crime of “[making] improper use … of the flag of truce …, resulting in a person’s death or serious personal injury” in both international and non-international armed conflicts.
Republic of Korea, ICC Act, 2007, Article 12(2).
Senegal
Senegal’s Penal Code (1965), as amended in 2007, states that the following constitute war crimes:
b) [O]ther serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
…
6. making improper use of a flag of truce … , resulting in death or serious personal injury.
Senegal, Penal Code, 1965, as amended in 2007, Article 431-3(b)(6).
Slovenia
Under Slovenia’s Penal Code (1994), “whoever abuses or carries without authorization … internationally recognized symbols used for the protection … against military operations” commits a war crime.
Slovenia, Penal Code, 1994, Article 386(1).
Somalia
Somalia’s Military Criminal Code (1963) states: “A penalty of military confinement for up to seven years shall be applied to anyone who improperly uses … the flag of truce.”
Somalia, Military Criminal Code, 1963, Article 364.
South Africa
South Africa’s ICC Act (2002) reproduces the war crimes listed in the 1998 ICC Statute, including in international armed conflicts: “making improper use of a flag of truce … resulting in death or serious personal injury”.
South Africa, ICC Act, 2002, Schedule 1, Part 3, § (b)(vii).
Spain
Spain’s Military Criminal Code (1985) punishes any soldier who “displays improperly the flag of parlementaires”.
Spain, Military Criminal Code, 1985, Article 75(1).
Spain
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict, … uses improperly … the flag of parlementaires or of surrender”.
Spain, Penal Code, 1995, Article 612(6).
Spain
Spain’s Penal Code (1995), as amended in 2010, states:
Anyone who [commits any of the following acts] during armed conflict shall be punished with three to seven years’ imprisonment:
…
4. Improperly using the protective or distinctive signs, emblems or signals established and recognized under international treaties to which Spain is a party.
Spain, Penal Code, 1995, as amended on 23 June 2010, Article 612(4).
Sudan
Sudan’s Armed Forces Act (2007) provides:
Subject to the provisions of the Criminal Act of 1991, shall be punished with imprisonment for a term not exceeding five years, whoever intentionally misuses the flag of truce … the result of such acts being death, or considerable casualty among enemy personnel.
Sudan, Armed Forces Act, 2007, Article 155.
Sweden
Under Sweden’s Penal Code (1962), as amended in 1998, “misuse of … the flag of parlementaires” constitutes a crime against international law.
Sweden, Penal Code, 1962, as amended in 1998, Chapter 22, § 6(2).
Switzerland
Switzerland’s Military Criminal Code (1927), as amended in 2007, states:
In times of war, the following persons are subject to military criminal law in addition to the persons mentioned in Articles 3 and 4 [of the present code]:
…
3. enemy parlementaires and persons who accompany them if they abuse their situation to commit crimes.
Switzerland, Military Criminal Code, 1937, as amended in 2007, Article 5(3).
Switzerland
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”:
Art. 110
Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
…
Art. 112c
1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:
…
g. makes improper use of a flag of truce[.]
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 110 and 112c (1)(g).
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states under the title “War crimes”:
Art. 264b
Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
…
Art. 264g
1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:
…
g. makes improper use of a flag of truce[.]
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 264b and 264g (1)(g).
United Kingdom of Great Britain and Northern Ireland
Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(b)(vii) of the 1998 ICC Statute.
United Kingdom, ICC Act, 2001, Sections 50(1) and 51(1) (England and Wales) and Section 58(1) (Northern Ireland).
United States of America
Under the US War Crimes Act (1996), violations of Article 23(f) of the 1907 Hague Regulations are war crimes.
United States, War Crimes Act, 1996, Section 2441(c)(2).
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.
26.3. The following are war crimes:
…
15. Making improper use of a flag of truce … resulting in death or serious personal injury.
Uruguay, Law on Cooperation with the ICC, 2006, Article 26.2 and 26.3.15.
Yugoslavia, Socialist Federal Republic of
Under the Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, the use of a prohibited method of combat is a war crime.
Yugoslavia, Socialist Federal Republic of, Penal Code, 1976, as amended in 2001, Article 148(1).
The commentary specifies that: “The following methods of combat are banned under international law: … abuse of the flag of parlementaires, … the white flag”.
Yugoslavia, Socialist Federal Republic of, Penal Code, 1976, as amended in 2001, commentary on Article 148(1); see also Article 153(1).
Canada
In 2013, in the Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.”
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
…
The accused’s position is stated to be that this Court has no jurisdiction to try him.
…
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
…
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
…
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
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… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
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To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
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Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
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In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
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To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
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According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
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I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
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Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states:
Emblems (distinctive sign)
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Other emblems with a protective function include the white flag for Combatants who wish to parley or surrender, and a blue triangle on an orange ground, as the emblem of Civil defence. Improper use of these emblems is prohibited by law.
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, pp. 18–19.
United Kingdom of Great Britain and Northern Ireland
A training video on IHL produced by the UK Ministry of Defence illustrates the rule that the false use of emblems is forbidden.
United Kingdom, Ministry of Defence, Training Video: The Geneva Conventions, 1986, Report on UK Practice, 1997, Chapter 2.4.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support the principle that … internationally recognized protective emblems … not be improperly used.”
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 425.
UN Secretary-General
In 1970, in a report on respect for human rights in armed conflicts, the UN Secretary-General stated:
As was felt by the experts convened by the International Committee of the Red Cross in 1969, the prohibition of the improper use of the white flag … contained in article 23(f) [of the 1907 Hague Regulations], should be strongly reaffirmed.
UN Secretary-General, Report on respect for human rights in armed conflicts, UN Doc. A/8052, 2 March 1970, § 102.
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “It is prohibited to make improper use (that is to mark other persons and objects than those entitled to) of … the white flag (flag of truce)”.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 407(e).
ICRC
In a working paper on war crimes submitted in 1997 to the Preparatory Committee for the Establishment of an International Criminal Court, the ICRC included “improper use of a flag of truce”, when committed in an international armed conflict, in its list of war crimes to be subject to the jurisdiction of the Court.
ICRC, Working paper on war crimes submitted to the Preparatory Committee for the Establishment of an International Criminal Court, New York, 14 February 1997, § 2(x).
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