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.”
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.”
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.”
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.”
This proposal was amended and adopted by consensus in Committee III of the CDDH.
The approved text provided that it was “forbidden to misuse deliberately in armed conflict other internationally recognized protective emblems … including the flag of truce”.

Eventually, however, it was deleted by consensus in the plenary.
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.
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.”
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”.
Brussels Declaration
Article 13(f) of the 1874 Brussels Declaration especially forbids “[m]aking improper use of a flag of truce”.
Oxford Manual
Article 8(d) of the 1880 Oxford Manual provides: “It is forbidden … to make improper use … of the flag of truce.”
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”.
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.
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.
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.
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
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.”
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
Australia’s Defence Force Manual (1994) provides: “Deliberate misuse of … protective symbols and emblems, signs and signals, including the flag of truce … is … prohibited.”
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
Australia’s LOAC Manual (2006) states: “Deliberate misuse of … protective symbols and emblems, signs and signals, including the flag of truce … is … prohibited.”
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.
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.”
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”.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “[i]t is prohibited to improperly use … the white flag”.
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
Cameroon’s Instructor’s Manual (1992) states that the improper use of distinctive signs and signals is an unlawful deception.
Cameroon
Cameroon’s Instructor’s Manual (2006) lists “improperly using distinctive signs and signals” as one of several “prohibited deceptions”.
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.”

It further states that “improperly using a flag of truce” constitutes a war crime.
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”.
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.
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.
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”.
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”.
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.
Djibouti
Djibouti’s Disciplinary Regulations (1982) states: “It is prohibited for combatants to … make improper use of the flag of truce”.
Ecuador
Ecuador’s Naval Manual (1989) states: “Use of the white flag to gain a military advantage over the enemy is unlawful.”
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.”
In addition, the manual states: “The following acts constitute war crimes: … misuse [and] abuse … of flags of truce.”
France
France’s Disciplinary Regulations (1975), as amended, provides that, under international conventions, it is prohibited “to use improperly the flag of parlementaires”.
France
France’s LOAC Manual (2001) states: “It is prohibited … to use improperly … the white flag.”
Germany
Germany’s Military Manual (1992) provides: “It is prohibited to make improper use of a flag of truce.”
Italy
Italy’s IHL Manual (1991) states that it is prohibited “to use improperly … the flag of parlementaires”.
The manual further states that grave breaches of international conventions and protocols, including “the improper … use of international protective signs”, constitute war crimes.
Lebanon
Lebanon’s Army Regulations (1971) prohibits combatants from unlawfully using the white flag.
Madagascar
Madagascar’s Military Manual (1994) states that the abuse of the white flag is prohibited.
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”.
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”.
Netherlands
The Military Manual (1993) of the Netherlands states: “It is prohibited to misuse the flag of parlementaires.”
The manual further states that “the misuse of … recognized protective signs” is a grave breach of the 1977 Additional Protocol I.
Netherlands
The Military Handbook (1995) of the Netherlands states that it is prohibited “to misuse the white flag”.
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.
In its chapter on non-international armed conflict, the manual states: “Misuse of the white flag is prohibited.”
New Zealand
New Zealand’s Military Manual (1992) states: “Improper use of protective symbols … is prohibited.”
The manual includes the white flag among the “protective symbols”.
The manual further states that “improperly using a flag of truce” is a war crime.
Nigeria
Nigeria’s Military Manual (1994) notes that it is prohibited “to make improper use of flag of truce”.
Nigeria
Nigeria’s Manual on the Laws of War provides that “improper use of the flag of truce” is an “illegitimate tactic”.
The manual also states that the “abuse of … a white flag” is a war crime.
Nigeria
Nigeria’s Soldiers’ Code of Conduct states that it is prohibited “to make improper use of flag of truce”.
Peru
Peru’s IHL Manual (2004) states: “It is prohibited to make improper use of the … white flag (flag of truce).”
Peru
Peru’s IHL and Human Rights Manual (2010) states: “It is prohibited to make improper use of the … white flag (flag of truce).”
Republic of Korea
Under the Republic of Korea’s Military Regulation 187 (1991), illegal use of the white flag is a war crime.
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
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.”
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”.
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
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
South Africa’s LOAC Teaching Manual (2008) states:
5.1 War Crimes and Grave Breaches of the LOAC [law of armed conflict]
…
Examples of Punishments that can be Imposed for War Crimes or Grave Breaches
…
- Misuse of protected signs: 10 years imprisonment.
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.
The manual also states that the white flag may not be used for other than its intended purpose.
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).
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.
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.
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.
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
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[.]
Ukraine
Ukraine’s IHL Manual (2004) states: “The following methods of warfare shall be prohibited: … misuse of … the white flag of truce”.
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.”
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.
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 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 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.”
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.
With regard to internal armed conflict, the manual provides: “It is prohibited to make improper use of the flag of truce.”
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 States of America
The US Field Manual (1956) states: “It is especially forbidden to make improper use of a flag of truce.”
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.”
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.
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 of America
The US Air Force Pamphlet (1976) provides: “It is … forbidden to make improper use of the flag of truce.”
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 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 of America
The US Naval Handbook (1995) states: “Use of the white flag to gain a military advantage over the enemy is unlawful.”
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.”
The Handbook also states: “The following acts are representative war crimes: … misuse [and] abuse … [of] flags of truce”.
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”.
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.”
The Handbook further states that “misuse [and] abuse … [of] flags of truce” are examples of acts that could be considered war crimes.
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.”
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.
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
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].
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.
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.
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”.
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
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.
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.
The Republika Srpska’s Criminal Code (2000) contains the same provision.
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.
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.
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
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.
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.
China
China’s Law Governing the Trial of War Criminals (1946) provides that “indiscriminate use of the Armistice Flags” constitutes a war crime.
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.
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
Côte d’Ivoire’s Penal Code (1981), as amended in 2015, states:
Article 139
Whoever commits a war crime is punished with life imprisonment.
War crimes are:
…
2 - other 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:
…
- making improper use of a flag of truce … , resulting in death or serious personal injury[.]
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.
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”.
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’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].
Estonia
Under Estonia’s Penal Code (2001), “exploitative abuse … of the flag of truce” is a war crime.
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.
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”.

(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
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
France’s Code of Defence (2004), as amended in 2008, states: “[Combatants] are … prohibited to improperly use the flag of parlementaire”.
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
Georgia’s Criminal Code (1999), taking into account amendments up to 2017, states:
Intentional breach of the provisions of … international humanitarian law during armed conflicts between states or within a state, in particular:
…
f) improper use of a flag of temporary ceasefire … or other markings recognised under … international humanitarian law, which has resulted in human deaths or serious bodily injuries;
…
shall be punished by imprisonment for a term of ten to fifteen years.
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”.
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”.
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”.
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.
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
Italy’s Wartime Military Penal Code (1941) punishes anyone who “uses improperly … the flag of parlementaires”.
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
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.
Netherlands
The Definition of War Crimes Decree (1946) of the Netherlands includes “misuse of flags of truce” in its list of war crimes.
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.
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.
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”.
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
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.”
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.
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.
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.
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.
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.
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.”
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”.
Spain
Spain’s Military Criminal Code (1985) punishes any soldier who “displays improperly the flag of parlementaires”.
Spain
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict, … uses improperly … the flag of parlementaires or of surrender”.
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.
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.
Sweden
Under Sweden’s Penal Code (1962), as amended in 1998, “misuse of … the flag of parlementaires” constitutes a crime against international law.
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
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
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[.]
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 States of America
Under the US War Crimes Act (1996), violations of Article 23(f) of the 1907 Hague Regulations are war crimes.
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.
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.
The commentary specifies that: “The following methods of combat are banned under international law: … abuse of the flag of parlementaires, … the white flag”.
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.”
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. …
…
… 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.
…
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.
…
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. …
…
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
…
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
…
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.
…
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. …
…
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].
…
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
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.
…
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.

[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.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states:
Emblems (distinctive sign)
…
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.
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 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.”
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.
No data.
No data.
No data.
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)”.
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.
No data.