Practice Relating to Rule 65. Perfidy

Additional Protocol I
Article 37(1)(b) of the 1977 Additional Protocol I lists “the feigning of an incapacitation by wounds or sickness” as an act of perfidy. 
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 37(1)(b). Article 37 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 103.
Additional Protocol II (draft)
Article 21(1) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided that “when carried out in order to commit or resume hostilities, … the feigning of a situation of distress” was considered perfidy. 
CDDH, Official Records, Vol. I, Part Three, Draft Additional Protocols, June 1973, p. 39.
However, this proposal was deleted from draft Article 21 adopted in Committee III of the CDDH. 
CDDH, Official Records, Vol. XV, CDDH/407/Rev.1, 17 March–10 June 1977, p. 502.
San Remo Manual
Paragraph 111(b) of the 1994 San Remo Manual states: “Perfidious acts include the launching of an attack while feigning … distress by, e.g., sending a distress signal or by the crew taking to life rafts.” 
Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, Prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, Cambridge University Press, Cambridge, 1995, § 111(b).
Argentina
Argentina’s Law of War Manual (1989) states that “feigning incapacitation by wounds or sickness” is an example of perfidy. 
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, § 1.05(2)(2).
Australia
Australia’s Commanders’ Guide (1994) states: “Acts which constitute perfidy include feigning of … an incapacitation by wounds or sickness.” 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 826(b) (naval warfare) and § 902(b) (land warfare).
In a section entitled “Perfidy”, the Guide also states: “It is unlawful to falsely claim injury or distress for the purpose of escaping attack or inviting an enemy to lower their guard.” 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 503.
Australia
Australia’s Defence Force Manual (1994) states: “Acts which constitute perfidy include feigning of … an incapacitation by wounds or sickness.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 703(b).
Australia
Australia’s LOAC Manual (2006) states: “Acts which constitute perfidy include feigning of … an incapacitation by wounds or sickness.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.3.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states that “feigning being wounded and wanting to surrender and firing at an adversary willing to help” and “showing signs of distress in order to mislead the enemy” are acts of perfidy. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 32.
Belgium
Belgium’s Teaching Manual for Officers (1994) prohibits perfidy. For example, “feigning being dead to avoid capture is lawful, but not feigning to be wounded to kill an enemy who tries to help you”. 
Belgium, Droit de la Guerre, Manuel d’Instruction pour Officiers, Etat-Major Général, Division Opérations, 1994, Part I, Title II, p. 33.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “Perfidy consists of committing a hostile act under the cover of legal protection (e.g. … feigning being disabled by injuries or sickness …)”. 
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. 32; see also Part I bis, p. 95.
Cameroon
Cameroon’s Instructor’s Manual (1992) provides that “feigning incapacitation by wounds or sickness” is an example of perfidy. 
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. 63, § 234.
Likewise, “feigning being hors de combat” is qualified as an act of perfidy. 
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. 149, § 531.1.
Cameroon
Cameroon’s Instructor’s Manual (2006) lists “feigning being hors de combat” as an “act of perfidy”. 
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. 59, § 251; see also p. 85, § 341 and p. 183, § 494.A.
Canada
Canada’s LOAC Manual (1999) states: “The following are examples of perfidy if a hostile act is committed while: … feigning incapacitation by wounds or sickness.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 9(b) (land warfare), p. 7-2, § 17(b) (air warfare) and p. 8-11, § 81(c) (naval warfare).
Canada
Canada’s LOAC Manual (2001) states in its chapters on land warfare, air warfare and naval warfare: “The following are examples of perfidy if a hostile act is committed while: … feigning incapacitation by wounds or sickness.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 603.2.b (land warfare), 706.2.b (air warfare) and 857.2.c (naval warfare).
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
… The following acts are regarded as perfidy:
- the feigning of being hors de combat. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 16.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
IHL prohibits recourse to perfidy with the aim to kill, injure or capture an enemy.
Regarded as perfidy is any act which appeals to the good faith of the enemy, with the intention to deceive him, and with the aim to make him believe that he is entitled to receive, or has the obligation to give, protection provided by the rules of IHL.
The following acts are examples of perfidy:
- feigning of an incapacitation by wounds or sickness. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 41; see also 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. 48.
Croatia
Croatia’s Commanders’ Manual (1992) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: … feigning … of incapacitation by wounds or sickness.” 
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 46.
Ecuador
Ecuador’s Naval Manual (1989) states:
It is a violation of the law of armed conflict to kill, injure or capture the enemy … by feigning shipwreck, sickness, [or] wounds … A surprise attack by a person feigning shipwreck, sickness, or wounds undermines the protected status of those rendered incapable of combat … Such acts of perfidy are punishable war crimes. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 12.7.
France
France’s LOAC Summary Note (1992) prohibits perfidy and provides: “It is forbidden … to feign … wounds or sickness.” 
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 4.4.
Germany
Under Germany’s Soldiers’ Manual (1991), “the feigning of being incapacitated for combat” constitutes a perfidious act. 
Germany, Taschenkarte, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, Bearbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, Zentrum Innere Führung, June 1991, p. 2.
Germany
Germany’s Soldiers’ Manual (2006) states that perfidious acts are those “by which the adversary is induced to believe that there is a situation affording protection under public international law, so that he may be attacked by surprise, e.g. the feigning of an incapacitation”. 
Germany, Druckschrift Einsatz Nr. 03, Humanitäres Völkerrecht in bewaffneten Konflikten –Grundsätze, Erarbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, p. 2.
Greece
The Hellenic Navy’s International Law Manual (1995) provides that “the feigning of being wounded” constitutes perfidy. 
Greece, International Law Manual, Hellenic Navy General Staff, Directorate A2, Division IV, 1995, Chapter 5, § 4.
Hungary
Under Hungary’s Military Manual (1992), feigning incapacitation by wounds or sickness is an example of perfidy. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 63.
Israel
Referring to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states that the Israel Defense Forces (IDF) prohibit “the resort to perfidy to kill, injure or capture an adversary. Therefore, the IDF does not … feign incapacitation.” 
Report on the Practice of Israel, 1997, Chapter 2.4, referring to Conduct in the Battlefield in Accordance with the Law of War, Israel Defense Forces, 1986, p. 8.
Israel
Israel’s Manual on the Laws of War (1998) gives the following example of perfidy: “Pretending damage to fighting capacity through injury or illness with a view to gaining military advantage.” 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 57.
Israel
Israel’s Manual on the Rules of Warfare (2006) states the following example of “betrayals of trust or treachery”:
Pretending to be injured or ill for the purpose of achieving a military advantage. Here again, the purpose is to prevent a situation in which the soldiers of one side would fear getting medical help for the wounded of the other side. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 35.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s LOAC Elementary Rules Manual (1991) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: … feigning … to be hors de combat because of wounds or sickness.” 
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 46.
Madagascar
Madagascar’s Military Manual (1994) states that feigning incapacitation because of wounds or sickness is prohibited. 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 6-O, § 14.
Netherlands
The Military Manual (1993) of the Netherlands states that the 1977 Additional Protocol I “gives a number of examples of treacherous behaviour [including] feigning to be hors de combat by wounds or sickness”. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IV-2.
Netherlands
The Military Handbook (1995) of the Netherlands provides that it is a prohibited method of warfare “to perform treacherous acts (for example, feigning to have been killed or to be wounded … and then suddenly resume fighting)”. 
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-40.
Netherlands
The Military Manual (2005) of the Netherlands states:
AP I [1977 Additional Protocol I] lists a number of examples of acts of perfidy:
- the feigning of incapacitation by wounds or sickness;
It is forbidden to lead an adversary in battle to believe, by behaviour (moaning and groaning) that you are wounded and wish to surrender and then suddenly to open fire on those offering help. A combatant who feigns death on the battlefield to evade capture and then return to his own lines commits no act of perfidy. He only wants to mislead the enemy. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 0414–0415.
New Zealand
New Zealand’s Military Manual (1992) states that “the feigning of an incapacitation by wounds or sickness” is an example of perfidy. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 502(5) (land warfare) and § 713(2) (naval warfare).
However, the manual notes: “If the motive is survival rather than hostile intent, a soldier can, without committing perfidy, feign incapacity in order to live to fight another day.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 502(5), footnote 3.
Nigeria
Nigeria’s Military Manual (1994) gives the following example of “perjury” (perfidy): “feigning incapacitation by wounds or sickness”. 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, pp. 42 and 43, § 12(c).
Peru
Peru’s IHL Manual (2004) states that “the feigning of an incapacitation by wounds or sickness” is an example of perfidy. 
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.(9).(c).
Peru
Peru’s IHL and Human Rights Manual (2010) states that “the feigning of an incapacitation by wounds or sickness” is an example of perfidy. 
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)(2)(c), p. 239.
Romania
Under Romania’s Soldiers’ Manual (1991), “simulation of incapacity due to wound or sickness” is an act of perfidy. 
Romania, Manualul Soldatului, Ghid de comportare în luptă, Asociaţia Română de Drept Umanitar (ARDU), 1991, p. 35.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
When planning and conducting combat operations it is necessary to draw a clear distinction between perfidy and ruses of war. Perfidy means committing a hostile act under the cover of a right to protection by feigning: … incapacitation by wounds or sickness. 
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, § 8.
South Africa
South Africa’s LOAC Manual (1996) provides: “It is forbidden to feign … injury … Such actions are referred to as ‘perfidy’ and constitute grave breaches of the LOAC.” 
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, § 34(c).
South Africa
South Africa’s Revised Civic Education Manual (2004) states: “It is not permissible to attempt to deceive the enemy by abusing the LOAC or misusing the various protections it affords. For example, it is forbidden to feign … injury.” 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 56(c).
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
- Perfidy
- It is prohibited to conduct operations in a perfidious manner.
- The following acts are examples of perfidy ([1977] Additional Protocol I article 37):
- To pretend being incapacitated by wounds or sickness[.] 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 3, pp. 186–187.
The manual also states:
4.1 LOAC [law of armed conflict] in Naval Warfare
Deception, (Ruses of War) and Perfidy
- Military and auxiliary vessels are at all times prohibited from feigning protective, civilian or neutral status. Such actions will be [p]erfidy. Eg, the launching of an attack … while feigning surrender or distress by e.g. sending a distress signal or by the crew taking to life rafts. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 4, pp. 198 and 207.
Spain
Spain’s LOAC Manual (1996) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: … feigning … incapacitation by wounds or sickness.” 
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, § 10.8.e.(1).
According to the manual, this is considered as an example of a perfidious act. 
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.(1), 5.3.c and 7.3.c.
Spain
Spain’s LOAC Manual (2007) prohibits the act of perfidy and states that “the feigning of an incapacitation by wounds or sickness” is an example of such an act. 
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, § 2.3.b.(3); see also, §§ 3.3.b.(1).(b), 5.3.c and 7.3.c.
Sweden
Under Sweden’s IHL Manual (1991), “the feigning of incapacitation by wounds or sickness” constitutes perfidious conduct. However, “if for example a soldier simulates injury or sickness only to avoid an adversary’s attack, this is not judged as perfidy”. 
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. 29.
Switzerland
Switzerland’s Basic Military Manual (1987) provides that perfidy is forbidden and that: “It is notably prohibited … to feign incapacitation for combat by wounds or sickness”. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 39.
Ukraine
Ukraine’s IHL Manual (2004) states that an example of perfidy is “the feigning of an incapacitation by wounds or sickness”. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.44.
United Kingdom of Great Britain and Northern Ireland
According to the UK Military Manual (1958), “it would be treachery for a soldier to sham wounded or dead and then to attack enemy soldiers who approached him without hostile intent”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 115, footnote 2; see also § 311, footnote 1.
United Kingdom of Great Britain and Northern Ireland
According to the UK LOAC Manual (2004), “the feigning of an incapacitation by wounds or sickness” is an example of prohibited perfidy, “if done with intent to betray the enemy’s confidence”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.9.2.
United States of America
The US Air Force Pamphlet (1976) considers that:
Since situations of distress occur during times of armed conflict, as well as peace, and frequently suggest that the persons involved are hors de combat, feigning distress or death, wounds or sickness in order to resume hostilities constitutes perfidy in ground combat. However, a sick or wounded combatant does not commit perfidy by calling for and receiving medical aid even though he may intend immediately to resume fighting … In aerial warfare, it is forbidden to improperly use internationally recognized distress signals to lure the enemy into a false sense of security and then attack. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 8-6(a); see also § 8-3(a).
United States of America
The US Naval Handbook (1995) states:
It is a violation of the law of armed conflict to kill, injure or capture the enemy … by feigning shipwreck, sickness, [or] wounds … A surprise attack by a person feigning shipwreck, sickness, or wounds undermines the protected status of those rendered incapable of combat … Such acts of perfidy are punishable war crimes. 
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), § 12.7.
United States of America
The US Naval Handbook (2007) states:
It is a violation of the law of armed conflict to kill, injure, or capture the enemy … by feigning shipwreck, sickness, [or] wounds … A surprise attack by a person feigning shipwreck, sickness, or wounds undermines the protected status of those rendered incapable of combat. Such acts of perfidy are punishable 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, § 12.7.
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, states: “One may commit an act of treachery or perfidy by, for example … feigning incapacitation by wounds or sickness”. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(17)(c)(4), p. IV-15.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states that “feigning incapacitation by wounds or sickness” is an act of perfidy. 
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, § 104(2).
Colombia
Colombia’s Penal Code (2000), in an article entitled “Perfidy”, imposes a criminal sanction on “anyone who, during an armed conflict and with intent to harm or attack the adversary, simulates the condition of a protected person”, including the wounded and sick. 
Colombia, Penal Code, 2000, Articles 135 and 143.
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).
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 37(1), is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
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, § 108(b).
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, 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.
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:
Perfidy
International humanitarian law prohibits killing, injuring or capturing an adversary by resorting to perfidy. Acts of perfidy include any form of deception designed to win the confidence of an adversary and lead him to believe that he is entitled or obliged to accord protection under the rules of international humanitarian law, with the intention of betraying that confidence. An example of perfidy is to falsely lay claim to protected status through … feigning incapacitation on the grounds of injuries or sickness. 
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, pp. 29 and 34.
No data.
No data.
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts
Commenting on Article 35 of the draft Additional Protocol I (now Article 37), a Working Group reporting to Committee III of the CDDH stated: “Feigning death in order to kill an enemy once he turned his back would be perfidy.” 
CDDH, Official Records, Vol. XV, CDDH/III/338, 21 April–11 June 1976, p. 426.
No data.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “to pretend being incapacitated by wounds or sickness” constitutes an act of perfidy. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 409(c).
No data.