Practice Relating to Rule 65. Perfidy

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”, which includes civilians. 
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).
Additional Protocol I
Article 37(1)(c) of the 1977 Additional Protocol I lists “the feigning of civilian, non-combatant status” 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)(c). 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, before an attack, of non-combatant status” was considered as 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 110(c) of the 1994 San Remo Manual provides: “Warships and auxiliary vessels … are prohibited … at all times from actively simulating the status of … vessels carrying civilian passengers.” Paragraph 111(a) states: “Perfidious acts include the launching of an attack while feigning … civilian … status.” 
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, §§ 110(c) and 111(a).
Argentina
Argentina’s Law of War Manual (1989) states that “feigning the condition of a civilian non-combatant person” 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)(3).
Australia
Australia’s Commanders’ Guide (1994), in a section entitled “Perfidy”, states: “Combatants wearing civilian clothing in battle … violate LOAC and diminish the enemy’s ability to … distinguish civilians.” 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 507.
The manual adds: “Acts which constitute perfidy include feigning of … civilian, non-combatant status.” 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 826(c) (naval warfare) and § 902(c) (land warfare).
Australia
Australia’s Defence Force Manual (1994) states: “Acts which constitute perfidy include feigning of … civilian or noncombatant status.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 703(c) (land warfare); see also §§ 635(c) and 636(a) (naval warfare).
Australia
Australia’s LOAC Manual (2006) states: “Acts which constitute perfidy include feigning of … civilian or non-combatant status”. 
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) provides that “feigning having civilian or non-combatant status” is a perfidious act. 
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.
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 to be a civilian or non-combatant).” 
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. 95; see also Part I bis, pp. 24 and 115.
Cameroon
Cameroon’s Instructor’s Manual (1992) states that “feigning civilian or non-combatant status” 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. 30, § 131.1, p. 63, § 234 and p. 90, § 222.
Cameroon
Cameroon’s Instructor’s Manual (2006) lists “feigning the status of a civilian or non-combatant” 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. 183, § 494.A; see also p. 222, § 222.
Canada
Canada’s LOAC Manual (1999) provides: “The following are examples of perfidy if a hostile act is committed while: … feigning civilian, non-combatant status.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 9(c) (land warfare), p. 7-2, § 17(c) (air warfare) and p. 8-11, § 81(d) (naval warfare).
It also considers it an act of perfidy in air warfare if a hostile act is committed while “using false markings on military aircraft such as the markings of civil aircraft”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 7-2, § 18(a).
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 civilian, non-combatant status”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 603.2.c (land warfare), 706.2.c (air warfare) and 857.2.d (naval warfare).
In the chapter on air warfare, the manual further states that it is an example of perfidy in air warfare “if a hostile act is committed while … using false markings on military aircraft such as the markings of civil aircraft”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 706.3.a.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):
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 civilian or non-combatant status. 
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, pp. 41–42; 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.
Ecuador
Ecuador’s Naval Manual (1989) states that illegal combatants may be denied prisoner-of-war status, tried and punished. It also states: “It is a violation of the law of armed conflict to kill, injure, or capture the enemy by false indication of … civilian status … Attacking enemy forces while posing as a civilian puts all civilians at hazard. Such acts of perfidy are punishable as 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 and 12.7.1.
France
France’s LOAC Manual (2001) prohibits the simulation of non-combatant status. 
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. 115.
Greece
The Hellenic Navy’s International Law Manual (1995) provides that “the feigning of being civilian” constitutes perfidy. 
Greece, International Law Manual, Hellenic Navy General Staff, Directorate A2, Division IV, 1995, Chapter 5, § 4.
Indonesia
Indonesia’s Military Manual (1982) provides: “It is prohibited to kill or injure the enemy by perfidy, such as to pretend to be a non-combatant.” 
Indonesia, The Basics of International Humanitarian Law, Legal Division of the Indonesian Armed Forces, 1982, § 103.
Israel
Israel’s Manual on the Laws of War (1998) provides several examples of perfidious acts. Notably, it states: “It is forbidden to pose as non-combatant civilians. When the arena of warfare does not yield a clear picture as to who is a civilian and who is a disguised combatant, civilians will be ultimately harmed.” 
Israel, 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 that it is forbidden to “adopt the disguise of a non-combatant civilian. Where no clear picture emerges from the battle front as to who is a civilian and who is a disguised combatant, civilians are liable to get hurt.” 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 36.
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 to belong to a protected category to invite the confidence of the enemy.” 
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 46.
Kenya
Kenya’s LOAC Manual (1997) states that “feigning non-combatant status” is an example of treachery. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 3, p. 7.
Netherlands
The Military Manual (1993) of the Netherlands states that the 1977 Additional Protocol I “gives a number of examples of treacherous behaviour: feigning to possess the status of civilian or noncombatant”. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IV-2.
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 civilian or non-combatant status (e.g., as a carer of the wounded or a member of the Red Cross). 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0414.
New Zealand
New Zealand’s Military Manual (1992) provides: “The following acts are examples of perfidy: … the feigning of civilian, noncombatant status.” 
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).
The manual also states: “The use of civilian aircraft or vessels to transport military cargo would not be perfidious unless it involved an intent to betray the confidence of the enemy, in which case it would be 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, § 502(6).
The manual adds: “The use of false markings on military aircraft such as the markings of civil aircraft … is the prime example of perfidious conduct in air warfare and is prohibited.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 611(2).
Nigeria
Nigeria’s Military Manual (1994) gives the following example of “perjury” (perfidy): “feigning civilian or non-combatant status”. 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, pp. 42 and 43, § 12(d).
Nigeria
Nigeria’s Manual on the Laws of War states that the “use of civilian clothing … by troops engaged in a battle” is a war crime. 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 6.
Peru
Peru’s IHL Manual (2004) states that “the feigning of civilian, non-combatant status” 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).(d).
In the context of armed conflict at sea, the manual states: “Perfidious acts include the launching of an attack while feigning: … civilian … status.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 135.c.(1).
In the context of air warfare, the manual also prohibits the following act as being perfidious: “Using a commercial flight or an overflight agreement to carry out a hostile operation, such as photographic or electronic reconnaissance, the activation of air defence systems or even a direct attack”. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 165.b.(1).
Peru
Peru’s IHL and Human Rights Manual (2010) states that “the feigning of civilian or non-combatant status” 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)(d), p. 239.
In the context of armed conflict at sea, the manual states: “Perfidious acts include the launching of an attack while feigning: … civilian … status.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 126(c)(1), p. 319.
In the context of air warfare, the manual also prohibits the following act as being perfidious: “Using a commercial flight or an overflight agreement to carry out a hostile operation, such as photographic or electronic reconnaissance, the activation of air defence systems or even a direct attack”. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 156(b)(1), p. 339.
Romania
Under Romania’s Soldiers’ Manual (1991), “feigning civilian or non-combatant status” 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: … civilian or non-combatant status. 
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) gives as an example of perfidy the prohibition “to feign civilian non-combatant status”. 
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).
The manual also considers the “use of civilian clothing by troops to conceal their military character during battle” to be 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(f) and 41.
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 civilian non-combatant status.” 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 56(c).
The manual also provides that the “[u]se of civilian clothing by troops to conceal their military character during battle” is 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(f).
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):
- For a combatant to pretend being a civilian or a non-combatant[.] 
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. 
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) provides that simulating the status of a civilian person or non-combatant is 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) and § 5.3.c; see also § 7.3.c.
Spain
Spain’s LOAC Manual (2007) prohibits the act of perfidy and states that “the feigning of civilian, non-combatant status” 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).(c), 5.3.c and 7.3.c.
Sweden
Sweden’s IHL Manual (1991) mentions, as an example of perfidious conduct, “the feigning of protected civilian status”. 
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.
Ukraine
Ukraine’s IHL Manual (2004) states that an example of perfidy is “the feigning of civilian, non-combatant status”. 
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
The UK Military Manual (1958) describes as treacherous the use of false assurances followed by firing, noting that this “device is often accompanied by the use of enemy uniforms or civilian clothing”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 311, footnote 1.
Furthermore, the manual 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: … use of civilian clothing … by troops engaged in battle.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 626(f).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states that the “feigning of non-combatant status” is an example of treachery. 
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, § 2(a).
United Kingdom of Great Britain and Northern Ireland
According to the UK LOAC Manual (2004), “the feigning of civilian, non-combatant status” 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.
In its chapter on air operations, the manual states: “Military and auxiliary aircraft are prohibited at all times from feigning exempt, civilian or neutral status.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 12.54–12.54.1.
In its chapter on maritime warfare, the manual states that launching an attack while feigning civilian status is an example of perfidy. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 13.83.
United States of America
According to the US Field Manual (1976), the use of civilian clothing by troops to conceal their military character during battle is an act for which a combatant would lose his right to be treated as a prisoner of war. 
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, § 74.
The manual also 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’): … use of civilian clothing by troops to conceal their military character during battle.” 
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(g).
United States of America
According to the US Air Force Pamphlet (1976), the use of civilian clothing by troops to conceal their military character during battle is an act for which a combatant would lose his right to be treated as a prisoner of war. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 7-2.
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: … intentional use of civilian clothing to conceal military identity during battle.” 
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)(6).
In respect of air warfare, the Pamphlet states:
Aircrew members do customarily wear uniforms because flight suits fully qualify as uniforms when they are so distinctive in character as to distinguish the wearer from the civilian population … In that connection, the prohibition of perfidy, such as disguising oneself as a civilian in order to engage hostilities, … is applicable. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 7-3(a).
It also provides that, generally speaking, “disguising combatants in civilian clothing in order to commit hostilities constitutes perfidy”. This is also the case of the “feigning by combatants of civilian, noncombatant status”. 
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) and 8-3(a).
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: … using civilian clothing to conceal military identity during battle.” 
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 that illegal combatants may be denied prisoner-of-war status, tried and punished. It also states: “It is a violation of the law of armed conflict to kill, injure, or capture the enemy by false indication of … civilian status … Attacking enemy forces while posing as a civilian puts all civilians at hazard. Such acts of perfidy are punishable as 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. and 12.7.1.
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 false indication of … civilian status … [A]ttacking enemy forces while posing as a civilian puts all civilians at hazard. Such acts of perfidy are punishable as war crimes. It is also prohibited to kill, injure, or capture an adversary by feigning civilian or noncombatant status.  
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 a civilian, non-combatant status”. 
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.
Colombia
In 1995, in a decision concerning the constitutionality of the 1977 Additional Protocol II, Colombia’s Constitutional Court stated: “The feigning of civilian status to injure, kill or capture an adversary constitutes an act of perfidy which is prohibited by the rules of international humanitarian law, as clearly stipulated in Article 37 of [the 1977 Additional Protocol I].” The Court held that, while the 1977 Additional Protocol II does not contain rules on perfidy in situations of non-international armed conflict,
that does not mean that it is authorized, since the treaty must be interpreted in the light of all the humanitarian principles. As stated in the Taormina Declaration, the prohibition of perfidy is one of the general rules governing the conduct of hostilities that applies in non-international armed conflicts. 
Colombia, Constitutional Court, Constitutional Case No. C-225/95, Judgment, 18 May 1995.
Israel
In the Swarka case before an Israeli Military Court in 1974, the defendants had entered Israel from Egypt and launched rockets on a civilian settlement. When brought to trial, they claimed that they were entitled to prisoner of war status under Article 4 of the 1949 Geneva Convention III, since they were soldiers in the Egyptian regular army and had committed the actions on the orders of their commander. The Prosecutor argued that they could not benefit from POW status since they wore civilian clothes when they carried out their operations. The Court observed that neither the 1907 Hague Regulations nor the 1949 Geneva Conventions required that members of regular forces had to wear uniforms at the time of capture to be entitled to their protection. However, it considered that “it would be quite illogical to regard the duty of wearing uniform (in the sense of a distinctive sign) as imposed only on the quasi-military units referred to in Article 4(A)(2) [of the 1949 Geneva Convention III] and not on soldiers of regular military forces”. It concluded that the defendants were to be prosecuted as saboteurs. 
Israel, Military Court, Swarka case, Judgment, 1974.
Malaysia
In 1968, the Judicial Committee of the Privy Council (United Kingdom) heard the appeals of two members of the Indonesian armed forces who had entered a non-military building in Singapore – which at the time formed part of Malaysia – wearing civilian clothes and had planted a bag containing explosives. The ensuing explosion had caused two deaths, and the accused had been convicted of murder and sentenced to death. The Privy Council held that members of armed forces who committed acts of sabotage in territory under the control of opposing forces, when dressed in civilian clothes both at the time of the acts of sabotage and when arrested, were not entitled to be treated on capture as prisoners of war under the 1949 Geneva Conventions but were subject to trial and punishment. 
Malaysia, Judicial Committee of the Privy Council (United Kingdom), Ali case, Judgment, 29 July 1968.
Nigeria
In the Nwaoga case before the Supreme Court of Nigeria in 1972, the appellant and two officers of the rebel Biafran army disguised in civilian clothes went to a town under the control of federal troops and killed an unarmed person. The appellant was convicted for murder. The Court held that rebels must not feign civilian status while engaging in military operations and that, in these circumstances (operation in disguise, not in the rebel army uniform but in plain clothes, thus appearing to be members of the peaceful private population), the appellant was liable to punishment under the Criminal Code since the “deliberate and intentional killing of an unarmed person living peacefully inside the Federal territory … is a crime against humanity, and even if committed during a civil war is in violation of the domestic law of the country, and must be punished”. 
Nigeria, Supreme Court, Nwaoga case, Judgment, 3 March 1972.
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.
United States of America
In 1942, in the Quirin case in which German saboteurs had entered the United States in civilian clothing, the US Supreme Court held:
Each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines, in civilian dress and with hostile purpose. The offense [under the laws of war] was complete when with that purpose they entered – or, having so entered, they remained upon – our territory in time of war without uniform or other appropriate means of identification. 
United States, Supreme Court, Quirin case, Judgment, 31 July 1942, and Extended Opinion, 29 October 1942.
Algeria
At the CDDH, the representative of Algeria stated that the inclusion of “the disguising of combatants in civilian clothing” as an example of perfidy “seemed to be difficult to accept, since it did not take into account certain situations, particularly guerrilla operations. His delegation would therefore be inclined to endorse the Indonesian amendment … proposing the deletion of that paragraph.” 
Algeria, Statement at the CDDH, Official Records, Vol. XIV, CDDH/III/SR.28, 4 March 1975, p. 262, § 13.
However, Algeria finally agreed upon paragraph 1(c) of Article 35 of the draft Additional Protocol I (now Article 37) in supporting the view of Viet Nam stated below. 
CDDH, Official Records, Vol. XV, CDDH/III/SR.47, 31 May 1976, p. 86, § 5.
Algeria
According to the Report on the Practice of Algeria, the policy followed by Algerian combatants during the war of independence was summarized in the maxim “Djellaba le jour, uniforme la nuit” (“Djellaba by day, uniform by night”). 
Report on the Practice of Algeria, 1997, Chapter 2.6, referring to El Moudjahid, Vol. 2, p. 381.
Egypt
At the CDDH, Egypt, commenting on Article 44 of the 1977 Additional Protocol I, stated that the right of the guerrilla fighter to be considered as a lawful combatant “did not release regular combatants from their obligation to wear their uniform during military operations, failing which they would be committing an act of perfidy”. 
Egypt, Statement at the CDDH, Official Records, Vol. XV, CDDH/III/SR.55, 22 April 1977, p. 160, § 28.
Indonesia
At the CDDH, Indonesia proposed deleting paragraph 1(c) of Article 35 of the draft Additional Protocol I (now Article 37). 
Indonesia, Proposal of amendment to Article 35 of draft Additional Protocol I submitted to the CDDH, Official Records, Vol. III, CDDH/III/232, 25 February 1975, p. 164.
This proposal was the expression of the fear that paragraph 1(c) could be misused to punish combatants who would otherwise be entitled to the status of prisoner of war. However, Indonesia finally agreed upon paragraph 1(c) of Article 35 of the draft Additional Protocol I (now Article 37) following the same reasoning as the one of Viet Nam stated below. 
CDDH, Official Records, Vol. XV, CDDH/III/SR.47, 31 May 1976, pp. 85 and 86, § 4.
Israel
At the final plenary meeting of the CDDH, the Israeli delegation declared: “Israel regards [Article 37 of the 1977 Additional Protocol I], and in particular its paragraph 1(c), as an essential and basic provision. It reaffirms the fundamental distinction made in customary law between combatants and non-combatants.” 
Israel, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 115.
Philippines
At the CDDH, the Philippines, having in mind guerrilla warfare, supported the amendments proposed by Indonesia and Viet Nam to delete paragraph 1(c) of Article 35 of the draft Additional Protocol I (now Article 37) because “it would be basically unjust to brand the wearing of civilian clothing by a combatant as perfidy when such circumstances were brought about by the superior military strength of the aggressor”. 
Philippines, Statement at the CDDH, Official Records, Vol. XIV, CDDH/III/SR.28, 4 March 1975, p. 265, §§ 25 and 26.
However, the Philippines finally agreed upon paragraph 1(c) following the same reasoning as the one of Viet Nam stated below. 
CDDH, Official Records, Vol. XV, CDDH/III/SR.47, 31 May 1976, pp. 85 and 86, § 4.
Romania
At the CDDH, Romania supported the amendments of Indonesia and Viet Nam proposing the deletion of paragraph 1(c) of Article 35 of the draft Additional Protocol I (now Article 37), “since the act covered by the provision could not be regarded as a typical case of perfidy”. 
Romania, Statement at the CDDH, Official Records, Vol. XIV, CDDH/III/SR.28, 4 March 1975, p. 270, § 52.
However, Romania finally agreed upon paragraph 1(c) following the same reasoning as the one of Viet Nam stated below. 
CDDH, Official Records, Vol. XV, CDDH/III/SR.47, 31 May 1976, pp. 85 and 86, § 4.
Switzerland
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.3 Increasing use of guerrilla tactics…
International humanitarian law in force treats these cases in a relatively complete manner, binding non-State and State actors alike. Feigning to have protected civilian status or another protected status … in order to kill, injure or capture an adversary constitutes an act of perfidy contrary to international law. 
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.3, p. 12.
[footnotes in original omitted]
United States of America
US practice since the Second World War has refused prisoner-of-war treatment to enemy combatants captured in civilian clothing while not carrying their arms openly. During the Vietnam War, the US policy was to consider that all combatants captured during military operations were to be accorded prisoner-of-war status, while terrorists, spies and saboteurs were not. 
George S. Prugh, Law at War: Vietnam 1964-1973, Department of the Army, Vietnam Studies, Washington D.C., 1975, p. 66.
United States of America
In 1989, in a memorandum of law, the Judge Advocate General of the US Department of the Army stated:
Traditionally, soldiers have an obligation to wear uniforms to distinguish themselves from the civilian population. Law-of-war sources prior to World War II suggested that the prohibition on killing or wounding “treacherously” referred to soldiers disguising themselves as civilians in order to approach an enemy force and carry out a surprise attack. That concept was thrown into disarray during World War II by the reliance on partisans by all parties to that conflict. While frequently characterized as an assassination, the 27 May 1942 ambush of SS General Reinhard Heydrich by British SOE [Special Operations Executive]-trained Czechoslovakian partisans is representative of the practice of each party to the conflict employing organized resistance units to carry out attacks against military units and personnel of an occupying power.
Reliance upon organized partisan forces changed state practice and, accordingly, the law of war. Coordinated British and U.S. revisions of their respective post-World War II law of war manuals reflected this change. For example, the following … italicized … sentence was added to paragraph 31 [of the US Field Manual]:
[Article 23(b) of the 1907 Hague Regulations] is construed as prohibiting assassination … It does not, however, preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere.
The annotations to [the manual] state that the [italicized] sentence was inserted “so as not to foreclose activity by resistance movements, paratroops, and other belligerents who may attack individual persons”. The deliberate decision by many nations to employ surrogate guerrilla forces in lieu of or in connection with conventional military units to fight a succession of guerrilla wars since 1945 has served to raise further doubts regarding the traditional rule.
While state practice suggests that the employment of partisans is lawful, that is, would not constitute assassination, a question remains regarding the donning of civilian clothing by conventional forces personnel for the purpose of killing enemy combatants. However, in the one known case of such practice during World War II, a British officer who successfully entered a German headquarters dressed in civilian attire and killed the commanding general was decorated rather than punished for his efforts. 
United States, Department of the Army, Office of the Judge Advocate General, Memorandum of Law: Executive Order 12333 and Assassination, 2 November 1989, The Army Lawyer, Pamphlet 27-50-204, December 1989, p. 6.
[emphasis in original]
United States of America
According to the Report on US Practice, the opinio juris of the United States is that:
Customary international law does not … prohibit belligerents from using saboteurs, secret agents or other irregular forces feigning civilian status to attack legitimate military targets. Wear of civilian clothing during an attack, or during a spying or sabotage mission behind enemy lines, may subject combatants to punishment if captured by the enemy. 
Report on US Practice, 1997, Chapter 2.4.
Viet Nam
At the CDDH, Viet Nam proposed deleting paragraph 1(c) of Article 35 of the draft Additional Protocol I (now Article 37). 
Viet Nam, Proposal of amendment to Article 35 of draft Additional Protocol I submitted to the CDDH, Official Records, Vol. III, CDDH/III/236, 25 February 1975, p. 165.
Viet Nam stated that ill-armed peoples of Asia, Africa and Latin America, fighting either to defend their independence or to exercise their right of self-determination,
lacked the necessary means to provide uniforms for members of their national forces or their rural and urban militia. To regard that state of affairs as perfidy would be to legislate against nations defending their right to self-determination. Logically speaking, the question was not one of perfidy, since that implied the intention to betray an adversary’s good faith. 
Viet Nam, Statement at the CDDH, Official Records, Vol. XIV, CDDH/III/SR.28, 4 March 1975, p. 260, § 7.
Viet Nam finally agreed upon Article 35 of the draft Additional Protocol I, after the introduction of the saving clause under Article 44(3), whereby the wearing of civilian clothes does not amount to perfidy when combatants fulfil the conditions to be recognized as legitimate combatants (in situations where the combatant cannot distinguish themselves from the civilian population, they retain their combatant status, provided that they carry their arms openly during each military engagement, and during such time as they are visible to the adversary while they are engaged in military deployment preceding the launching of an attack in which they are to participate). 
Viet Nam, Statement at the CDDH, Official Records, Vol. XV, CDDH/III/SR.47, 31 May 1976, p. 86, § 5.
No data.
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International Criminal Tribunal for the former Yugoslavia
In the interlocutory appeal in the Tadić case in 1995, the ICTY, referring to the Nwaoga case, stated:
State practice shows that general principles of customary international law have evolved with regard to internal armed conflict also in areas relating to methods of warfare. In addition to what has been stated above, with regard to the ban on attacks on civilians in the theatre of hostilities, mention can be made of the prohibition of perfidy. Thus, for instance, in a case brought before Nigerian courts, the Supreme Court of Nigeria held that rebels must not feign civilian status while engaging in military operations. 
ICTY, Tadić case, Interlocutory Appeal, 2 October 1995, § 125.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “to pretend being a civilian or non-combatant” is an act of perfidy. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 409(d).
No data.