Practice Relating to Rule 65. Perfidy

Note: For practice concerning the use of flags or military emblems, insignia or uniforms of neutral or other States not party to the conflict which does not amount to perfidy, see Rule 63.
Additional Protocol I
Article 37(1)(d) of the 1977 Additional Protocol I lists “the feigning of protected status by the use of signs, emblems or uniforms … of neutral or other States not Parties to the conflict” 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)(d). Article 37 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 103.
Additional Protocol I
Under Article 85(3)(f) of the 1977 Additional Protocol I, “the perfidious use, in violation of Article 37, … of … protective signs recognized by the Conventions or this Protocol” is a grave breach of the 1977 Additional Protocol I. Article 85(5) adds: “Without prejudice to the application of the [1949 Geneva] Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes”. 
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 85(3)(f) and (5). Article 85 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.44, 30 May 1977, p. 291.
San Remo Manual
Paragraph 111(a) of the 1994 San Remo Manual states: “Perfidious acts include the launching of an attack while feigning … neutral … 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, § 111(a).
Argentina
Argentina’s Law of War Manual (1989) states that “making use of signs, emblems or uniforms … of neutral states or other states which are not parties to the conflict, so as to simulate a protected status” 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)(4).
Australia
Australia’s Commanders’ Guide (1994) states:
Acts which constitute perfidy include feigning of:
(d) protected status by the use of protective symbols, signs, emblems or uniforms … of neutral or other States not involved in the conflict. 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 826(d) (naval warfare) and § 902(d) (land warfare).
In a section entitled “Perfidy”, the manual further states:
It is illegal to use in battle emblems, markings or clothing of a neutral or enemy. Combatants wearing civilian clothing or otherwise pretending to be a member of a neutral nation violate LOAC and diminish the enemy’s ability to identify neutrals and 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.
Australia
Australia’s Defence Force Manual (1994) provides: “Acts which constitute perfidy include feigning of … protected status by the use of protective symbols, signs, emblems or uniforms … of neutral or other states not involved in the conflict.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 703(d).
Australia
Australia’s LOAC Manual (2006) states: “Acts which constitute perfidy include feigning of … protected status by the use of protective symbols, signs, emblems or uniforms of … neutral or other states not involved in the conflict”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.3.
The manual also states that the 1977 Additional Protocol I extends the definition of grave breaches to include “the perfidious use of the distinctive emblem of the Red Cross, Red Crescent, Red Crystal and other Red Cross societies, or of other protective signs recognised by the Conventions or the Protocol”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.26.
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 “opening fire wearing the uniform … of neutral forces” is an act 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.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) lists “feigning to have protected status by utilizing the signs, emblems or uniforms of … neutral States” as an example of “perfidy”. 
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.
Cameroon
Cameroon’s Instructor’s Manual (1992) notes that “feigning to have a protected status by using signs, emblems or uniforms … of neutral States or States not parties to the conflict” 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, pp. 63 and 64, § 234.
Cameroon
Cameroon’s Instructor’s Manual (2006) states that “feigning having protected status by using the signs, emblems or uniforms of … neutral States or other States not parties to the conflict” constitutes 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.
Canada
Canada’s LOAC Manual (1999) provides: “The following are examples of perfidy if a hostile act is committed while: … feigning protected status by the use of signs, emblems or uniforms … of neutral or other states not parties to the conflict.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 9(d) (land warfare), p. 7-2, § 17(d) (air warfare) and p. 8-11, § 81(e) (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 protected status by the use of signs, emblems or uniforms of … neutral or other states not parties to the conflict.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 603.2.d (land warfare), 706.2.d (air warfare) and 857.2.e (naval warfare).
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders):
I.2.1. Perfidy
It is prohibited to kill, injure or capture an adversary by resort to perfidy. …
Here are some examples of perfidy; if an act of hostility is made by feigning:
d. protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 48.
France
France’s LOAC Manual (2001) states that the use of the emblems or uniforms of third States for hostile purposes is criminalized. 
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 misuse of … the uniform and insignia of other states” constitutes perfidy. 
Greece, International Law Manual, Hellenic Navy General Staff, Directorate A2, Division IV, 1995, Chapter 5, § 4.
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 a protected position by using signs, emblems or uniforms … of States which are not parties to the conflict”. 
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 protected status by the use of signs, emblems or uniforms of the United Nations or of States not parties to the conflict. 
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 protected status by the use of signs, emblems or uniforms … of neutral or other States not Parties to the conflict.” 
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).
Nigeria
Nigeria’s Military Manual (1994) gives the following example of “perjury” (perfidy): “feigning protection status by the use of signs, emblems or uniforms … of a neutral [state] or state not being a party to the conflict”. 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, pp. 42 and 43, § 12(e).
Peru
Peru’s IHL Manual (2004) states that “the feigning of protected status by the use of signs, emblems or uniforms of … neutral States” 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).(e).
In the context of armed conflict at sea, the manual states: “Perfidious acts include the launching of an attack while feigning: … neutral … 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).
The manual also prohibits the following acts as being perfidious: “Carrying out hostile operations of any kind, even aerial reconnaissance, under cover of aircraft registration numbers or markings belonging to neutral countries”. 
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.(2).
Peru
Peru’s IHL and Human Rights Manual (2010) states that “the feigning of protected status by the use of signs, emblems or uniforms of … neutral States” 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)(e), p. 239.
In the context of armed conflict at sea, the manual states: “Perfidious acts include the launching of an attack while feigning: … neutral … 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.
The manual also prohibits the following acts as being perfidious: “Carrying out hostile operations of any kind, even aerial reconnaissance, under cover of aircraft registration numbers or markings belonging to neutral countries”. 
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)(2), p. 339.
Romania
Under Romania’s Soldiers’ Manual (1991), “feigning the status of a protected person by abusing the signs and emblems of … neutral States or States which are not party to the conflict” 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: … a protected status by the use of emblems, signs and signals, or uniforms … of neutral or other states not parties to the armed conflict. 
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 Teaching Manual (2008) states:
Deceptions in War
- The LOAC [law of armed conflict] makes a distinction between permitted ruses of war and prohibited perfidious actions. ([1977] Additional Protocol [I] article 37.)
- Ruses of War
- A practical example of a legitimate ruse of war is a warship, which is wearing false colours to deceive the enemy, provided that she flies her national flag immediately prior to opening fire. She must thus go into action under her true colours. (Additional Protocol [I] article 39.)
- Perfidy
- It is prohibited to conduct operations in a perfidious manner.
- The following acts are examples of perfidy (Additional Protocol I article 37):
- To pretend having protected status by the use of flags, emblems or uniforms of the United Nations or of neutral States; etc. 
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.
[emphasis in original]
The manual also states:
4.1 LOAC 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 to be a neutral vessel …
- Ruses of war are permitted. Warships and auxiliary vessels, however, are prohibited from launching an attack whilst flying a false flag[.] 
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 possession of a protected status by using signs, emblems or uniforms … of neutral States or other States which are not Parties to the conflict” is an example of perfidy. 
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); see also § 5.3.c.
Spain
Spain’s LOAC Manual (2007) prohibits the act of perfidy and states that “the feigning of protected status by the use of signs, emblems or uniforms of … neutral or other States not Parties to the conflict” 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).(d) and 5.3.c.
Sweden
Sweden’s IHL Manual (1991) considers as an example of perfidious conduct “the feigning of protected status … of a member of the armed forces of a neutral state”. 
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) prohibits perfidy. Thus, “it is notably forbidden … to abuse a protected status by using signs, emblems or uniforms … of nations not involved in the conflict”. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 39.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
15.2 Prohibited methods of warfare
224 Wearing enemy uniforms or feigning protected status by using the insignia, emblems or uniforms of the United Nations or of neutral States or States that are not party to the conflict is prohibited. 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 224.
Ukraine
Ukraine’s IHL Manual (2004) states that an example of perfidy is “the feigning of protected status by the use of signs, emblems or uniforms of … neutral or other States not Parties to the international armed conflict”. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.44.
The manual further states: “Perfidious use of distinctive emblems (insignia or signals) of persons and objects protected by the laws of war shall constitute serious [violations of international humanitarian law].” 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.8.7.
United Kingdom of Great Britain and Northern Ireland
According to the UK LOAC Manual (2004), “the feigning of protected status by the use of signs, emblems or uniforms of … neutral or other States not Parties to the conflict” 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:
Article 19 of the Hague Rules 1923 prohibited the use of false external marks on aircraft. Additional Protocol I now prohibits the use at any time by any party to a conflict of the flags, military emblems, insignia or uniforms of neutral or other states not party to the conflict. The use of flags, military emblems, insignia or uniforms of an adverse party is prohibited “while engaging in attacks or in order to shield, favour or impede military operations”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 12.10.4.
The manual further 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.
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 protected status by the use of signs, emblems, or uniforms of … a neutral State or a State not party to the conflict”. 
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 a protected status by the use of symbols, signs, emblems or uniforms of neutral States or other States not parties to the conflict 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(3).
Australia
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides: “A person who, in Australia or elsewhere, commits a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence.” 
Australia, Geneva Conventions Act, 1957, as amended in 2002, Section 7(1).
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act (1995).
Canada
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides: “Every person who, whether within or outside Canada, commits a grave breach [of the 1977 Additional Protocol I] … is guilty of an indictable offence.” 
Canada, Geneva Conventions Act, 1985, as amended in 2007, Section 3(1).
Colombia
Colombia’s Penal Code (2000), in an article entitled “Perfidy”, imposes a criminal sanction on “anyone who, during an armed conflict, with intent to harm or attack the adversary, … uses improperly … flags or uniforms of neutral States”. 
Colombia, Penal Code, 2000, Article 143.
Cook Islands
The Geneva Conventions and Additional Protocols Act (2002) of the Cook Islands punishes “any person who in the Cook Islands or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach … of [the 1977 Additional Protocol I]”. 
Cook Islands, Geneva Conventions and Additional Protocols Act, 2002, Section 5(1).
Cyprus
Cyprus’s Additional Protocol I Act (1979) punishes “any person who, whatever his nationality, commits in the Republic or outside the Republic any grave breach of the provisions of the Protocol, or takes part or assists or incites another person in the commission of such a breach”. 
Cyprus, Additional Protocol I Act, 1979, Section 4(1).
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
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that grave breaches of the 1977 Additional Protocol I are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 3(1).
It adds that any “minor breach” of the 1977 Additional Protocol I, including violations of Article 37(1), is also a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
New Zealand
New Zealand’s Geneva Conventions Act (1958), as amended in 1987, provides:
Any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence. 
New Zealand, Geneva Conventions Act, 1958, as amended in 1987, Section 3(1).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).
Sierra Leone
Sierra Leone’s Geneva Conventions Act (2012) states:
2. Grave breaches of the [1949 Geneva] Conventions and the [1977] First [Additional] Protocol
(1) A person of whatever nationality commits an offence if that person, whether within or outside Sierra Leone commits, aids, abets or procures any other person to commit a grave breach specified in-
(e) … paragraph … 3 … of Article 85 of the First Protocol [on, inter alia, the grave breach of the perfidious use, in violation of Article 37 of the Protocol, of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or the Protocol]. 
Sierra Leone, Geneva Conventions Act, 2012, Section 2(1)(e).
South Africa
South Africa’s Implementation of the Geneva Conventions Act (2012) states:
5. Breach of Conventions and penalties
(1) Any person who, whether within or outside the Republic, commits a grave breach of the [1949 Geneva] Conventions, is guilty of an offence.
(2) For the purposes of subsection (1), “a grave breach” means–
(e) a grave breach referred to in Article … 85 of [the 1977 Additional] Protocol I. 
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 5(1)–(2)(e).
Spain
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict … uses … in a perfidious manner the flag, uniform, insignia or distinctive emblem of neutral States … or of other States which are not parties to the conflict”. 
Spain, Penal Code, 1995, Article 612(5).
United Kingdom of Great Britain and Northern Ireland
The UK Geneva Conventions Act (1957), as amended in 1995, punishes “any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of, a grave breach of … [the 1977 Additional Protocol I]”. 
United Kingdom, Geneva Conventions Act, 1957, as amended in 1995, Section 1(1).
Zimbabwe
Zimbabwe’s Geneva Conventions Act (1981), as amended in 1996, punishes “any person, whatever his nationality, who, whether in or outside Zimbabwe, commits any such grave breach of … [the 1977 Additional Protocol I]”. 
Zimbabwe, Geneva Conventions Act, 1981, as amended in 1996, Section 3(1).
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.
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ICRC
The ICRC Commentary on the Additional Protocols states:
The perfidious use … of emblems, signs, signals or uniforms referred to in Article 37 … of the Protocol [among which the signs, emblems or uniforms of neutral States or other States not parties to the conflict], for the purpose of killing, injuring or capturing an adversary, constitutes a grave breach under [Article 85(3)(f) of the 1977 Additional Protocol I]. 
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 3499.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “to pretend having protected status by the use of flags, emblems or uniforms … of neutral States” is an act of perfidy. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 409(e).
Delegates also teach that “the perfidious use of the … distinctive signs marking specifically protected persons and objects … [and of] other protected signs recognized by the law of war” constitutes a grave breach of the law of war. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 779(a) and (b).
ICRC
In a working paper on war crimes submitted in 1997 to the Preparatory Committee for the Establishment of an International Criminal Court, the ICRC included “the perfidious use of the … protective signs and signals recognized by international humanitarian law”, when committed in an international armed conflict, in its list of war crimes to be subject to the jurisdiction of the Court. 
ICRC, Working paper on war crimes submitted to the Preparatory Committee for the Establishment of an International Criminal Court, New York, 14 February 1997, § 1(b)(vi).
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