Practice Relating to Rule 69. Loss of Inviolability of Parlementaires
Hague Regulations (1899)
Article 34 of the 1899 Hague Regulations provides: “The parlementaire loses his rights of inviolability if it is proved beyond doubt that he has taken advantage of his privileged position to provoke or commit an act of treason.”
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, Article 34.
Hague Regulations (1907)
Article 34 of the 1907 Hague Regulations provides: “The parlementaire loses his rights of inviolability if it is proved in a clear and incontestable manner that he has taken advantage of his privileged position to provoke or commit an act of treason.”
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 34.
Brussels Declaration
Article 45 of the 1874 Brussels Declaration states: “The parlementaire loses his rights of inviolability if it is proved in a clear and incontestable manner that he has taken advantage of his privileged position to provoke or commit an act of treason.”
Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, Article 45.
Oxford Manual
Article 31 of the 1880 Oxford Manual states: “If it be proved that [a parlementaire] has taken advantage of his privileged position to abet a treasonable act, he forfeits his right to inviolability.”
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 31.
Oxford Manual of Naval War
Article 45 of the 1913 Oxford Manual of Naval War provides: “A cartel ship loses its rights of inviolability if it is proved, positively and unexceptionably, that the commander has profited by the privileged position of his vessel to provoke or to commit a treacherous act.”
The Laws of Naval War Governing the Relations between Belligerents, adopted by the Institute of International Law, Oxford, 9 August 1913, Article 45.
Oxford Manual of Naval War
Article 65 of the 1913 Oxford Manual of Naval War deals with parlementaires and states that the personnel of a cartel ship loses its rights of inviolability “if it is proved in a clear and incontestable manner that it has taken advantage of its privileged position to provoke or commit an act of treason”.
The Laws of Naval War Governing the Relations between Belligerents, adopted by the Institute of International Law, Oxford, 9 August 1913, Article 65.
Argentina
Argentina’s Law of War Manual (1969) provides: “The parlementaire loses his right to inviolability if there is concrete and decisive evidence that he has taken advantage of his privileged situation to commit or provoke an act of treason.”
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 6.003.
Belgium
Belgium’s Teaching Manual for Officers (1994) states: “The search for information, the fact of provoking or committing an act of treason under the cover of [a parlementaire’s] mission induces the loss of his rights.”
Belgium, Droit de la Guerre, Manuel d’Instruction pour Officiers, Etat-Major Général, Division Opérations, 1994, Part I, Title II, p. 25.
Canada
Canada’s LOAC Manual (1999) states that a “parlementaire and those who are in his or her party are entitled to complete inviolability, so long as they do nothing to abuse this protection, or to take advantage of their protected position [for example, by collecting information covertly]”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 14-1, § 5.
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Communications and contact between opposing forces”:
3. The parlementaire and those who are in his or her party are entitled to complete inviolability, so long as they do nothing to abuse this protection, or to take advantage of their protected position.
…
7. After making contact with the adverse party, the parlementaire must obey any orders that a party provides regarding the entry of that party’s lines, and must withdraw if so instructed. During the withdrawal and return to the parlementaire’s own lines, the parlementaire continues to enjoy inviolability and may not be attacked. When ordered to withdraw, the parlementaire must be given a reasonable time in which to do so. Failure to withdraw results in loss of protection and the parlementaire may then be fired upon. If the parlementaire remains within enemy lines after being ordered to withdraw, he loses his inviolability and may be made a PW [prisoner of war]. Detention may occur if the parlementaire has abused the position of parlementaire, for example, by collecting information covertly. It is not an abuse of the position for the parlementaire, however, to report on observations made.
8. Only the parlementaire and an interpreter are entitled to enter enemy lines. The other members of the party must obey orders given by the adverse party. They remain entitled to protection until the parlementaire rejoins them and they return to their own lines.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1402.3 and 7–8.
Germany
Germany’s Military Manual (1992) provides:
The parlementaire loses his right of inviolability if it is proved in an incontestable manner that he has taken advantage of his privileged position to provoke or commit an act of treason … Such a case of misuse, which implies the right to detain the parlementaire … exists if the latter has committed acts contrary to international law and to the detriment of the adversary during his mission. This includes particularly the following activities:
– gathering intelligence beyond the observations he inevitably makes when accomplishing his mission;
– acts of sabotage;
– inducing soldiers of the adverse party to collaborate in collecting intelligence;
– instigating soldiers of the adverse party to refuse to do their duty;
– encouraging soldiers of the adverse party to desert; and
– organizing espionage in the territory of the adverse party.
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 229.
Italy
Italy’s IHL Manual (1991) provides that the parlementaire who continues to advance, or does not withdraw after having been ordered to do so, loses the status of inviolability after sufficient time to withdraw has been given.
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 54.
The manual further states that if “the parlementaire takes advantage of his privileged position to accomplish or attempt to accomplish acts of treason, he loses the right to inviolability and can be punished according to wartime penal law”.
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 58.
Italy
Italy’s Combatant’s Manual (1998) states that it is prohibited to “carry out any act of violence against Parlementaires and their escort, unless they carry out a hostile act first”.
Italy, Manuale del Combattente, SME 1000/A/2, Stato Maggiore Esercito/Reparto Impiego delle Forze, Ufficio Dottrina, Addestramento e Regolamenti, 1998, § 247.
Netherlands
The Military Manual (2005) of the Netherlands states: “The parlementaire has a right to inviolability, as long as he does not misuse his protection.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0419.
New Zealand
New Zealand’s Military Manual (1992) states:
The parlementaire and those with him are entitled to complete inviolability, so long as they do nothing to abuse this protection or to take advantage of their protected position …
When ordered to withdraw, the parlementaire must be given a reasonable time in which to do so. If he fails to withdraw, he loses his inviolability and may be fired upon.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 406(3) and (7).
Spain
According to Spain’s Field Regulations (1882), parlementaires lose their inviolability and may be subject to severe punishment if they are “caught while collecting information or notes; violating in any manner the laws and customs of war … instigating prisoners to revolt; or inducing in any manner the populations to rise against the occupation army”.
Spain, El Reglamento para el Servicio de Campaña, 4 January 1882, § 902.
Spain
Spain’s LOAC Manual (1996) states:
The parlementaire loses his inviolability if it is proved in an incontestable manner that he has taken advantage of his privileged situation to provoke or commit acts of treason, such as:
– Acts of sabotage.
– Inducing enemy soldiers to collect intelligence.
– Instigating enemy soldiers to refuse to do their duty.
– Encouraging soldiers to desert.
– Influencing negatively their morale.
– Organizing espionage in enemy territory.
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, § 2.6.c.(1).
Spain
Spain’s LOAC Manual (2007) states:
[Parlementaires] lose their rights of inviolability if it is clearly and incontestably proved that they have taken advantage of their privileged position to provoke or commit an act of treason, such as:
- committing acts of sabotage;
- persuading enemy soldiers to provide information;
- inciting enemy soldiers not to fulfil their obligations;
- encouraging enemy soldiers to desert;
- undermining the morale of enemy soldiers;
- organizing espionage in enemy territory.
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, § 2.6.c.(1).
The manual further states that “parlementaires … who take a direct part in hostilities” are military objectives and can therefore be attacked.
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, § 4.5.b.(1).(a).
Switzerland
Switzerland’s Basic Military Manual (1987) states: “The parlementaire loses his right to inviolability if it is proven in a positive and incontestable manner that he has taken advantage of his privileged position to provoke or commit an act of treason.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 15.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states that, in application of the principle of distinction, a “parlementaire [who] approaches with a white flag” must not be shot at, explaining: “Protected person, until he has returned to his own troops, except if he commits a harmful act”.
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, § 172.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides: “If signalled or ordered to retire, [a parlementaire] must do so at once. If he does not do so within reasonable time he loses his inviolability.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 405.
The manual further states: “A parlementaire loses his right of inviolability if it is proved beyond any doubt that he has taken advantage of his privileged position to provoke or commit an act of treachery.” United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 413.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
10.10. A parlementaire loses his right of inviolability altogether if it is proved beyond doubt that he has taken advantage of his privileged position to provoke or commit “an act of treason.” That includes engaging in sabotage or espionage or inducing members of the enemy armed forces to desert. Any measures taken against a parlementaire or his party should be reported at once to the enemy.
10.10.1. It is forbidden to make improper use of a flag of truce. Thus, a feigned intention to negotiate or surrender with the intention of using the white flag as cover for the collection of information might amount to the war crime of perfidy whatever the consequences. It would amount to a grave breach of Additional Protocol I if it resulted in death or serious injury. A parlementaire who abuses his position in this way can be taken as a prisoner of war and tried.
Orders to withdraw
10.11. If ordered to withdraw, the parlementaire must do so at once. If he does not do so within reasonable time, he loses his inviolability and is liable to be fired on or to be made prisoner of war.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 10.10–10.11.
United States of America
The US Field Manual (1956) states: “The parlementaire loses his right of inviolability if it is proved in a clear and incontestable manner that he has taken advantage of his privileged position to provoke or commit an act of treachery.”
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, § 466.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) provides:
A parlementaire or the persons in his escort can be court-martialled if they do not respect the conditions determined by the commander who receives the parlementaire and that the parlementaire or the commander who sends him had accepted, if it is clear and incontestable that they used their privileged position to collect information of military nature, or if the other side sends them for perfidious purposes, with intent of its troops to do military actions under the protection of the white flag, and they know of that intent.
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, § 131.
Ecuador
Ecuador’s National Civil Police Penal Code (1960) provides: “Parlementaires shall lose their character [of inviolability] if they abuse their condition to commit acts in favour of the armed forces of the enemy nation.”
Ecuador, National Civil Police Penal Code, 1960, Article 117(7).
Italy
Italy’s Law of War Decree (1938), as amended in 1992, states that a parlementaire who continues to advance, or does not withdraw after having been ordered to do so, loses the status of inviolability after sufficient time to withdraw has been given.
Italy, Law of War Decree, 1938, as amended in 1992, Article 70.
The Decree also states that a parlementaire who “takes advantage of his privileged position to commit acts of treason loses his right to inviolability”.
Italy, Law of War Decree, 1938, as amended in 1992, Article 72.
Yugoslavia, Socialist Federal Republic of
The commentary on the Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, states: “If [a parlementaire] abuses [his] duty (in order to perform espionage, to try to film positions or to establish contact with other persons in order to recruit them, etc.), he is no longer entitled to immunity.”
Yugoslavia, Socialist Federal Republic, Penal Code, 1976, as amended in 2001, commentary on Article 149.
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that bearers of a white flag “may not take advantage of their mission for intelligence purpose[s]”.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 540.
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