Section C. Simulation of being disabled by injuries or sickness
Additional Protocol I
Article 37(1)(b) of the 1977 Additional Protocol I lists “the feigning of an incapacitation by wounds or sickness” as an act of perfidy.
Additional Protocol II (draft)
Article 21(1) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided that “when carried out in order to commit or resume hostilities, … the feigning of a situation of distress” was considered perfidy.
However, this proposal was deleted from draft Article 21 adopted in Committee III of the CDDH.
San Remo Manual
Paragraph 111(b) of the 1994 San Remo Manual states: “Perfidious acts include the launching of an attack while feigning … distress by, e.g., sending a distress signal or by the crew taking to life rafts.”
Argentina
Argentina’s Law of War Manual (1989) states that “feigning incapacitation by wounds or sickness” is an example of perfidy.
Australia
Australia’s Commanders’ Guide (1994) states: “Acts which constitute perfidy include feigning of … an incapacitation by wounds or sickness.”
In a section entitled “Perfidy”, the Guide also states: “It is unlawful to falsely claim injury or distress for the purpose of escaping attack or inviting an enemy to lower their guard.”
Australia
Australia’s Defence Force Manual (1994) states: “Acts which constitute perfidy include feigning of … an incapacitation by wounds or sickness.”
Australia
Australia’s LOAC Manual (2006) states: “Acts which constitute perfidy include feigning of … an incapacitation by wounds or sickness.”
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states that “feigning being wounded and wanting to surrender and firing at an adversary willing to help” and “showing signs of distress in order to mislead the enemy” are acts of perfidy.
Belgium
Belgium’s Teaching Manual for Officers (1994) prohibits perfidy. For example, “feigning being dead to avoid capture is lawful, but not feigning to be wounded to kill an enemy who tries to help you”.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “Perfidy consists of committing a hostile act under the cover of legal protection (e.g. … feigning being disabled by injuries or sickness …)”.
Cameroon
Cameroon’s Instructor’s Manual (1992) provides that “feigning incapacitation by wounds or sickness” is an example of perfidy.

Likewise, “feigning being
hors de combat” is qualified as an act of perfidy.
Cameroon
Cameroon’s Instructor’s Manual (2006) lists “feigning being
hors de combat” as an “act of perfidy”.
Canada
Canada’s LOAC Manual (1999) states: “The following are examples of perfidy if a hostile act is committed while: … feigning incapacitation by wounds or sickness.”
Canada
Canada’s LOAC Manual (2001) states in its chapters on land warfare, air warfare and naval warfare: “The following are examples of perfidy if a hostile act is committed while: … feigning incapacitation by wounds or sickness.”
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
… The following acts are regarded as perfidy:
…
- the feigning of being
hors de combat.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
IHL prohibits recourse to perfidy with the aim to kill, injure or capture an enemy.
Regarded as perfidy is any act which appeals to the good faith of the enemy, with the intention to deceive him, and with the aim to make him believe that he is entitled to receive, or has the obligation to give, protection provided by the rules of IHL.
The following acts are examples of perfidy:
…
- feigning of an incapacitation by wounds or sickness.
Croatia
Croatia’s Commanders’ Manual (1992) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: … feigning … of incapacitation by wounds or sickness.”
Ecuador
Ecuador’s Naval Manual (1989) states:
It is a violation of the law of armed conflict to kill, injure or capture the enemy … by feigning shipwreck, sickness, [or] wounds … A surprise attack by a person feigning shipwreck, sickness, or wounds undermines the protected status of those rendered incapable of combat … Such acts of perfidy are punishable war crimes.
France
France’s LOAC Summary Note (1992) prohibits perfidy and provides: “It is forbidden … to feign … wounds or sickness.”
Germany
Under Germany’s Soldiers’ Manual (1991), “the feigning of being incapacitated for combat” constitutes a perfidious act.
Germany
Germany’s Soldiers’ Manual (2006) states that perfidious acts are those “by which the adversary is induced to believe that there is a situation affording protection under public international law, so that he may be attacked by surprise, e.g. the feigning of an incapacitation”.
Greece
The Hellenic Navy’s International Law Manual (1995) provides that “the feigning of being wounded” constitutes perfidy.
Hungary
Under Hungary’s Military Manual (1992), feigning incapacitation by wounds or sickness is an example of perfidy.
Israel
Referring to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states that the Israel Defense Forces (IDF) prohibit “the resort to perfidy to kill, injure or capture an adversary. Therefore, the IDF does not … feign incapacitation.”
Israel
Israel’s Manual on the Laws of War (1998) gives the following example of perfidy: “Pretending damage to fighting capacity through injury or illness with a view to gaining military advantage.”
Israel
Israel’s Manual on the Rules of Warfare (2006) states the following example of “betrayals of trust or treachery”:
Pretending to be injured or ill for the purpose of achieving a military advantage. Here again, the purpose is to prevent a situation in which the soldiers of one side would fear getting medical help for the wounded of the other side.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s LOAC Elementary Rules Manual (1991) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: … feigning … to be
hors de combat because of wounds or sickness.”
Madagascar
Madagascar’s Military Manual (1994) states that feigning incapacitation because of wounds or sickness is prohibited.
Netherlands
The Military Manual (1993) of the Netherlands states that the 1977 Additional Protocol I “gives a number of examples of treacherous behaviour [including] feigning to be
hors de combat by wounds or sickness”.
Netherlands
The Military Handbook (1995) of the Netherlands provides that it is a prohibited method of warfare “to perform treacherous acts (for example, feigning to have been killed or to be wounded … and then suddenly resume fighting)”.
Netherlands
The Military Manual (2005) of the Netherlands states:
AP I [1977 Additional Protocol I] lists a number of examples of acts of perfidy:
- the feigning of incapacitation by wounds or sickness;
…
It is forbidden to lead an adversary in battle to believe, by behaviour (moaning and groaning) that you are wounded and wish to surrender and then suddenly to open fire on those offering help. A combatant who feigns death on the battlefield to evade capture and then return to his own lines commits no act of perfidy. He only wants to mislead the enemy.
New Zealand
New Zealand’s Military Manual (1992) states that “the feigning of an incapacitation by wounds or sickness” is an example of perfidy.
However, the manual notes: “If the motive is survival rather than hostile intent, a soldier can, without committing perfidy, feign incapacity in order to live to fight another day.”
Nigeria
Nigeria’s Military Manual (1994) gives the following example of “perjury” (perfidy): “feigning incapacitation by wounds or sickness”.
Peru
Peru’s IHL Manual (2004) states that “the feigning of an incapacitation by wounds or sickness” is an example of perfidy.
Peru
Peru’s IHL and Human Rights Manual (2010) states that “the feigning of an incapacitation by wounds or sickness” is an example of perfidy.
Romania
Under Romania’s Soldiers’ Manual (1991), “simulation of incapacity due to wound or sickness” is an act of perfidy.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
When planning and conducting combat operations it is necessary to draw a clear distinction between perfidy and ruses of war. Perfidy means committing a hostile act under the cover of a right to protection by feigning: … incapacitation by wounds or sickness.
South Africa
South Africa’s LOAC Manual (1996) provides: “It is forbidden to feign … injury … Such actions are referred to as ‘perfidy’ and constitute grave breaches of the LOAC.”
South Africa
South Africa’s Revised Civic Education Manual (2004) states: “It is not permissible to attempt to deceive the enemy by abusing the LOAC or misusing the various protections it affords. For example, it is forbidden to feign … injury.”
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
- Perfidy
…
- It is prohibited to conduct operations in a perfidious manner.
…
- The following acts are examples of perfidy ([1977] Additional Protocol I article 37):
…
- To pretend being incapacitated by wounds or sickness[.]
The manual also states:
4.1 LOAC [law of armed conflict] in Naval Warfare
…
Deception, (Ruses of War) and Perfidy
- Military and auxiliary vessels are at all times prohibited from feigning protective, civilian or neutral status. Such actions will be [p]erfidy. Eg, the launching of an attack … while feigning surrender or distress by e.g. sending a distress signal or by the crew taking to life rafts.
Spain
Spain’s LOAC Manual (1996) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: … feigning … incapacitation by wounds or sickness.”
According to the manual, this is considered as an example of a perfidious act.
Spain
Spain’s LOAC Manual (2007) prohibits the act of perfidy and states that “the feigning of an incapacitation by wounds or sickness” is an example of such an act.
Sweden
Under Sweden’s IHL Manual (1991), “the feigning of incapacitation by wounds or sickness” constitutes perfidious conduct. However, “if for example a soldier simulates injury or sickness only to avoid an adversary’s attack, this is not judged as perfidy”.
Switzerland
Switzerland’s Basic Military Manual (1987) provides that perfidy is forbidden and that: “It is notably prohibited … to feign incapacitation for combat by wounds or sickness”.
Ukraine
Ukraine’s IHL Manual (2004) states that an example of perfidy is “the feigning of an incapacitation by wounds or sickness”.
United Kingdom of Great Britain and Northern Ireland
According to the UK Military Manual (1958), “it would be treachery for a soldier to sham wounded or dead and then to attack enemy soldiers who approached him without hostile intent”.
United Kingdom of Great Britain and Northern Ireland
According to the UK LOAC Manual (2004), “the feigning of an incapacitation by wounds or sickness” is an example of prohibited perfidy, “if done with intent to betray the enemy’s confidence”.
United States of America
The US Air Force Pamphlet (1976) considers that:
Since situations of distress occur during times of armed conflict, as well as peace, and frequently suggest that the persons involved are
hors de combat, feigning distress or death, wounds or sickness in order to resume hostilities constitutes perfidy in ground combat. However, a sick or wounded combatant does not commit perfidy by calling for and receiving medical aid even though he may intend immediately to resume fighting … In aerial warfare, it is forbidden to improperly use internationally recognized distress signals to lure the enemy into a false sense of security and then attack.
United States of America
The US Naval Handbook (1995) states:
It is a violation of the law of armed conflict to kill, injure or capture the enemy … by feigning shipwreck, sickness, [or] wounds … A surprise attack by a person feigning shipwreck, sickness, or wounds undermines the protected status of those rendered incapable of combat … Such acts of perfidy are punishable war crimes.
United States of America
The US Naval Handbook (2007) states:
It is a violation of the law of armed conflict to kill, injure, or capture the enemy … by feigning shipwreck, sickness, [or] wounds … A surprise attack by a person feigning shipwreck, sickness, or wounds undermines the protected status of those rendered incapable of combat. Such acts of perfidy are punishable war crimes.
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, states: “One may commit an act of treachery or perfidy by, for example … feigning incapacitation by wounds or sickness”.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states that “feigning incapacitation by wounds or sickness” is an act of perfidy.
Colombia
Colombia’s Penal Code (2000), in an article entitled “Perfidy”, imposes a criminal sanction on “anyone who, during an armed conflict and with intent to harm or attack the adversary, simulates the condition of a protected person”, including the wounded and sick.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
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.
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.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
…
The accused’s position is stated to be that this Court has no jurisdiction to try him.
…
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
…
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
…
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
…
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
…
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
…
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
…
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
…
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
…
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
…
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
…
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
…
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
…
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of
usus and/or
opinio juris have not been met. See
Petane.

[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of
usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of
opinio juris.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states:
Perfidy
International humanitarian law prohibits killing, injuring or capturing an adversary by resorting to perfidy. Acts of perfidy include any form of deception designed to win the confidence of an adversary and lead him to believe that he is entitled or obliged to accord protection under the rules of international humanitarian law, with the intention of betraying that confidence. An example of perfidy is to falsely lay claim to protected status through … feigning incapacitation on the grounds of injuries or sickness.
No data.
No data.
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts
Commenting on Article 35 of the draft Additional Protocol I (now Article 37), a Working Group reporting to Committee III of the CDDH stated: “Feigning death in order to kill an enemy once he turned his back would be perfidy.”
No data.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “to pretend being incapacitated by wounds or sickness” constitutes an act of perfidy.
No data.