Practice Relating to Rule 65. Perfidy

Note: For practice concerning the improper use of the distinctive emblems of the Geneva Conventions which does not amount to perfidy, see Rule 59.
Additional Protocol I
Article 85(3)(f) of the 1977 Additional Protocol I makes “the perfidious use … of the distinctive emblem of the red cross, red crescent or red lion and sun” a grave breach of the 1977 Additional Protocol I. Article 85(5) adds: “Without prejudice to the application of the [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.
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, notably through the misuse of an internationally recognized protective sign” was considered perfidy. 
CDDH, Official Records, Vol. I, Part Three, Draft Additional Protocols, June 1973, p. 39.
However, this proposal was deleted from draft Article 21 adopted in Committee III of the CDDH. 
CDDH, Official Records, Vol. XV, CDDH/407/Rev.1, 17 March–10 June 1977, p. 502.
ICC Statute
Under Article 8(2)(b)(vii) of the 1998 ICC Statute, “[m]aking improper use of … the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury” is a war crime in international armed conflicts. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2)(b)(vii).
Oxford Manual of Naval War
Article 15 of the 1913 Oxford Manual of Naval War states: “Methods … which involve treachery are forbidden. Thus it is forbidden … to make improper use … of distinctive badges of the medical corps.” 
The Laws of Naval War Governing the Relations between Belligerents, adopted by the Institute of International Law, Oxford, 9 August 1913, Article 15.
San Remo Manual
Paragraph 110 of the 1994 San Remo Manual provides:
Warships and auxiliary vessels … are prohibited … at all times from actively simulating the status of:
(a) hospital ships, small coastal rescue craft or medical transports;
(b) vessels on humanitarian missions;
(f) vessels entitled to be identified by the emblem of the red cross or red crescent. 
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.
San Remo Manual
Paragraph 111(a) of the 1994 San Remo Manual states that perfidious acts include the launching of an attack while feigning exempt 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).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Pursuant to Article 20(b)(v) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, “[t]he perfidious use of the distinctive emblem of the red cross, red crescent or red lion and sun” is a war crime. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 20(b)(v).
UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(b)(vii), “[m]aking improper use of … the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury” is a war crime in international armed conflicts. 
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 6(1)(b)(vii).
Argentina
Under Argentina’s Law of War Manual (1989), “the perfidious use of the sign of the Red Cross or Red Crescent” constitutes a grave breach of the 1977 Additional Protocol I and a war crime. 
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, § 8.03.
Australia
Australia’s Commanders’ Guide (1994), in a section entitled “Perfidy”, states: “Protection is afforded to … medical personnel … by providing them with special identification symbols. It is unlawful for soldiers and other lawful combatants to fraudulently use protected symbols or facilities to obtain immunity from attack.” 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 504.
Australia
Australia’s Defence Force Manual (1994) states:
Warships and auxiliary vessels … are prohibited … at all times from actively simulating the status of:
a. hospital ships, small coastal rescue craft or medical transports;
b. vessels on humanitarian missions;
f. vessels entitled to be identified by the emblem of the Red Cross or Red Crescent.
Perfidious acts include the launching of an attack while feigning:
a. exempt … status. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, §§ 635 and 636.
Australia
Australia’s LOAC Manual (2006) states that warships and auxiliary vessels are prohibited at all times from actively simulating the status of:
• hospital ships, small coastal rescue craft or medical transports;
• vessels on humanitarian missions;
• vessels entitled to be identified by the emblem of the Red Cross, Red Crescent or Red Crystal. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 6.35.
The manual further states:
Perfidious acts also include the launching of an attack while feigning:
• exempt … status. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 6.36.
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 “using the red cross emblem to cover hostile acts” 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.
Belgium
Belgium’s Teaching Manual for Soldiers provides: “The use of the sign of the Red Cross to cover military operations constitutes a perfidy which is considered as a war crime.” 
Belgium, Droit de la Guerre, Dossier d’Instruction pour Soldat, à l’attention des officiers instructeurs, JS3, Etat-Major Général, Forces Armées belges, undated, p. 19.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “The perfidious use of the following signs and signals constitutes a grave breach [of IHL]: … distinctive sign indicating specially protected persons or objects”. 
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. 46; see also Part I bis, pp. 46, 68 and 115.
The Regulations also states: “The use of the sign of the red cross to mask military operations constitutes perfidy … [and] is considered to be a war crime.” 
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. 84.
Cameroon
Cameroon’s Instructor’s Manual (1992) states that “using the emblems of the Red Cross or Red Crescent to transport personnel or material intended for the war effort” is considered a perfidious act. 
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. 64, § 234.
According to the manual, “abuse of the signs of the red cross or red crescent” is also a perfidious act. 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 149, § 531.1.
Cameroon
Cameroon’s Instructor’s Manual (2006) states that “the abuse of the signs of the Red Cross, Red Crescent or Red Crystal” 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 59, § 251; see also p. 85, § 341 and p. 183, § 494.A.
The manual further states that “using the emblems of the Red Ross, Red Crescent or Red Crystal to transport personnel or material designated for the war effort” is 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 193, § 494.A.
The manual also states:
The perfidious use of the following signs and signals constitutes a grave breach [of IHL]:
a) Distinctive signs indicating specially protected persons or objects
b) Other protective signs that are recognized by the law of armed conflict
c) Distinctive signs used for the identification of the medical service and civil defence. 
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. 296, § 661.
Canada
Canada’s LOAC Manual (1999) states that “feigning … non-combatant status” is a perfidious act and that medical personnel of the armed forces are non-combatants. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 3-3, § 20, p. 6-2, § 9(c) (land warfare), p. 7-2, § 17(c) (air warfare) and p. 8-11, § 81(d) (naval warfare); see also p. 8-10, § 79(f) (prohibition of actively simulating the status of vessels entitled to be identified by the emblem of the red cross and red crescent).
The manual also provides that “using false markings on military aircraft such as the markings of … medical aircraft” is an act of perfidy in air warfare. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 7-2, § 18(a).
The manual further provides that “perfidious use of the distinctive emblem of the Red Cross or Red Crescent” constitutes a grave breach of the 1977 Additional Protocol I and a war crime. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-2, § 8(a) and p. 16-3, § 16(f).
Canada
Canada’s Code of Conduct (2001) provides: “The use of the Red Cross to shield the movement of troops or ammunitions is … prohibited … Committing a hostile act under the cover of the protection provided by the distinctive emblem would constitute perfidy.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 10, § 10.
Canada
Canada’s LOAC Manual (2001) states in its chapter on naval warfare: “Warships and auxiliary vessels are also prohibited from actively simulating the status of: … f. vessels entitled to be identified by the emblem of the Red Cross or Red Crescent”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 856.5.f.
In its chapter on air warfare, the manual 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 … medical 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.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual identifies as a grave breach of the 1977 Additional Protocol I and a war crime the “perfidious use of the distinctive emblem of the Red Cross or Red Crescent”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1608.2.f.
Canada
Canada’s Code of Conduct (2005) provides:
False and improper use of the Red Cross/Red Crescent emblem is prohibited. The use of the Red Cross to shield the movement of troops or ammunitions is also prohibited. Perfidy is a war crime. Committing a hostile act under the cover of the protection provided by the distinctive emblem would constitute perfidy. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 10, § 10.
Chad
Chad’s Instructor’s Manual (2006) states that the “perfidious use of protective signs” is a grave breach of the 1977 Additional Protocol I and, as such, a war crime. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 108.
Colombia
Colombia’s Directive on IHL (1993) punishes:
the perfidious use of signs and signals, such as the distinctive signs which designate persons or objects specifically protected (… delegates of the International Committee of the Red Cross or other recognized humanitarian organizations), … [or of] distinctive signs used for the identification of the medical service. 
Colombia, Normas de Derecho Internacional Humanitario, Directiva Permanente No. 017, Ministerio de Defensa Nacional, 17 August 1993, Section III(D).
Colombia
Colombia’s Basic Military Manual (1995) states that the use of the red cross emblem to hide armaments or to deceive the adversary is “a grave breach of IHL called perfidy”. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 26; see also p. 49.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
Lesson 1. Basic notions of IHL
… The following acts are regarded as perfidy:
- The misleading use of all distinctive emblems (emblem of the red cross, the red crystal and the red crescent) …
Lesson 4. Breaches and repression of violations of IHL
I. Grave violations
They are enumerated by the Geneva Conventions and the Additional Protocols, as well as by the Ivorian Penal Code.
They are:
- perfidious use of protective signs,
I.2 Sanctions
In Côte d’Ivoire, the Penal Code has provided for the repression of certain violations:
- articles 472 and 473 [punish] the usurpation of a uniform, a decoration, signs and emblems. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 13, 15–16 and 29–30.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual further 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:
- using unduly the emblem of the red cross, the red crescent or the red crystal or any other distinctive sign. 
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.
Croatia
Croatia’s LOAC Compendium (1991) provides that the “perfidious use of distinctive protective signs” is a grave breach of the law of war and a war crime. 
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 56.
Croatia
Croatia’s Commanders’ Manual (1992) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: misuse of distinctive signs and signals.” 
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 46.
Dominican Republic
The Dominican Republic’s Military Manual (1980) states: “It is a serious breach of the laws of war when soldiers use these signs [red cross, red crescent, red lion and sun and red star of David] to protect or hide military activities.” 
Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, p. 5.
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states:
Abuse of the emblem
Any usage which is not expressly authorized by IHL constitutes an abuse of the emblem. One distinguishes between three kinds of abuse [one of which is]:
- perfidy, which consists of utilizing the emblem in times of conflict in order to protect combatants or military material; perfidious use of the emblem constitutes a “grave breach” of IHL, that is to say, a war crime. 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 16.
The manual also states that the following “are currently considered as war crimes … if committed against any person not or no longer participating in hostilities: … perfidiously utilizing the protective emblem of the red cross or red crescent”. 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, pp. 50–51.
Ecuador
Ecuador’s Naval Manual (1989) states:
Misuse of protective signs, signals, and symbols … in order to injure, kill, or capture the enemy constitutes an act of perfidy. Such acts are prohibited because they undermine the effectiveness of protective signs, signals, and symbols and thereby jeopardize the safety of non-combatants and the immunity of protected structures and activities. For example, using an ambulance or medical aircraft marked with the red cross or red crescent to carry armed combatants, weapons, or ammunition with which to attack or elude enemy forces is prohibited. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 12.2.
France
France’s LOAC Summary Note (1992) prohibits perfidy and provides: “It is forbidden to feign a protected status to invite the confidence of the enemy (abuse of distinctive signs and signals such as the Red Cross …).” 
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 4.4.
The Summary Note also states that the “perfidious use of protected signs and signals” is a grave breach of the law of war and a war crime. 
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 3.4.
France
France’s LOAC Teaching Note (2000) states that the recourse to perfidy is prohibited, “notably the abuse … of distinctive signs, such as the Red Cross”. 
France, Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 3.
France
France’s LOAC Manual (2001) states: “The use of these insignia [red cross and red crescent] to deceive the enemy with a fraudulent intent is an act of perfidy. It is prohibited and constitutes a war crime when resulting in death or serious injury.” 
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. 46.
The manual further states that the camouflage of a military activity in a relief operation, such as using an ambulance to permit the passage of combatants through enemy lines or using the red cross to lure the enemy into an ambush, is to be regarded as a war crime. 
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, pp. 62 and 94.
Generally, the manual considers that using a protective sign to deceive the enemy and reach an operational goal constitutes an act of perfidy, while “the perfidious use of any protective sign recognized by international law constitutes a war crime”. 
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, pp. 62 and 118; see also p. 115.
Germany
Germany’s Military Manual (1992) states: “The perfidious use of the distinctive emblem [red cross or red crescent] is explicitly prohibited and constitutes a grave breach of international law.” 
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 KonfliktenHandbuch, August 1992, § 640; see also § 1209.
Greece
The Hellenic Navy’s International Law Manual (1995) provides that “the perfidious use of the emblems of the Red Cross or Red Crescent” constitutes perfidy. 
Greece, International Law Manual, Hellenic Navy General Staff, Directorate A2, Division IV, 1995, Chapter 5, § 4.
Hungary
Under Hungary’s Military Manual (1992), the misuse of distinctive signs is an act of perfidy. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 63.
The manual also states that the “perfidious use of distinctive protective signs” is a grave breach of the law of war and a war crime. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 90.
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 … make unlawful use of protected emblems.” 
Report on the Practice of Israel, 1997, Chapter 2.4, referring to Conduct in the Battlefield in Accordance with the Law of War, Israel Defense Forces, 1986, p. 8.
Israel
Israel’s Manual on the Laws of War (1998) gives the following examples of perfidy:
It is forbidden to pose as … Red Cross personnel or use [this] organization’s uniform, flag and emblem … It is prohibited to misuse the emblems of medical personnel (a cross, crescent or red shield of David). 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, pp. 56 and 57.
Israel
Israel’s Manual on the Rules of Warfare (2006) states: “It is forbidden to harm those wearing the Red Cross symbol or to make false use of this insignia.” 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 35.
The manual further states: “The deceitful use of the insignia of a medical team (a red cross, crescent or star of David) is also prohibited.” 
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 IHL Manual (1991) states that grave breaches of international conventions and protocols, including “the perfidious use … of international protective signs”, constitute war crimes. 
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, § 85.
Italy
Italy’s LOAC Elementary Rules Manual (1991) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: misuse of distinctive signs.” 
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 46.
Italy
Italy’s Combatant’s Manual (1998) states:
The use of protective emblems as “cover” for belligerent actions or to harm the enemy in any way constitutes an ACT OF PERFIDY, which is a serious violation of International Law and severely punished by the Wartime Military Penal Code. 
Italy, Manuale del Combattente, SME 1000/A/2, Stato Maggiore Esercito/Reparto Impiego delle Forze, Ufficio Dottrina, Addestramento e Regolamenti, 1998, § 241.
[emphasis in original]
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.
The manual specifies that medical and religious personnel of the armed forces are to be regarded as non-combatants. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 9.
Madagascar
Madagascar’s Military Manual (1994) states that “it is prohibited to feign a protected status thereby inviting the confidence of the enemy”, such as the abuse of distinctive signs. 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 6-O, § 14.
Netherlands
The Military Manual (1993) of the Netherlands states:
Treachery means misusing the protection given by the law of war, for example misusing the Red Cross … [The 1977 Additional Protocol I] gives a number of examples of treacherous behaviour: … feigning to possess the status of civilian or non combatant (for example medical personnel or the personnel of the Red Cross). 
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:
It is forbidden to misuse the recognized emblems of the Red Cross and Red Crescent. It is also forbidden to make unauthorized use of other signs and emblems mentioned in the conventions on the law of war. These include signs of civilian protection and cultural property. Signs mean illuminated signs and electronic communication and identification, as governed by AP [1977 Additional Protocol I] Annex I. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0416.
New Zealand
New Zealand’s Military Manual (1992) states: “The use of false markings on military aircraft such as the markings of … medical 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).
The manual also states that “perfidious use of the distinctive emblem of the red cross, crescent or lion and sun” constitutes a grave breach of the 1977 Additional Protocol I and 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, §§ 1701(1) and 1703(3)(f).
Nigeria
Nigeria’s Military Manual (1994) gives the following example of “perjury” (perfidy): “Making improper use of the emblem of the Red Cross or red crescent.” 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, pp. 42 and 43, § 12(f).
Peru
Peru’s IHL Manual (2004) states that the “perfidious use of the distinctive sign of the red cross [or] red crescent” is a war crime. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 31.a.(8); see also § 172.h.
The manual further states:
Medical personnel must refrain from any act that can be classed as a war crime against persons or property protected under international humanitarian law. These include:
(5) deliberate misuse of the distinctive sign of the red cross … (act of perfidy), causing death or seriously endangering physical health or integrity. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 83.f.(5).
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 … humanitarian agencies, non-governmental organizations and international agencies engaged in eminently humanitarian or neutral functions. 
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 “perfidious use of the distinctive sign of the red cross, red crescent or other protective signs” is a war crime. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 32(c)(1)(a)(8), p. 248.
The manual further states:
Medical personnel must refrain from any act that can be classed as a war crime against persons or objects protected under international humanitarian law. These include:
(5) Deliberate misuse of the distinctive sign of the red cross, red crescent or other recognized protected signs, causing death or seriously endangering physical health or integrity. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 74(f)(5), p. 273.
Romania
Under Romania’s Soldiers’ Manual (1991), “feigning the status of a protected person by abusing the signs and emblems of the International Red Cross” is an act of perfidy. 
Romania, Manualul Soldatului, Ghid de comportare în luptă, Asociaţia Română de Drept Umanitar (ARDU), 1991, p. 35.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
Improper use of the emblem
The emblems are misused when used by:
a. unauthorized persons (e.g. commercial firms, non-governmental organizations etc)
b. armed combatants on their equipments e.g. ambulances or helicopters to transport armed combatants, ammunition or to mark ammunition dumps, [in a] position to deceive their enemies.
Note that these actions are considered perfidy, a war crime that is punishable. If witnessed, it should be reported to your superior. 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 49.
[emphasis in original]
South Africa
South Africa’s LOAC Manual (1996) states: “It is forbidden … to fight while under the protection of the red cross or red crescent emblem.” It is considered as perfidy and a grave breach of the law of armed conflict. 
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 states that “perfidious use of the red cross or red crescent emblem … in violation of Article 37 [of the 1977 Additional Protocol I]” is a grave breach of the 1977 Additional Protocol I 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, §§ 37(d) 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 … fight while under the protection of the red cross or red crescent emblem.” 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 56(c).
The manual also provides that “[t]he perfidious use of any distinctive sign or marking protecting persons or objects, such as medical personnel” 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, § 57.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
- Perfidy
- The following actions are perfidious and therefore prohibited:
- To mark persons and objects who are not entitled to it, with any of the distinctive signs, to wit, that of the medical services, … and other internationally recognised signs and signals, … ([1977] Additional Protocol I article 38.) 
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. …
- Ruses of war are permitted. Warships and auxiliary vessels, however, are prohibited from launching an attack whilst flying a false flag and at all times from actively simulating the status of protected vessels such as hospitals ships, small coastal rescue craft or medical transports. 
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.
The manual further states:
5.1 War Crimes and Grave Breaches of the LOAC
- [1977] Additional Protocol I article 85 provides further examples of grave breaches, in that it stipulates that the following acts shall be regarded as grave breaches when committed wilfully, and causing death or serious injury to body or health:
- The perfidious use of the distinctive emblem of the Red Cross or of other protective signs. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 5, p. 237.
Spain
Spain’s LOAC Manual (1996) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: misuse of distinctive signs and signals.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 10.8.e.(1).
The manual also states that it is a grave breach of the law of war and a war crime “to make a perfidious use of the distinctive sign of the Red Cross”. 
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, § 9.2.a.(2).
Spain
Spain’s LOAC Manual (2007) prohibits the act of perfidy and states that it is a war crime to make “[deliberate] misuse of … recognized protective emblems (act of perfidy), causing death or seriously endangering physical health or integrity”. 
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, § 9.2.a.(2).(b).
Sweden
Sweden’s IHL Manual (1991) provides: “Abuse of the distinctive emblem of the International Red Cross with perfidious intent is explicitly listed as perfidy and a gross infringement of international humanitarian law.” 
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) states that the “perfidious use of the distinctive sign of the Red Cross, Red Crescent … in violation of Article 37 [of the 1977 Additional Protocol I]” constitutes a grave breach of the 1977 Additional Protocol I. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 193(1)(f).
Ukraine
Ukraine’s IHL Manual (2004) 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
The UK Military Manual (1958) states: “Abuse of the distinctive sign for the purpose of offensive military action is a violation both of [the 1949 Geneva Convention I], and of the laws of war in general.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 379.
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).
The Pamphlet specifies that “medical personnel, chaplains and civilians accompanying the armed forces are non-combatants”. 
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 3, p. 10, § 8(a).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “The wrongful use of a distinctive emblem may constitute perfidy and thus a war crime.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 7.24.1.
In its chapter relating to the wounded and sick, the manual states: “The improper use of medical units to kill, injure or capture the enemy amounts to the war crime of perfidy.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 7.13.
In its chapter on enforcement of the law of armed conflict, the manual notes:
Additional Protocol I extends the definition of grave breaches to include the following:
b. any of the following acts, when committed wilfully, in violation of the relevant provisions of the protocol, and causing death or serious injury to body or health:
(6) the perfidious use of the distinctive emblem of the red cross, red crescent or of other protective signs recognized by the Conventions or the Protocol. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.25.
United States of America
The US Field Manual (1956) gives the following examples of “improper use of the emblem”:
using a hospital or other building accorded such protection as an observation post or military office or depot; firing from a building or tent displaying the emblem of the Red Cross; using a hospital train or airplane to facilitate the escape of combatants; displaying the emblem on vehicles containing ammunition or other non-medical stores; and in general cloaking acts of hostility. 
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, § 55.
United States of America
The US Air Force Pamphlet (1976) provides:
Medical aircraft cannot retain status as protected medical aircraft during any flight in which they engage in any activity other than the transportation of patients and medical personnel or medical equipment and supplies. Use of the red cross during such a mission would be perfidious and unlawful. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 2-6(e).
The Pamphlet also states that “the feigning by combatants of civilian, non-combatant status” is a perfidious act. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 8-3(a).
The Pamphlet specifies that medical and religious personnel of the armed forces are non-combatants. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 3-4(c).
United States of America
The US Soldier’s Manual (1984) states: “It is a serious breach of the laws of war when soldiers use these signs [red cross, red crescent and red shield of David] to protect or hide military activities.”  
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 7.
United States of America
The US Instructor’s Guide (1985) states:
The law of war prohibits treacherous acts. For example, there were occasions in World War II when the Nazis improperly identified buildings as hospitals and certain areas as protected areas. They really used the buildings or areas for direct military purposes such as observation posts, troop billets, defensive positions, or ammunition storage … Such tactics are prohibited because they destroy the basis for the restoration of peace short of the complete destruction of one side or the other. 
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 8.
The manual also states:
In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … misusing the Red Cross emblem such as using a medical evacuation helicopter to transport combat troops. 
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:
Misuse of protective signs, signals, and symbols … in order to injure, kill, or capture the enemy constitutes an act of perfidy. Such acts are prohibited because they undermine the effectiveness of protective signs, signals, and symbols and thereby jeopardize the safety of noncombatants and the immunity of protected structures and activities. For example, using an ambulance or medical aircraft marked with the red cross or red crescent to carry armed combatants, weapons, or ammunition with which to attack or elude enemy forces is prohibited. 
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), § 12.2.
United States of America
The US Naval Handbook (2007) states:
Improperly using protective signs, signals, and symbols … to injure, kill, or capture the enemy is an act of perfidy. Such acts are prohibited because they undermine the effectiveness of protective signs, signals, and symbols and thereby jeopardize the safety of noncombatants and the immunity of protected structures and activities. For example, using an ambulance or medical aircraft marked with the red cross or red crescent to carry armed combatants, weapons, or ammunition with which to attack or elude enemy forces is prohibited. 
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, § 12.2.
Note: Many national instruments ensure the protection of the emblems of the red cross, red crescent and red lion and sun at all times, while others specifically address and criminalize the perfidious use of the emblems in times of armed conflict. Only the latter materials have been included here. For legislation on the misuse, abuse or improper use of the emblems which does not amount to perfidy, see Rule 59.
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).
Australia
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including, when committed in international armed conflicts:
improper use of the distinctive emblems of the Geneva Conventions …
[when] the perpetrator uses the emblem for combatant purposes to invite the confidence of an adversary in order to lead him or her to believe that the perpetrator is entitled to protection, or that the adversary is obliged to accord protection to the perpetrator, with intent to betray that confidence …
[and when] the perpetrator’s conduct results in death or serious personal injury. 
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.44.
Azerbaijan
Azerbaijan’s Criminal Code (1999) provides that “the perfidious use in time of war of the flags and signs of the red cross and red crescent or of the colours of medical transport units” constitutes a war crime in international and non-international armed conflicts. 
Azerbaijan, Criminal Code, 1999, Article 119(1).
Belgium
Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (1993), as amended in 1999, provides that “the perfidious use of the distinctive emblem of the red cross” constitutes a crime under international law. 
Belgium, Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1993, as amended in 1999, Article 1(3)(16).
Belgium
Belgium’s Penal Code (1867), as amended in 2003, provides:
War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :
29. perfidious use of the red cross or red crescent distinctive emblem or other protective emblems of international humanitarian law, when it results in loss of life or serious injury. 
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 quater, § 1(29).
Belgium
Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :
16. perfidious use of the red cross or red crescent distinctive emblem or other protective emblems of international humanitarian law, when it results in loss of life or serious injury. 
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 ter, § 1(16).
Bolivia
Bolivia’s Emblem Law (2002) states:
Any person who has wilfully committed, or given the order to commit, acts which have caused the death or serious injury to the body or health of an adversary by making perfidious use of the Emblem of the Red Cross or of a distinctive signal, i.e., having invited the good faith of this adversary, with the intent to betray that good faith, to make him believe that he is entitled to receive or obliged to accord the protection provided by the rules of International Humanitarian Law, has committed a war crime. 
Bolivia, Emblem Law, 2002, Article 11.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Emblem Law (2002) states:
Anyone who has wilfully committed, or has given the order to commit, acts resulting in the death of, or causing serious injury to the body or health of an adversary by misusing the Red Cross or Red Crescent emblem or a distinctive signal in times of war, has committed a war crime and shall be punished in accordance with the provisions of the Criminal Code.
Misuse means appealing to the adversary with the intention to deceive him and make him believe that he is entitled to receive or is obliged to confer the protection provided for by the rules of international humanitarian law. 
Bosnia and Herzegovina, Emblem Law, 2002, Article 24.
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).
In an amendment to that Act, assented to on 22 June 2007, provision was made for the distinctive emblem contained within Additional Protocol III to be considered a distinctive emblem within the context of the Additional Protocol I provision that regards perfidious use of the distinctive emblem as a grave breach of the Protocol. This stated: “[T]he distinctive emblems mentioned in Article 85, paragraph 3(f) of [the 1977 Additional Protocol I] are deemed to include the third Protocol emblem, referred to in Article 2, paragraph 2 of [Additional Protocol III].”  
Canada, Geneva Conventions Act, 1985, as amended by An Act to amend the Geneva Conventions Act, an Act to incorporate the Canadian Red Cross Society and the Trade-marks Act, assented to on 22 June 2007, Section 3(1.1).
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
Central African Republic
The Central African Republic’s Law on the Red Cross Emblem (2009) states:
In accordance with the Penal Code of the Central African Republic, any person who, intentionally, commits or gives an order to commit acts leading to the death or to grave harm to the physical integrity or health of an adversary through the improper use of the Emblem of the Red Cross or one of the distinctive signals, shall be punished.
The improper use of the Emblem of the Red Cross or of one of the distinctive signals is considered to be a war crime. 
Central African Republic, Law on the Red Cross Emblem, 2009, Article 18.
Chad
Chad’s Emblem Law (2014) states:
Any person who, intentionally, in time of war, commits or gives the order to commit acts resulting in the death of or causing serious harm to the body or health of an adversary by making perfidious use of the emblem of the red cross or red crescent or a distinctive signal, commits a war crime and is punished by forced labour.
Perfidious use means improperly using the distinctive emblem of the red cross, red crescent or other protective signs recognized by international humanitarian law, or improperly using the badge of a parlementaire, the flag or military insignia and uniform of the enemy, or of the United Nations, and by doing so, causing the loss of human lives or serious injuries. 
Chad, Emblem Law, 2014, Article 11.
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 signs of protection such as the Red Cross or the Red Crescent”. 
Colombia, Penal Code, 2000, Article 143.
Colombia
Colombia’s Emblem Law (2004) states: “Abuse of the emblem is understood as perfidious use in accordance with Article 143 of the Colombian Penal Code.” 
Colombia, Emblem Law, 2004, Article 11.
The Law further states: “Any person who abuses the emblem of the red cross in times of armed conflict must be punished in accordance with the Colombian Penal Code.” 
Colombia, Emblem Law, 2004, Article 13.
Colombia
Colombia’s Decree No. 138 (2005) states: “The abuse of the emblem is understood as the perfidious use of the emblem by medical or religious personnel in accordance with Article 143 of the Colombian Penal Code.” 
Colombia, Decree No. 138, 2005, Article 2; see also Article 13.
Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) defines war crimes with reference to the categories of crimes defined in Article 8 of the 1998 ICC Statute. 
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 4.
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).
Costa Rica
Costa Rica’s Emblem Law (2000) punishes:
any person who, inviting the good faith of the adversary with intent to make him believe that he is entitled to protection of his physical integrity or his life or that he is obliged to accord protection in conformity with International Humanitarian Law, uses, or orders to be used, perfidiously the protective emblem. 
Costa Rica, Emblem Law, 2000, Article 8.
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).
El Salvador
El Salvador’s Emblem Law (2000) punishes “anyone who uses the emblem for perfidious purposes, in accordance with Article 37 … of [the 1977] Additional Protocol I”. 
El Salvador, Emblem Law, 2000, Article 15.
Ethiopia
Ethiopia’s Penal Code (1957) punishes the abuse of the emblems or insignia of the red cross, red crescent or red lion and sun, “with intent to prepare or to commit hostile acts”. 
Ethiopia, Penal Code, 1957, Article 294.
Ethiopia’s Criminal Code (2004) states:
Article 282.- Abuse of Emblems and Insignia of International Humanitarian Organizations.
Whoever intentionally:
(b) abuses [the] emblems or insignia [of the International Red Cross or Red Crescent or corresponding humanitarian relief organization] … with intent to prepare or to commit hostile acts,
is punishable with simple imprisonment, or, in cases of exceptional gravity, with rigorous imprisonment not exceeding five years. 
Ethiopia, Criminal Code, 2004, Article 282.
The Criminal Code of 2004 repealed Ethiopia’s Penal Code of 1957.
France
France’s Penal Code (1992), as amended in 2010, states in its section on war crimes related to international armed conflict:
Making improper use of … the distinctive emblems provided for under the 1949 Geneva Conventions and their [1977] Additional Protocols, and thereby causing serious bodily harm to a combatant from the adverse party is a punishable offence. 
France, Penal Code, 1992, as amended in 2010, Article 461-29.
Georgia
Under Georgia’s Criminal Code (1999), “the perfidious use of the distinctive sign of the red cross and red crescent” in an international or non-international armed conflict is a crime. 
Georgia, Criminal Code, 1999, Article 411(1)(f).
Germany
Germany’s Law Introducing the International Crimes Code (2002) punishes anyone who, in connection with an international or non-international armed conflict, “makes improper use of the distinctive emblems of the Geneva Conventions, … thereby causing a person’s death or serious injury”. 
Germany, Law Introducing the International Crimes Code, 2002, Article 1, § 10(2).
Guatemala
Guatemala’s Emblem Law (1997) punishes “anyone who, inviting the good faith of the adversary, with the intent to induce him to believe that he is entitled to the protection conferred by international humanitarian law, uses the protective emblem [of the red cross] in a perfidious manner”. 
Guatemala, Emblem Law, 1997, Article 12.
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).
Jordan
Jordan’s Military Penal Code (2002) states that the following shall be deemed a war crime when committed in the event of armed conflict: “Making perfidious use of the distinctive red crescent or red cross emblems or any other protective emblems”. 
Jordan, Military Penal Code, 2002, Article 41(a)(14).
Kyrgyzstan
Kyrgyzstan’s Emblem Law (2000) provides:
Anyone who intentionally has committed, or ordered to be committed, acts which cause death or serious injury to body or health of an adversary by using the emblem of the red crescent or red cross or a distinctive signal by having recourse to perfidy, has committed a war crime and shall be responsible in conformity with the legislation of the Kyrgyz Republic. 
Kyrgyzstan, Emblem Law, 2000, Article 10.
Liechtenstein
Liechtenstein’s Emblem Law (1957) punishes “whoever misuses the sign or the protection of the red cross for the preparation or the execution of hostilities”. 
Liechtenstein, Emblem Law, 1957, Article 8.
Mali
Under Mali’s Penal Code (2001), “using … the distinctive signs provided for by the Geneva Conventions, and thereby, causing loss of human lives or serious injuries” is a war crime in international armed conflicts. 
Mali, Penal Code, 2001, Article 31(i)(7).
Netherlands
Under the International Crimes Act (2003) of the Netherlands, it is a crime, during an international armed conflict, to commit “the following acts, when they are committed intentionally and in violation of the relevant provisions of Additional Protocol (I) and cause death or serious injury to body or health: … the perfidious use … of the distinctive emblem of the red cross or red crescent”. 
Netherlands, International Crimes Act, 2003, Article 5(2)(c)(vi).
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).
New Zealand
Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crimes defined in Article 8(2)(b)(vii) of the 1998 ICC Statute. 
New Zealand, International Crimes and ICC Act, 2000, Section 11(2).
Nicaragua
Nicaragua’s Emblem Law (2002) provides:
Any person who, intentionally and inviting the good faith of the adversary, leading him to believe that he has the right to, or the obligation to accord, the protection provided for under the rules of international humanitarian law by using the emblem of the Red Cross or of a distinctive signal in a perfidious manner, has committed, or given the order to commit, acts which cause the death or seriously injure the body or health of an adversary, shall be punished in accordance with the criminal legislation in force. 
Nicaragua, Emblem Law, 2002, Article 12.
Niger
According to Niger’s Penal Code (1961), as amended in 2003, “using perfidiously the distinctive sign of the red cross or of the red crescent”, protected under the 1949 Geneva Conventions and their Additional Protocols of 1977, is a war crime. 
Niger, Penal Code, 1961, as amended in 2003, Article 208.3(16).
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).
Peru
Peru’s Military and Police Criminal Code (2010), in a chapter entitled “Crimes involving the use of prohibited methods in the conduct of hostilities, states:
A member of the military or the police shall be punished with deprivation of liberty of not less than ten and not more than twenty years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she improperly uses the protective signs of the [1949] Geneva Conventions … with the result set out in Article 33, paragraphs 16 and 17 [of the present code, namely causing serious injury or death]. 
Peru, Military and Police Criminal Code, 2010, Article 96.
Republic of Moldova
The Republic of Moldova’s Emblem Law (1999) provides: “The perfidious use of the emblem of the red cross as a protective device in time of armed conflict is considered as a war crime and shall be punished in conformity with the criminal legislation.” 
Republic of Moldova, Emblem Law, 1999, Article 17(1).
Republic of Moldova
The Republic of Moldova’s Penal Code (2002) punishes the “perfidious use of the Red Cross emblem, as well as of the distinctive signs as protective elements during an armed conflict, provided that this has caused: a) a grave injury to body or health; b) death of a person”. 
Republic of Moldova, Penal Code, 2002, Article 392.
Rwanda
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
Article: 8
A war crime is one of the following acts, committed during armed conflicts against persons or property protected under the Geneva Conventions of 12 August 1949 and its Additional Protocols I and II of 8 June 1977:
10° making perfidious use of the distinctive emblem of humanitarian organizations or other protective signs of persons or objects recognized under international law, in order to kill, wound or capture an adversary;
Article: 9
Shall be punished by one of the following penalties any person having committed one of the war crimes provided for in Article 8 of this law:
2° imprisonment for ten (10) to twenty (20) years where he has committed a crime provided for in point 6°, 7°, 8°, 10° or 12° of Article 8 of this law. 
Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Articles 8–9.
Senegal
Senegal’s Law on the Utilization and Protection of the Red Cross and Red Crescent Emblems (2005) states:
Abuse of the protected emblems in times of war
Any person who, by utilizing the emblem of the red cross or of the red crescent or a distinctive signal thus resorting to perfidy, intentionally commits or orders to commit acts which lead to death, is to be punished with indefinite hard labour. 
Senegal, Law on the Utilization and Protection of the Red Cross and Red Crescent Emblems, 2005, Article 11.
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 ICC Act (2002) reproduces the war crimes listed in the 1998 ICC Statute, including in international armed conflicts: “making improper use … of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury”. 
South Africa, ICC Act, 2002, Schedule 1, Part 3, § (b)(vii).
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 protective or distinctive signs, emblems or signals established and recognized under international treaties to which Spain is a party, in particular the distinctive signs of the Red Cross and Red Crescent. 
Spain, Penal Code, 1995, Article 612(4).
Spain’s Penal Code (1995), as amended in 2010, removes the reference to “in a perfidious manner” from this article.  
Spain, Penal Code, 1995, as amended on 23 June 2010, Article 612(4).
Sweden
Under Sweden’s Penal Code (1962), as amended in 1998, the misuse of emblems of medical aid (red cross) or “the killing or injuring of an opponent by means of some other form of treacherous behaviour” constitutes a crime against international law. 
Sweden, Penal Code, 1962, as amended in 1998, Chapter 22, § 6(2).
Switzerland
Switzerland’s Military Criminal Code (1927), as amended, punishes “anyone who abuses the emblem or the protection of the Red Cross, Red Crescent, Red Lion and Sun … to prepare or commit hostile acts” in time of armed conflict. 
Switzerland, Military Criminal Code, 1927, as amended, Article 110.
Switzerland
Switzerland’s Military Criminal Code (1927), as amended in 2007, states:
Any person who abuses the emblem or the protection of the Red Cross, Red Crescent, Red Lion and Sun, [or] the emblem of the third Additional Protocol [2005 Additional Protocol III] to the [1949] Geneva Conventions … in order to prepare or commit hostile acts is to be punished with three years’ or more imprisonment or a monetary penalty or, in less serious cases, a year imprisonment or less. 
Switzerland, Military Criminal Code, 1927, as amended in 2007, Article 110.
Syrian Arab Republic
The Syrian Arab Republic’s Emblem Law (2005) provides:
Without prejudice to more aggravated penalty in other laws, anyone who has wilfully used, or ordered the use of [the Red Crescent or the Red Cross emblem], in times of war or armed conflict with the intention to deceive the adversary and make him believe that he was entitled to receive or was obliged to confer protection provided by those emblems shall be punished by imprisonment for a period of 25 years with temporary hard labour. 
Syrian Arab Republic, Emblem Law, 2005, Article 7.
Tajikistan
Tajikistan’s Criminal Code (1998) punishes “the perfidious use of the distinctive sign of the red cross and red crescent” in an international or internal armed conflict. 
Tajikistan, Criminal Code, 1998, Article 403(1).
Togo
Togo’s Emblem Law (1999) punishes “any person who, intentionally, shall have committed, or ordered to be committed, acts which have caused death or serious injury to body or health of an adversary by using in a perfidious way, the emblem of the Red Cross or Red Crescent or a distinctive signal”. It adds: “The perfidious use of the emblem constitutes a grave breach of the Geneva Conventions and their Additional Protocols and is considered as a war crime.” 
Togo, Emblem Law, 1999, Article 16.
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).
United Kingdom of Great Britain and Northern Ireland
Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(b)(vii) of the 1998 ICC Statute. 
United Kingdom, ICC Act, 2001, Sections 50(1) and 51(1) (England and Wales) and Section 58(1) (Northern Ireland).
Uzbekistan
Uzbekistan’s Emblem Law (2004) states:
The use of the red crescent and red cross emblems, distinctive signals, designations “Red Crescent” and “Red Cross” or of signs and designations representing their imitation in commercial activities, as well as their perfidious use in armed conflict, shall not be allowed. 
Uzbekistan, Emblem Law, 2004, Article 14.
Yemen
Under Yemen’s Military Criminal Code (1998), the “perfidious use of the distinctive emblem of the Yemeni Red Crescent” is a war crime. 
Yemen, Military Criminal Code, 1998, Article 21(5).
Yemen
Under Yemen’s Emblem Law (1999), “any person who has used the emblem, with perfidious intent, in time of war, so as to cause death or serious injury to body or health of any person, or has ordered such use, shall be punished by the sanction defined in the laws in force”. 
Yemen, Emblem Law, 1999, Article 12.
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).
Canada
In 2013, in the Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.” 
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
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 the Hagendorf case before the US Intermediate Military Government Court at Dachau in 1946, the accused, a German soldier, was charged with having “wrongfully used the Red Cross emblem in a combat zone by firing a weapon at American soldiers from an enemy ambulance displaying such emblem”. The accused was found guilty. 
United States, Intermediate Military Government Court at Dachau, Hagendorf case, Judgment, 9 August 1946.
Burundi
In 2010, within the context of a Training Workshop on Military Criminal Law for Military Judges, the Ministry of National Defence and Former Combatants stated:
The CPM [Military Penal Code (1980)], in article 60, punishes … any person who, in the area of operations of a unit [and] in violation of the laws and customs of war, improperly uses the distinctive signs and emblems defined by international conventions to ensure the respect for persons, objects and places protected by these conventions.
The distinctive signs concerned are:
- The Red Cross on a white ground for the medical service and religious personnel.
Article 60 of the CPM punishes more precisely the act of perfidy under international humanitarian law. The same act is punished as a war crime by the CPO [Penal Code (2009)] in article 198(2°)(g) for international armed conflicts. 
Burundi, Ministry of National Defence and Former Combatants, Training Workshop on Military Criminal Law for Military Judges, November 2010, p. 16.
Rwanda
On the basis of replies by army officers to a questionnaire, the Report on the Practice of Rwanda states that treachery is prohibited. According to the report, this may consist in the improper use of the signs of the red cross or red crescent. The report gives as examples of treachery the transportation of weapons and ammunition in an ambulance and the use of a hospital displaying the distinctive emblem as an ammunition dump. 
Report on the Practice of Rwanda, 1997, Replies by army officers to a questionnaire, Chapter 2.6.
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 the misuse of signs or emblems[.] 
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, p. 34.
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 (e.g. member of the medical or religious personnel, …) 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
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated: “Perfidious acts include … the feigning of protected status through improper use of the Red Cross or Red Crescent distinctive emblem.” 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 632.
UN Commission of Experts Established pursuant to Security Council Resolution 789 (1992)
In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 789 (1992) considered that “the Hagendorf case … in which a German soldier was convicted for abusing the Red Cross emblem by firing at American soldiers from an ambulance, might constitute a useful precedent. In that case, however, the accused was captured at the time of the incident.” 
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), Final report, Annex VI.B, UN Doc. S/1994/674/Add.2 (Vol. III), 28 December 1994, § 85.
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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 “the perfidious use of the … distinctive signs marking specifically protected persons and objects … [and of] distinctive signals used for identification of medical service” 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 (c).
ICRC
In a press release issued in 1985, the ICRC reported that a car loaded with explosives was set off by its driver near a check-point in southern Lebanon. According to witnesses, the car was bearing the red cross emblem. The ICRC stated: “The use of the protective emblem of the Red Cross for indiscriminate killing and wounding is a doubly detestable act which the International Committee of the Red Cross (ICRC) condemns.” 
ICRC, Press Release No. 1509, South Lebanon: The red cross emblem used for a bombing attack, 16 July 1985.
ICRC
The 1996 ICRC Model Law concerning the Use and Protection of the Emblem of the Red Cross or Red Crescent provides:
Anyone who has wilfully committed, or has given the order to commit, acts resulting in the death of, or causing serious injury to the body or health of, an adversary by making perfidious use of the red cross or red crescent emblem or a distinctive signal, has committed a war crime and shall be punished by imprisonment for a period of … years.
Perfidious use means appealing to the good faith of the adversary, with the intention to deceive him and make him believe that he was entitled to receive or was obliged to confer the protection provided for by the rules of international humanitarian law. 
ICRC, Model Law concerning the Use and Protection of the Emblem of the Red Cross or Red Crescent, Article 11, IRRC, No. 313, 1996, p. 486.
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 distinctive emblem of the red cross or red crescent”, 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).
Le Monde
In 1987, an article published in the French newspaper Le Monde discussed an incident in which the counterrevolutionary forces in Nicaragua had allegedly used a helicopter bearing the emblem of the red cross to carry military supplies. The ICRC was reported in the article as stating that the red cross emblem may only be used by the medical services of the belligerent forces to provide protection for the wounded and sick and for the persons providing care for them. The use of a vehicle marked with the red cross emblem to transport soldiers, weapons or other military equipment was described in the article as “a grave breach of the rules of international humanitarian law”. 
Isabelle Vichniac, Violation of the Rules of Humanitarian Law? Red Cross Warns Against Contras’ use of its Emblem for Military Purposes, Le Monde, 19 June 1987.