Practice Relating to Rule 65. Perfidy

Note: For practice concerning the improper use of other internationally recognized emblems which does not amount to perfidy, see Rule 61.
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, 1957, Section 7(1).
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act (1995).
Canada
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides: “Every person who, whether within or outside Canada, commits a grave breach [of the 1977 Additional Protocol I] … is guilty of an indictable offence.” 
Canada, Geneva Conventions Act, 1985, as amended in 2007, Section 3(1).
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 provided for in international treaties ratified by Colombia”. 
Colombia, Penal Code, 2000, Article 143.
Cook Islands
The Geneva Conventions and Additional Protocols Act (2002) of the Cook Islands punishes “any person who in the Cook Islands or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach … of [the 1977 Additional Protocol I]”. 
Cook Islands, Geneva Conventions and Additional Protocols Act, 2002, Section 5(1).
Cyprus
Cyprus’s Additional Protocol I Act (1979) punishes “any person who, whatever his nationality, commits in the Republic or outside the Republic any grave breach of the provisions of the Protocol, or takes part or assists or incites another person in the commission of such a breach”. 
Cyprus, Additional Protocol I Act, 1979, Section 4(1).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Ethiopia
Ethiopia’s Penal Code (1957) punishes the abuse of any “protective device recognized in public international law, … with intent to prepare or to commit hostile acts”. 
Ethiopia, Penal Code, 1957, Article 294(b).
Ethiopia
Ethiopia’s Criminal Code (2004) states:
Article 282.- Abuse of Emblems and Insignia of International Humanitarian Organizations.
Whoever intentionally:
(b) abuses … any … protective device recognized in public international law … 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.
Georgia
Under Georgia’s Criminal Code (1999), “the perfidious use of … protective signs and signals recognized by international humanitarian law” in an international or non-international armed conflict is a crime. 
Georgia, Criminal Code, 1999, Article 411(1)(f).
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 … any … protective emblems”. 
Jordan, Military Penal Code, 2002, Article 41(a)(14).
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 … protective emblems recognized by the Geneva Conventions or Additional Protocol (I)”. 
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).
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).
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 their 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.
Sierra Leone
Sierra Leone’s Geneva Conventions Act (2012) states:
2. Grave breaches of the [1949 Geneva] Conventions and the [1977] First [Additional] Protocol
(1) A person of whatever nationality commits an offence if that person, whether within or outside Sierra Leone commits, aids, abets or procures any other person to commit a grave breach specified in-
(e) … paragraph … 3 … of Article 85 of the First Protocol [on, inter alia, the grave breach of the perfidious use, in violation of Article 37 of the Protocol, of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or the Protocol]. 
Sierra Leone, Geneva Conventions Act, 2012, Section 2(1)(e).
South Africa
South Africa’s Implementation of the Geneva Conventions Act (2012) states:
5. Breach of Conventions and penalties
(1) Any person who, whether within or outside the Republic, commits a grave breach of the [1949 Geneva] Conventions, is guilty of an offence.
(2) For the purposes of subsection (1), “a grave breach” means–
(e) a grave breach referred to in Article … 85 of [the 1977 Additional] Protocol I. 
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 5(1)–(2)(e).
Spain
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict … uses … in a perfidious manner the protective or distinctive signs, emblems or signals established and recognized under international treaties to which Spain is a party”. 
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 the sign for civil defence and other internationally recognized emblems 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).
(emphasis added)
Switzerland
Switzerland’s Military Criminal Code (1927), as amended, punishes “anyone who abuses … the emblem of cultural property … 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 of cultural property 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.
Tajikistan
Tajikistan’s Criminal Code (1998) punishes “the perfidious use of … protective signs and signals recognized by international humanitarian law” in an international or internal armed conflict. 
Tajikistan, Criminal Code, 1998, Article 403(1).
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).
Yemen
Under Yemen’s Military Criminal Code (1998), the “perfidious use of … international protective emblems provided for in international conventions” is a war crime. 
Yemen, Military Criminal Code, 1998, Article 21(5).
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).
Additional Protocol I
Under Article 85(3)(f) of the 1977 Additional Protocol I, “the perfidious use, in violation of Article 37, of … protective signs recognized by the Conventions or this Protocol” is a grave breach of the 1977 Additional Protocol I. 
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). Article 85 was adopted by consensus. CDDH, Official Records, Vol. VI, CCDH/SR.44, 30 May 1977, p. 291.
Article 85(5) adds: “Without prejudice to the application of the [1949 Geneva] Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes”. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 85(3)(f) and (5). Article 85 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.44, 30 May 1977, p. 291.
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 … recognized protective signs” 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).
Argentina
Argentina’s Law of War Manual (1989) provides that “the perfidious use of … recognized protective signs” is 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 … civil defence workers … and PW by providing them with special identification symbols. It is unlawful for soldiers and other lawful combatants to fraudulently use protected symbols … in order 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 LOAC Manual (2006) 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).
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]: … other distinctive signs recognized by the law of war”. 
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, p. 68.
Canada
Canada’s LOAC Manual (1999) provides that “the perfidious use of … protective signs recognized by the Geneva Conventions or [Additional Protocol] I” 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 LOAC Manual (1999), in its chapter on “War crimes, individual criminal liability and command responsibility”, identifies as a grave breach of the 1977 Additional Protocol I and a war crime the “perfidious use of … protective signs recognized by the Geneva Conventions or [the 1977 Additional Protocol] I”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1608.2.f.
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 … protective signs recognized under the law of war … [or of] the distinctive signs used for the identification … of civil defence”. 
Colombia, Normas de Derecho Internacional Humanitario, Directiva Permanente No. 017, Ministerio de Defensa Nacional, 17 August 1993, Section III(D).
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.” 
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 46.
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.” 
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 states: “It is forbidden to feign a protected status by inviting the confidence of the enemy (abuse of distinctive signs and signals …).” 
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.
It 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 Manual (2001) states: “Using a protective sign to deceive the enemy and reach an operational goal constitutes an act of perfidy.” 
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. 62.
It further provides: “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, p. 118.
Germany
Germany’s Military Manual (1992) provides: “Grave breaches of international humanitarian law are in particular: … the perfidious … use of recognized protective signs.” 
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, § 1209.
Greece
The Hellenic Navy’s International Law Manual (1995) provides that ”the misuse of … the protective signs for cultural objects” constitutes perfidy. 
Greece, International Law Manual, Hellenic Navy General Staff, Directorate A2, Division IV, 1995, Chapter 5, § 4.
Hungary
Hungary’s Military Manual (1992) states that the “perfidious use of distinctive protective signs” is a grave breach 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) “prohibits 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.
Italy
Italy’s IHL Manual (1991) provides that grave breaches of international conventions and protocols, among which “the perfidious use … of symbols of international protection” 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.
Protective emblems are used for:
-Medical personnel, equipment and facilities, and medical and military religious support personnel; …
-Civil Defence personnel, equipment and facilities;
-Cultural objects and the personnel responsible for their care;
-Works and installations containing dangerous forces;
-Hospital and safety zones;
-Parlementaires.  
Italy, Manuale del Combattente, SME 1000/A/2, Stato Maggiore Esercito/Reparto Impiego delle Forze, Ufficio Dottrina, Addestramento e Regolamenti, 1998, § 244.
[emphasis in original]
New Zealand
New Zealand’s Military Manual (1992) provides that “the perfidious use of … protective signs recognised by the [1949 Geneva] Conventions or [the 1977 Additional Protocol I]” 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).
Peru
Peru’s IHL Manual (2004) states that the “perfidious use of … other recognized protective emblems” 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 … other recognized protective emblems (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).
Peru
Peru’s IHL and Human Rights Manual (2010) states that the “perfidious use of … recognized protective emblems” 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 … 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.
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 y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 156, p. 339.
South Africa
South Africa’s LOAC Manual (1996) regards the misuse of symbols of protection (such as those of civil defence, cultural property and installations containing dangerous forces) as perfidious and as constituting a grave breach of the law of war and a war crime. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, §§ 34(c) 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 … misuse any of the other symbols of protection (discussed above) [i.e., the symbols for civil defence facilities, for cultural objects, and for works and installations containing dangerous forces].” 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, §§ 56(c) and 43–45.
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, civil defence, cultural objects, works and installations containing dangerous forces, the white flag (flag of truce) and other internationally recognised signs and signals, such as ad hoc signs for demilitarised zones and non-defended localities or ad hoc signals for civil defence. ([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:
5.1 War Crimes and Grave Breaches of the LOAC [law of armed conflict]
- [1977] Additional Protocol I article 85 provides further examples of grave breaches, in that it stipulates that the following 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, pp. 236–237.
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.” 
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 adds that it is a grave breach and a war crime “to make a perfidious use … of … recognized protective signs”. 
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) states that it is a war crime to make “[deliberate] misuse of … recognized protective emblems ([an] 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) states: “Abuse of international emergency signals with perfidious intent may also be viewed as an example of perfidy.” 
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) considers the “perfidious use of … distinctive signs recognized by the [1949 Geneva] Conventions or [the 1977 Additional Protocol I]”, as 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).
Switzerland
Switzerland’s Regulation on Ten Basic Rules for the Protection of Cultural Property (2013) states:
Rule No. 2 Protection symbol
Any inappropriate use of cultural protection symbols, e.g. for the purpose of deceiving an opponent or protecting military targets, is prohibited (malice). 
Switzerland, Ten Basic Rules for the Protection of Cultural Property, Regulation 51.00705e, issued on the basis of Article 10 of the Ordinance on the Organization of the Federal Department of Defence, Civil Protection and Sports of 7 March 2003, signed on 21 March 2013, entry into force on 1 July 2013, Rule No. 2.
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 LOAC Manual (2004) states in its chapter on enforcement of the law of armed conflict:
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 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.” 
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.” 
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.
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.
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 sign of civil defence;
- The sign for the protection of cultural property;
- The signs for dams, dykes and stations for the generation of nuclear energy.
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.
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.
No data.
No data.
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts
According to the report of the Working Group to Committee III of the CDDH, Article 37 of the 1977 Additional Protocol I “limit[s] itself to a brief list of particularly clear examples [of perfidious acts]. Examples that were debatable or involved borderline cases were avoided.” 
CDDH, Official Records, Vol. XV, CDDH/III/338, 21 April–11 June 1976, p. 426.
No data.
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; … [of] other protected signs recognized by the law of war; … [and of] distinctive signals used for identification of medical service and civil defence” 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.
ICRC
In a working paper on war crimes submitted in 1997 to the Preparatory Committee for the Establishment of an International Criminal Court, the ICRC included “the perfidious use of the … protective signs and signals recognized by international humanitarian law”, when committed in an international armed conflict, in its list of war crimes to be subject to the jurisdiction of the Court. 
ICRC, Working paper on war crimes submitted to the Preparatory Committee for the Establishment of an International Criminal Court, New York, 14 February 1997, § 1(b)(vi).
No data.