Practice Relating to Rule 65. Perfidy
Additional Protocol I
Article 37(1) of the 1977 Additional Protocol I provides:
Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with the intent to betray that confidence, shall constitute perfidy.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 37(1). Article 37 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 103.
Additional Protocol II (draft)
Article 21(1) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided: “Acts inviting the confidence of the adversary with intent to betray that confidence are deemed to constitute perfidy.”
CDDH, Official Records, Vol. I, Part Three, Draft Additional Protocols, June 1973, p. 39.
However, this proposal was deleted from the 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.
Lieber Code
Article 15 of the 1863 Lieber Code provides:
Military necessity admits … of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 15.
Lieber Code
Article 16 of the 1863 Lieber Code provides: “Military necessity … admits of deception, but disclaims acts of perfidy.”
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 16.
Oxford Manual
Article 4 of the 1880 Oxford Manual states that belligerents “are to abstain especially … from all perfidious … acts”.
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 4.
Oxford Manual of Naval War
Article 15 of the 1913 Oxford Manual of Naval War states: “Methods … which involve treachery are forbidden.”
The Laws of Naval War Governing the Relations between Belligerents, adopted by the Institute of International Law, Oxford, 9 August 1913, Article 15.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 37 of the 1977 Additional Protocol I.
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 37 of the 1977 Additional Protocol I.
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
San Remo Manual
Paragraph 111 of the 1994 San Remo Manual states:
Perfidy is prohibited. Acts inviting the confidence of an adversary to lead it to believe that it is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, constitute perfidy.
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.
Argentina
Argentina’s Law of War Manual (1969) provides that “the use of ruses and stratagems of war shall be legitimate as long as they do not imply the recourse to treason or to perfidy”, which are violations of the principle of good faith.
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 1.017.
Argentina
Argentina’s Law of War Manual (1989) states:
Those acts are perfidious, which, relying on the good faith of an adversary with the intention to betray him, lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law …
The prohibition of employing perfidious methods does not include stratagems.
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.05(2) and (3).
Australia
Australia’s Commanders’ Guide (1994) provides:
Acts which constitute perfidy are those inviting the confidence of an adversary, leading him to believe that he is entitled or obliged to accord protection under the rules of international law, with an intent to betray that confidence. Perfidious conduct is outlawed by LOAC and therefore, either a person who engages or a commander who orders or acquiesces in perfidious conduct may be prosecuted.
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 502; see also § 826 (naval warfare) and § 902 (land warfare).
Australia
Australia’s Defence Force Manual (1994) states:
Perfidy is forbidden. Acts which constitute perfidy are those inviting the confidence of an adversary, thus leading that adversary to believe that there is an entitlement, or an obligation, to accord protection provided under LOAC, with an intent to betray that confidence.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 703.
Australia
Australia’s LOAC Manual (2006) states:
Perfidy is forbidden. Acts which constitute perfidy are those inviting the confidence of an adversary, thus leading that adversary to believe that there is an entitlement, or an obligation, to accord protection provided under the LOAC, with an intent to betray that confidence.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.3.
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: “Perfidious acts are acts which abuse the confidence of the adversary so that he thinks he is facing a friend or a situation protected by the law of war.”
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 Officers (1994) provides that acts of perfidy are prohibited. It describes perfidy as “ruses aimed at neutralizing the enemy (capturing, injuring or killing him) by leading him to believe that he has an obligation to respect a rule of humanitarian law”.
Belgium, Droit de la Guerre, Manuel d’Instruction pour Officiers, Etat-Major Général, Division Opérations, 1994, Part I, Title II, p. 34.
Belgium
Belgium’s Teaching Manual for Soldiers defines perfidy as “any act intended to deceive or abuse the enemy’s confidence by inviting him to afford humanitarian protection and to respect a humanitarian rule”.
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, footnote (1).
Benin
Benin’s Military Manual (1995) states: “It is prohibited to use perfidy.” It adds: “Perfidy … consists of committing a hostile act under the cover of a legal protection.”
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule III, p. 13.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “[p]erfidy consists of committing a hostile act under the cover of legal protection”.
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. 32.
The Regulations also states that “[p]rohibited methods of combat … [include] perfidy”.
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 53; see also Part I bis, p. 2.
Cameroon
Cameroon’s Instructor’s Manual (1992) states: “Perfidy is condemned … by the Law of War.”
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.
The manual describes perfidy as “claiming an international protection with an intent to betray the enemy”.
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. 30, § 131 and p. 89, § 222.
The manual also provides the same definition of perfidy as that contained in Article 37(1) of the 1977 Additional Protocol I.
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. 63, § 234.
Cameroon
Cameroon’s Instructor’s Manual (2006) provides that “perfidy is … prohibited by the law of armed conflict”.
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. 323.
The manual adds:
Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 183, § 494.A; see also . p. 103, § 371 and p. 147, § 431.
Canada
Canada’s LOAC Manual (1999) states:
Acts inviting the confidence of adversaries and leading them to believe that they are entitled to protection or are obliged to grant protection under the LOAC, with intent to betray that confidence, constitute perfidy. In other words, perfidy consists of committing a hostile act under the cover of a legal protection.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 8 (land warfare), p. 7-2, § 16 (air warfare) and pp. 8-10 and 8-11, § 80 (naval warfare).
[emphasis in original]Canada
Canada’s Code of Conduct (2001) provides: “Perfidy is a war crime.”
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 that the concept of chivalry “refers to the conduct of armed conflict in accordance with certain recognized formalities and courtesies”. It adds that “the concept of chivalry is reflected in specific prohibitions such as those against dishonourable or treacherous conduct and against misuse of enemy flags or flags of truce.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 202.7.
In its chapters on land warfare, air warfare and naval warfare, the manual provides:
It is prohibited to kill, injure or capture adversaries by resort to perfidy. Acts inviting the confidence of adversaries and leading them to believe that they are entitled to protection or are obliged to grant protection under the LOAC, with intent to betray that confidence, constitute perfidy. In other words, perfidy consists of committing a hostile act under the cover of a legal protection.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 603.1 (land warfare), 706.1 (air warfare) and 857.1 (naval warfare).
[emphasis in original]Canada
Rule 10 of Canada’s Code of Conduct (2005) states: “Perfidy is a war crime.”
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 10, § 10.
In the lesson plan for that rule, perfidy is defined as:
Acts inviting the confidence of adversaries and leading them to believe that they are entitled to protection or are obliged to grant protection under the Law of Armed Conflict, with intent to betray that confidence, constitute perfidy. In other words, perfidy consists of committing a hostile act under the cover of a legal protection (e.g., firing on a member of an opposing force who comes forward under the protection of a white flag).
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Chapter 3, Lesson Plan for Rule 10, TP6.
[emphasis in original]Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police): “Perfidy, in contrast [to a ruse of war], means committing a hostile act under the cover of legal protection.”
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter III, Section 1.
Colombia
Under Colombia’s Instructors’ Manual (1999), the instructor must explain what perfidy is, i.e., “conduct which is prohibited by International Humanitarian Law”.
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 31.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
The principle of limitation determines permitted means and prohibited means.
…
- What are the prohibited means and methods of warfare?
…
- perfidy.
NB:
Perfidy is different from a ruse of war and is condemned by the law of war.
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. 15–16.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
II.1. Ruses of war
… Ruses of war are permitted. …
… On the other hand, 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 of making him believe that he is entitled to receive, or has the obligation to give, protection provided by the rules of IHL.
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, p. 41.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual further provides:
I.2. Unlawful tactics
I.2.1. Perfidy
It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary and leading him to believe that he is entitled to, or is obliged to accord, protection under the LOAC, with intent to betray that confidence, constitute perfidy. In other words, perfidy consists in acts of hostility under the cover of legitimate protection.
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 48.
Croatia
Croatia’s LOAC Compendium (1991) lists perfidy as a prohibited method of warfare.
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 40.
Croatia
Croatia’s Commanders’ Manual (1992) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy.”
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:
The use of unlawful deceptions is called “perfidy”. Acts of perfidy are deceptions designed to invite the confidence of the enemy to lead him to believe that he is entitled to, or is obliged to accord, protected status under the law of armed conflict, with the intent to betray that confidence.
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 12.1.2.
France
France’s LOAC Summary Note (1992) prohibits perfidy. It does not define “perfidy” as such, but states: “It is forbidden to feign a protected status to invite the confidence of the enemy.”
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.
France
France’s LOAC Teaching Note (2000) prohibits the recourse to perfidy.
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:
Contrary to ruses of war, treachery is prohibited by the law of armed conflicts when it leads to the use of perfidious means, i.e. inviting the good faith of the adversary to lead him to believe that he is entitled to receive, or the obligation to accord, the protection provided for by the law of armed conflict.
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. 123.
The manual considers that perfidy is a prohibited method of warfare.
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. 85.
It also incorporates the definition of perfidy contained in Article 37 of the 1977 Additional Protocol I. 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. 123; see also p. 93.
The manual also states: “There are two elements which constitute perfidy: a fraudulent intention to kill, injure or capture an enemy, and a will to invite his good faith. When a perfidious act causes the death or serious physical injury to the adversary, it 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. 94; see also p. 85.
Germany
Germany’s Soldiers’ Manual (1991) defines perfidious acts as those “by which the adversary is induced to believe that there is a situation affording protection under public international law, so that he may be attacked by surprise”.
Germany, Taschenkarte, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, Bearbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, Zentrum Innere Führung, June 1991, p. 2.
Germany
Germany’s Military Manual (1992) provides: “Perfidy is prohibited. The term ‘perfidy’ refers to acts misleading the adverse party to believe that there is a situation affording protection under 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 Konflikten – Handbuch, August 1992, § 472; see also § 1018 (naval warfare).
Germany
Germany’s Soldiers’ Manual (2006) states that perfidious acts are those “by which the adversary is induced to believe that there is a situation affording protection under public international law, so that he may be attacked by surprise”.
Germany, Druckschrift Einsatz Nr. 03, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, Erarbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, p. 2.
Greece
The Hellenic Navy’s International Law Manual (1995) provides:
Acts designed to lead the adversary to believe that he is obliged to adhere to and respect certain rights of the enemy protected by international law, in order to exploit and take advantage of the confidence of the adversary, constitute perfidy.
Greece, International Law Manual, Hellenic Navy General Staff, Directorate A2, Division IV, 1995, Chapter 5, § 4.
Hungary
Hungary’s Military Manual (1992) considers perfidy as a “prohibited method” of warfare.
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 64.
The manual states that perfidy is “to falsely claim protected status, thereby inviting the confidence of the enemy”.
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 63.
Israel
Israel’s Manual on the Laws of War (1998) states:
The distinction between stratagem (which is allowed) and perfidious or treacherous means is that the latter are defined as acts designed to cause the enemy to think that it is entitled to the protection extended by the law of war, or to create a situation in which the enemy is obliged to trust the adversary with the intent of betraying that trust.
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 56.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
The distinction between trickery (which is permitted) and betrayals of trust or treachery is that the latter are defined as acts designed to cause the enemy to think that it is entitled to the protection of the rules of war or to create a situation in which it is obliged to put its trust in the opposing side through the intention to betray such trust.
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 on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s LOAC Elementary Rules Manual (1991) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy.”
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 46.
Kenya
Kenya’s LOAC Manual (1997) defines perfidy as “tricking an enemy into believing that he is entitled to, or is required to be given, protection under international law, with intent to betray that confidence”.
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 3, p. 7.
Madagascar
Madagascar’s Military Manual (1994) provides: “It is prohibited to feign a protected status thereby inviting the confidence of the enemy.”
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 6-O, § 14.
Mexico
Mexico’s Army and Air Force Manual (2009) states:
The underlying idea of this body of law [i.e. IHL] is to humanize war. The three main principles established to this end are:
…
C. means of warfare involving perfidy, that is, those that are contrary to military honour, are prohibited.
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 372(C).
The manual also states: “It is prohibited to: … kill or wound by means of treachery.”
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 389(A).
Netherlands
The Military Manual (1993) of the Netherlands provides:
Treacherous behaviour (also known as perfidy) is … prohibited … Treacherous behaviour consists of acts which are intended to deceive the enemy in order for him to believe that he is faced with a situation which is protected by the humanitarian law of war … Treacherous means misusing the protection given by the law of war.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, pp. IV-1 and IV-2.
Netherlands
Under the Military Handbook (1995) of the Netherlands, “treachery means misusing the protection provided by the law of war”.
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-36.
According to the Handbook, it is a prohibited method of warfare “to perform treacherous acts”.
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-40.
Netherlands
The Military Manual (2005) of the Netherlands lists “honesty and good faith” as one of five “generally accepted principles of the humanitarian law of war”.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 0221 and 0223; see also § 0405, p. 39 and § 1028.
The manual prohibits “[t]reacherous action” and “[a]ction in breach of good faith”.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, p. 34.
The manual further states:
There is a narrow borderline between perfidy and ruses of war. Acts of treachery (also called perfidy) are, however, forbidden. Ruses of war may be used. The exact wording of the rule is that it is prohibited to kill, injure or capture an adversary by resort to perfidy. An act of perfidy takes place when an adversary is led to believe that he is protected under the humanitarian law of war. Put more simply, it is forbidden to kill or wound an enemy by treachery. Perfidy also means misuse of the protection conferred by the humanitarian law of war, for example misuse of the emblem of the Red Cross.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0413.
In its chapter on non-international armed conflict, the manual states: “Perfidious action is prohibited.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1042.
In its chapter on peace operations, the manual states that the use of methods and means which “violate the principles of humanitarian treatment or of honesty and good faith” must be avoided.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1216.
In the same chapter, the manual further provides:
The principle of honesty and good faith holds an important place in peace operations. In army legal literature, this principle can be traced back to the fundamental principles of peace operations, namely transparency, impartiality and mutual respect. Methods such as perfidious action … are prohibited.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1217.
New Zealand
New Zealand’s Military Manual (1992) provides:
Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with the intent to betray that confidence, shall constitute perfidy … The definition of perfidy codifies customary law.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 502(5), including footnote 2 (land warfare); see also § 713(2) (naval warfare) and § 611(2) (air warfare).
Nigeria
Nigeria’s Military Manual (1994) states:
A commander in his desire to fulfil his mission shall not mask his intentions and action from the enemy so as to induce the enemy to react in a manner prejudicial to his interests. Thus, to be consistent with the law of war, deceptions shall follow the distinction between permitted ruses and prohibited perjury [perfidy].
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 42.
Nigeria
Nigeria’s Manual on the Laws of War provides that stratagems and ruses of war “are permissible provided they do not involve treachery”.
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 14.
Peru
Peru’s IHL Manual (2004) states that “a distinction must be made between ruses of war (permitted) and perfidy (prohibited)”.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 27.e.(1).
The manual further states: “Perfidy is a hostile act carried out under the cover of legal protection.”
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 27.e.(9).
The manual defines the term “perfidy” as: “Acts inviting the confidence of an adversary to lead it to believe that it is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.”
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 135.c.
The manual defines the term “treachery” as: “The term used in the law of armed conflict to forbid killing or wounding individuals belonging to the hostile nation or army by betraying the confidence of an adversary.”
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 135.c.
In the context of air warfare, the manual states:
Perfidy is always illegal.
Perfidy is prohibited without any kind of qualification identifying it with any particular type of warfare. In other words, it is prohibited to engage in hostile acts, regardless of the military advantage they may secure, that are designed to betray the enemy’s good will.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, Annex 9, Glossary of Terms.
Peru
Peru’s IHL and Human Rights Manual (2010) states that “a distinction must be made between ruses of war (permitted) and perfidy (prohibited).”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 28(e)(1), p. 238.
The manual further states: “Perfidy is a hostile act carried out under the cover of legal protection.”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 28(e)(2), p. 239.
In its Glossary of Terms, the manual defines “perfidy” as: “Acts inviting the confidence of an adversary to lead it to believe that it is entitled to, or is obliged to accord, protection under the rules of international law.”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, p. 411; see also § 126(c), p. 319.
In its Glossary of Terms, the manual defines “treachery” as: “The term used in the law of armed conflict to forbid killing or wounding individuals belonging to the hostile nation or army by betraying the confidence of an adversary.”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, p. 416.
In the context of air warfare, the manual states:
Perfidy is always illegal.
Perfidy is prohibited without any kind of qualification identifying it with any particular type of warfare. In other words, it is prohibited to engage in hostile acts, regardless of the military advantage they may secure, that are designed to betray the enemy’s good will.
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 156(b), p. 339.
Republic of Korea
The Republic of Korea’s Military Law Manual (1996) provides that resort to perfidy is prohibited.
Republic of Korea, Military Law Manual, 1996, p. 88.
Republic of Korea
The Republic of Korea’s Operational Law Manual (1996) states that perfidy against humanitarian principles is not permitted.
Republic of Korea, Operational Law Manual, 1996, p. 135.
Russian Federation
The Russian Federation’s Military Manual (1990) considers that perfidy is a prohibited method of warfare.
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 5(e).
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states: “The prohibited methods of warfare include … resorting to perfidy.”
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 7.
South Africa
South Africa’s LOAC Manual (1996) provides: “It is not permissible to attempt to deceive the enemy by abusing the LOAC or misusing the various protections it affords … Such actions are referred to as ‘perfidy’ and constitute grave breaches of the LOAC.”
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).
South Africa
South Africa’s Medical Services Military Manual prohibits perfidy.
South Africa, Medical Services Military Manual – Humanitarian Law, South African Medical Service Academy in Voortrekkerhoogte, s.d, § 39.
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. … Such actions are referred to as ‘perfidy’ and constitute grave breaches of the LOAC.”
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 56(c).
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Deceptions in War
In order to fulfill his mission, it is sometimes necessary for a commander to mask his intentions, his forces or his actions from the enemy. To induce the enemy to react in a manner detrimental to his interests.
- The LOAC [law of armed conflict] makes a distinction between permitted ruses of war and prohibited perfidious actions. (Additional Protocol article 37.)
…
- Perfidy
- Perfidy is the commission of a hostile act while hiding behind the cover of the legal protection given by the LOAC, ie the fraudulent use of LOAC protection.
- It is prohibited to conduct operations in a perfidious manner.
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. 185–186.
Spain
Spain’s Field Regulations (1882) provides that perfidy is not permitted.
Spain, El Reglamento para el Servicio de Campaña, 4 January 1882, § 862.
Spain
Spain’s LOAC Manual (1996) provides the same definition of perfidy as the one contained in Article 37(1) of the 1977 Additional Protocol I.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 3.3.b.(1); see also § 7.3.c.
The manual further states: “Perfidy consists in committing a hostile act under the cover of a legal protection.”
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, § 5.3.c.
The manual also states: “It is prohibited to feign a protected status by inviting the confidence of the enemy.”
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).
Spain
Spain’s LOAC Manual (2007) provides the same definition of perfidy as that contained in Article 37(1) of the 1977 Additional Protocol I.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.3.b.(3); see also, §§ 3.3.b.(1) and 7.3.c.
The manual further states that perfidy “is defined as a hostile act committed under the cover of legal protection”.
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, § 5.3.c.
The manual also states with regard to combatants who commit acts of perfidy:
Combatants who employ methods of warfare that involve pretending to be a civilian or wearing signs, emblems or uniforms that protect them from attacks in order to approach their objective without danger are considered war criminals, regardless of whether they are entitled to prisoner-of-war status or not, and must be tried under criminal law if captured.
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, § 7.3.a.(8).(e).
Sweden
Sweden’s IHL Manual (1991) considers that the prohibition of perfidy as contained in Article 37 of the 1977 Additional Protocol I is part of customary international law.
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3, p. 18.
The manual states:
Sweden and several other countries wished the [prohibition of perfidy] to be inserted in Additional Protocol II as well, since perfidy is probably equally common in internal conflicts. The majority were against this, however, the main reason being that, in conflicts of this type, particular difficulties may arise in determining exactly what may be considered perfidy.
The concept of perfidy, or perfidious conduct which is a more adequate expression, is defined as acts inviting the confidence of an adversary giving the acting party a legally protected status. This protection is abused in order to kill, injure or capture the adversary’s soldiers. Perfidy thus means that one party deliberately and on false grounds invites the confidence of the other in order then to betray this confidence by acts of violence. It should be added that perfidy, as defined in Article 37 [of the 1977 Additional Protocol I], refers to acts against persons, but does not include sabotage or the destruction of property …
Only where protected status is employed for killing, injuring or capturing the adversary is the act considered as perfidy …
Accusations of perfidy are always judged to be extremely grave, since a crime against Article 37 [of the 1977 Additional Protocol I] shall according to the bases of Additional Protocol I be viewed as a grave breach 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, pp. 28–30.
Switzerland
Switzerland’s Basic Military Manual (1987) states: “Ruses of war based on treachery and perfidy are prohibited.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 39(1).
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
15.2 Prohibited methods of warfare
…
223 Misuse of a distinctive sign and the feigning of protected status are prohibited in any place and at any time. Examples: … using the white flag to feign surrender and then opening fire on the approaching enemy … .
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 223.
Togo
Togo’s Military Manual (1996) states: “It is prohibited to use perfidy.” The manual adds: “Perfidy … consists of committing a hostile act under the cover of a legal protection.”
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule III, p. 13.
Ukraine
Ukraine’s IHL Manual (2004) states:
1.2.44. “Perfidy” means hostile actions under cover of the right to protection in order to achieve military advantage.
…
1.3.2. The following methods of warfare shall be prohibited:
…
- deceit of an adversary by means of perfidy.
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, §§ 1.2.44 and 1.3.2.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states:
Good faith, as expressed in the observance of promises, is essential in war, for without it hostilities could not be terminated with any degree of safety short of the total destruction of one of the contending parties.
…
The borderline between legitimate ruses and forbidden treachery has varied at different times, and it is difficult to lay down hard and fast rules in the matter. Many of the doubtful cases, however, which arose at a time when, from the nature of their weapons, troops could only engage at close range, can now seldom or never occur.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, §§ 308 and 310.
The manual also notes, in connection with the requirements to be granted the status of combatant, that irregular troops “should have been warned against the employment of treachery”.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 95.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states that treachery “means tricking an enemy into believing that he is entitled to, or required to give, protection under international law, with intent to betray that confidence”.
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); see also Annex A, p. 46, § 4.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
Perfidy is defined as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.9.1.
In its chapter on maritime warfare, the manual states:
Acts inviting the confidence of an adversary to lead it to believe that it is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, constitute perfidy.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 13.83.
With regard to internal armed conflict, the manual states:
The definition of perfidy in paragraph 5.9.1 [relating to international armed conflicts, quoted above] may also be used as guidance as to the meaning of “treachery” in internal armed conflicts.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.12.1.
United States of America
The US Field Manual (1956) states:
The line of demarcation between legitimate ruses and forbidden acts of perfidy is sometimes indistinct … It would be an improper practice to secure an advantage of the enemy by deliberate lying or misleading conduct which involves a breach of faith, or when there is a moral obligation to speak the truth …
Treacherous or perfidious conduct in war is forbidden because it destroys the basis for a restoration of peace short of the complete annihilation of one belligerent by the other.
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, § 50.
United States of America
The US Air Force Pamphlet (1976) states:
Perfidy or treachery involves acts inviting the confidence of the adversary that he is entitled to protection or is obliged to accord protection under international law, combined with intent to betray that confidence … Like ruses perfidy involves simulation, but it aims at falsely creating a situation in which the adversary, under international law, feels obliged to take action or abstain from taking action, or because of protection under international law neglects to take precautions which are otherwise necessary … In addition, perfidy tends to destroy the basis for restoration of peace and causes the conflict to degenerate into savagery.
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).
United States of America
The US Instructor’s Guide (1985) notes: “The law of war prohibits treacherous acts.”
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 8.
United States of America
The US Naval Handbook (1995) states:
The use of unlawful deceptions is called “perfidy”. Acts of perfidy are deceptions designed to invite the confidence of the enemy to lead him to believe that he is entitled to, or is obliged to accord, protected status under the law of armed conflict, with the intent to betray that confidence.
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), § 12.1.2.
United States of America
The US Naval Handbook (2007) states:
The use of unlawful deceptions is called “perfidy”. Acts of perfidy are deceptions designed to invite the confidence of the enemy to lead him to believe that he is entitled to, or is obliged to accord, protected status under the law of armed conflict, with the intent to betray that confidence.
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, § 12.1.2.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) prohibits perfidy and defines it as “confidence-betraying ruses”.
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, §§ 104 and 108.
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).
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) identifies the following as a serious violation of the laws and customs of war applicable in international armed conflicts: “Killing or wounding treacherously individuals belonging to a hostile nation or army”.
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 13(2)(L).
With regard to non-international armed conflict, the Law identifies “killing or wounding treacherously a combatant adversary” as a serious violation of the laws and customs of war.
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 13(4)(I).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 37(1), is a punishable offence.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Kyrgyzstan
Kyrgyzstan’s Emblem Law (2000) provides:
Recourse to perfidy means inviting, with intent to deceive him, the good faith of the adversary to lead him to believe that he was entitled to receive, or obliged to accord, the protection provided for under the rules of international humanitarian law.
Kyrgyzstan, Emblem Law, 2000, Article 10.
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).
Republic of Moldova
The Republic of Moldova’s Emblem Law (1999) defines “perfidious use” as “acts inviting the confidence of an adversary, with intent to betray it, to lead him to believe that he was entitled to, or was obliged to accord, protection provided for under the rules of international humanitarian law”.
Republic of Moldova, Emblem Law, 1999, Article 17(2).
Somalia
Somalia’s Military Criminal Code (1963) states:
Anyone who, in violation of the law and international agreements, treacherously uses violence against a person belonging to the enemy State, shall be punished by imprisonment for 1 to 15 years, if the act has resulted in personal harm, and by life imprisonment if the act has resulted in death.
Somalia, Military Criminal Code, 1963, Article 361.
Senegal
Senegal’s Law on the Utilization and Protection of the Red Cross and Red Crescent Emblems (2005) states:
Resorting to perfidy means appealing, with the intention to mislead, to the good faith of the adversary in order to make him believe that he has the right to receive or the obligation to accord the protection envisaged by the rules of international humanitarian law.
Senegal, Law on the Utilization and Protection of the Red Cross and Red Crescent Emblems, 2005, Article 11.
Germany
In 2010, in the Chechen Refugee case, Germany’s Federal Administrative Court was called upon to decide whether a Russian refugee claimant from Chechnya had to be excluded from refugee protection because there were serious reasons for considering that he had committed a war crime in Chechnya in 2002 by killing two Russian soldiers and taking a Russian officer hostage. The Court stated: “In some cases, unlawful perfidy and lawful ruses of war are difficult to distinguish”.
Germany, Federal Administrative Court, Chechen Refugee case, Judgment, 16 February 2010, § 37.
Israel
In its judgment in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
In general, combatants and military objectives are legitimate targets for military attack. Their lives and bodies are endangered by the combat. They can be killed and wounded. However, not every act of combat against them is permissible, and not every military means is permissible. Thus, for example, they can be shot and killed. However, “treacherous killing” and “perfidy” are forbidden (see DINSTEIN, at p. 198).
Israel, High Court of Justice, Public Committee against Torture in Israel case, Judgment, 14 December 2006, § 23.
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.
Algeria
During the Algerian war of independence, the use by Algerian combatants of perfidious methods of warfare was prohibited. Perfidy was understood to mean methods that aggravated suffering without having a direct effect on the issue of the struggle. The Report on the Practice of Algeria notes, however, that there were instances in which acts considered to be perfidious were committed, but it concludes that such acts were rare and that they did not affect a general line of conduct of proscribing perfidy.
Report on the Practice of Algeria, 1997, Chapter 2.4, referring to El Moudjahid, Vol. 1, p. 16.
Chile
At the CDDH, Chile stated that it had abstained from voting on draft Article 21 of the 1977 Additional Protocol II (which was dropped in the final text) because it found the wording too vague. However, it agreed that the prohibition of perfidy as established in the 1977 Additional Protocol I should also be included in the protocol relative to non-international conflicts.
Chile, Statement at the CDDH, Official Records, Vol. XV, CDDH/III/SR.59, 10 May 1977, p. 217, § 47.
Colombia
The Report on the Practice of Colombia refers to a draft internal working paper in which the Colombian Government stated that perfidy was prohibited under IHL.
Report on the Practice of Colombia, 1998, Chapter 4.1, referring to Presidential Council, Proposal of the Government to the Coordinator Guerrillerra Simón Bolívar to humanise war, Draft Internal Working Paper, Part entitled “El Derecho Internacional Humanitario”, § 5.
Iraq
According to the Report on the Practice of Iraq, perfidy and treachery are absolutely prohibited.
Report on the Practice of Iraq, 1998, Chapter 2.4.
In the reply by the Iraqi Ministry of Defence to a questionnaire, mentioned in the report, reference is made to Article 37 of the 1977 Additional Protocol I. Report on the Practice of Iraq, 1998, Reply by the Ministry of Defence to a questionnaire, July 1997, Chapter 2.4.
Peru
At the CDDH, Peru deplored the elimination of numerous articles and paragraphs in the final version of the 1977 Additional Protocol II, especially the one relating to the prohibition of perfidy.
Peru, Statement at the CDDH, Official Records, Vol. VII, CDDH/SR.56, 8 June 1977, p. 226, § 161.
Philippines
The Report on the Practice of the Philippines notes that officers of the Philippine armed forces make the distinction between ruses of war and acts of perfidy, adding that US military manuals are usually followed.
Report on the Practice of the Philippines, 1997, Interview with a naval officer, 5 March 1997, Chapter 2.4.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated: “The Government forces are also bound to respect customary IHL rules relating to the prohibited methods and means of warfare including … perfidy”.
Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, § 76.
Switzerland
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated: “International humanitarian law also limits the conduct of military operations permissible under international law. … Certain methods such as perfidiousness … are excluded.”
Switzerland, Report by the Swiss Federal Council on Private Security and Military Companies, 2 December 2005, section 5.3.1, pp. 45–46.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states:
Means and methods of warfare
Even in war not everything is allowed. Various means and methods are prohibited, including Perfidy, …
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 and feigning incapacitation on the grounds of injuries or sickness.
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, pp. 29 and 34.
United Kingdom of Great Britain and Northern Ireland
A training video on IHL produced by the UK Ministry of Defence describes as “complicated” the difference between ruses and treachery.
United Kingdom, Ministry of Defence, Training Video: The Geneva Conventions, 1986, Report on UK Practice, 1997, Chapter 2.4.
United States of America
In 1991, in response to an ICRC memorandum on the applicability of IHL in the Gulf region, the US Department of the Army stated that its practice was consistent with the definition and prohibition of perfidy contained in Article 37 of the 1977 Additional Protocol I.
United States, Letter from the Department of the Army to the legal adviser of the US Army forces deployed in the Gulf region, 11 January 1991, § 8(J), Report on US Practice, 1997, Chapter 2.8.
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:
Perfidy is prohibited by the law of war. Perfidy is defined in Article 37(1) of [the 1977 Additional Protocol I] as:
Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the law [of war], with intent to betray that confidence …
Perfidious acts are prohibited on the basis that perfidy may damage mutual respect for the law of war, may lead to unnecessary escalation of the conflict, may result in the injury or death of enemy forces legitimately attempting to surrender or discharging their humanitarian duties, or may impede the restoration of peace …
However, there does not appear to have been any centrally directed Iraqi policy to carry out acts of perfidy. The fundamental principles of the law of war applied to Coalition and Iraqi forces throughout the war.
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.
Yugoslavia, Socialist Federal Republic of
In 1991, in a document entitled “Examples of violations of the rules of international law committed by the so-called armed forces of Slovenia”, the Ministry of Defence of the Socialist Federal Republic of Yugoslavia included the following example: “Faithless behaviour. Throughout the overall armed conflict members of the so-called armed forces of Slovenia have applied faithless and perfidious behaviour.”
Yugoslavia, Socialist Federal Republic of, Ministry of Defence, Examples of violations of the rules of international law committed by the so-called armed forces of Slovenia, 10 July 1991, § 5.
No data.
No data.
No data.
International Criminal Tribunal for the former Yugoslavia
In the interlocutory appeal in the Tadić case in 1995, the ICTY referred specifically to a case of perfidy to illustrate that general principles of customary international law in areas relating to methods of warfare applicable in international armed conflicts had evolved to be applied in non-international armed conflicts as well.
ICTY, Tadić case, Interlocutory Appeal, 2 October 1995, § 125.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that perfidy consists of “committing a hostile act under the cover of a legal protection”.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 408.
ICRC
At the CE (1972), the ICRC stated, with regard to a certain number of articles, including the article on perfidy, that it was “anxious to maintain the same kind of arrangements with respect to international and to non-international armed conflicts”.
ICRC, Statement at the CE (1972), Report on the Work of the Conference, Vol. I, p. 104, § 2.384.
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 “perfidy”, when committed in an international or a non-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, §§ 2(vi) and 3(xiv).
International Institute of Humanitarian Law
The Rules of International Humanitarian Law Governing the Conduct of Hostilities in Non-international Armed Conflicts, adopted in 1990 by the Council of the International Institute of Humanitarian Law, defines perfidy in the context of non-international armed conflicts as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable to non-international armed conflicts, with intent to betray that confidence”.
International Institute of Humanitarian Law, Rules of International Humanitarian Law Governing the Conduct of Hostilities in Non-international Armed Conflicts, Rule A4, IRRC, No. 278, pp. 390–391.
Hague Regulations (1899)
Article 23(b) of the 1899 Hague Regulations provides: “It is especially prohibited … to kill or wound treacherously individuals belonging to the hostile nation or army.”
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, Article 23(b).
Hague Regulations (1907)
Article 23(b) of the 1907 Hague Regulations provides: “It is especially forbidden … to kill or wound treacherously individuals belonging to the hostile nation or army.”
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 23(b).
Additional Protocol I
Article 37(1) of the 1977 Additional Protocol I provides: “It is prohibited to kill, injure or capture an adversary by resort to perfidy.”
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 37(1). Article 37 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 103.
Additional Protocol II (draft)
Article 21(1) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided: “It is forbidden to kill, injure or capture an adversary by resort to perfidy.”
CDDH, Official Records, Vol. I, Part Three, Draft Additional Protocols, June 1973, p. 39.
This proposal was adopted in Committee III of the CDDH by 21 votes in favour, 15 against and 41 abstentions.
CDDH, Official Records, Vol. XV, CDDH/III/SR.59, 10 May 1977, p. 213, § 20.
Eventually, however, it was deleted by consensus in the plenary.
CDDH, Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 128.
ICC Statute
Under Article 8(2)(b)(xi) of the 1998 ICC Statute, “[k]illing or wounding treacherously individuals belonging to the hostile nation or army” is a war crime in international armed conflicts. Under Article 8(2)(e)(ix), “[k]illing or wounding treacherously a combatant adversary” is a war crime in non-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)(xi) and (e)(ix).
Lieber Code
Article 101 of the 1863 Lieber Code provides: “[T]he common law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dangerous, and it is difficult to guard against them.”
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 101.
Brussels Declaration
Article 13(b) of the 1874 Brussels Declaration prohibits “[m]urder by treachery of individuals belonging to the hostile nation or army”.
Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, Article 13(b).
Oxford Manual
Article 8 of the 1880 Oxford Manual prohibits the making of “treacherous attempts upon the life of an enemy; as, for example, by keeping assassins in pay”.
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 8.
Oxford Manual of Naval War
Article 15 of the 1913 Oxford Manual of Naval War states: “It is forbidden … to kill or wound treacherously individuals belonging to the opposite side.”
The Laws of Naval War Governing the Relations between Belligerents, adopted by the Institute of International Law, Oxford, 9 August 1913, Article 15.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 37 of the 1977 Additional Protocol I.
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 37 of the 1977 Additional Protocol I.
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
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)(xi), “[k]illing or wounding treacherously individuals belonging to the hostile nation or army” is a war crime in international armed conflicts. Under Section 6(1)(e)(ix), “[k]illing or wounding treacherously a combatant adversary” is a war crime in non-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)(xi) and (e)(ix).
Argentina
Argentina’s Law of War Manual (1989) provides: “It is prohibited to employ perfidious methods to kill, injure or capture an adversary.”
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.05(1).
Australia
Australia’s Defence Force Manual (1994) states:
Assassination is the sudden or secret killing by treacherous means of an individual who is not a combatant, by premeditated assault, for political or religious reasons. Assassination is unlawful. In addition, it is prohibited to put a price on the head of an enemy individual. Any offer for an enemy “dead or alive” is forbidden. If prior information of an intended assassination or other act of treachery should reach the party on whose behalf the act is committed, that party should endeavour to prevent its occurrence.
The prohibition against assassination is not to be confused with attacks on individual members of the enemy’s armed forces as those persons are combatants and are legitimate military targets.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, §§ 724 and 725.
Australia
Australia’s Commanders’ Guide (1994) states:
It is generally recognised by the international community that assassination of civilian political figures and issuance of orders that an enemy is to be taken ‘dead or alive’ constitutes treacherous behaviour and is, therefore, proscribed by LOAC.
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 512.
The Guide further states:
Assassination is the killing or wounding of a selected individual behind the line of battle by enemy agents or unlawful combatants, and is prohibited. In addition, the proscription, outlawing, putting a price on the head of an enemy individual or any offer for an enemy “dead or alive” is forbidden. If prior information of an intended assassination or other act of treachery should reach the party on whose behalf the act is to be committed, that party should endeavour to prevent its occurrence.
It is not forbidden to send a detachment of individual members of the armed forces to kill, by sudden attack, members or a member of the enemy armed forces.
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, §§ 919 and 920.
Australia
Australia’s LOAC Manual (2006) states:
7.25 Assassination is the sudden or secret killing by treacherous means of an individual who is not a combatant, by premeditated assault, for political or religious reasons. Assassination is unlawful. In addition, it is prohibited to put a price on the head of an enemy individual. Any offer for an enemy “dead or alive” is forbidden. If prior information of an intended assassination or other act of treachery should reach the party on whose behalf the act is to be committed, that party should endeavour to prevent its occurrence.
7.26 The prohibition against assassination is not to be confused with attacks on individual members of the enemy’s armed forces as those persons are combatants and are legitimate military targets.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 7.25–7.26.
The manual also states: “To demand a cease-fire and then to break it by surprise, or to violate a safe conduct or any other agreement, in order to kill, wound or capture enemy troops would be perfidious.”
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.4.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) provides: “Killing or wounding by treachery is forbidden.”
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. 31.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “It is prohibited to kill, wound or capture an enemy by resort to perfidy.”
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 32; see also Part I bis, p. 41.
Cameroon
Cameroon’s Instructor’s Manual (1992) states that it is prohibited “to kill, wound or capture an adversary by resort to perfidy”.
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 109, § 421.1.
Cameroon
Cameroon’s Instructor’s Manual (2006) states that it is prohibited to “kill, wound or capture an adversary by resort to 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. 256, § 612.
Canada
Canada’s LOAC Manual (1999) states: “It is prohibited to kill, injure or capture adversaries by resort to perfidy.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 8 (land warfare), p. 7-2, § 16 (air warfare) and p. 8-10, § 80 (naval warfare).
The manual further provides that “treacherously killing or wounding any individual belonging to the hostile nation or army” constitutes a war crime.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-3, § 20(b).
The manual also states:
Assassination is prohibited. Assassination means the killing or wounding of a selected non-combatant for a political or religious motive. It is not forbidden, however, to send a detachment or individual members of the armed forces to kill, by sudden attack, a person who is a combatant.
If prior information of an intended assassination should reach the party on whose behalf the act is to be committed, that party should make the utmost effort to prevent its being carried out.
It is forbidden to put a price on the head of an enemy individual or to offer a bounty for an enemy “dead or alive”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-3, §§ 25–27.
Canada
Canada’s LOAC Manual (2001) states in its chapters on land warfare, air warfare and naval warfare:
It is prohibited to kill, injure or capture adversaries by resort to perfidy. Acts inviting the confidence of adversaries and leading them to believe that they are entitled to protection or are obliged to grant protection under the LOAC, with intent to betray that confidence, constitute perfidy. In other words, perfidy consists of committing a hostile act under the cover of a legal protection.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 603.1 (land warfare), 706.1 (air warfare) and 857.1 (naval warfare).
[emphasis in original]In the chapter on land warfare, the manual further states:
1. Assassination is prohibited. Assassination means the killing or wounding of a selected non-combatant for a political or religious motive. It is not forbidden, however, to send a detachment or individual members of the armed forces to kill, by sudden attack, a person who is a combatant.
2. If prior information of an intended assassination should reach the party on whose behalf the act is to be committed, that party should make the utmost effort to prevent its being carried out.
3. It is forbidden to put a price on the head of an enemy individual or to offer a bounty for an enemy “dead or alive.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 612.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states that “treacherously killing or wounding any individual belonging to the hostile nation or army” constitutes a war crime.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1609.2.b.
Chad
Chad’s Instructor’s Manual (2006) states that “killing or wounding an enemy or taking him captive by making use of perfidy” is prohibited and that to do so is 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. 78.
France
France’s LOAC Manual (2001) states: “It is prohibited to injure, kill or capture [an adversary] by resort to perfidy.” This may constitute 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. 47; see also p. 85.
Indonesia
Indonesia’s Military Manual (1982) provides: “It is prohibited to kill or injure the enemy by perfidy.”
Indonesia, The Basics of International Humanitarian Law, Legal Division of the Indonesian Armed Forces, 1982, § 103.
Israel
Referring to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states: “As a basic policy, the IDF [Israel Defense Forces] prohibits the resort to perfidy to kill, injure or capture an adversary.”
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 example of perfidy:
An attempt on the lives of enemy leaders (civilian or military) is forbidden. As a rule, it is forbidden to single out a specific person on the adversary’s side and request his death (whether by dispatching an assassin or by offering an award for his liquidation).
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 57.
Italy
Italy’s IHL Manual (1991) provides that is prohibited to kill or injure an enemy by treachery.
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, § 8(2).
Kenya
Kenya’s LOAC Manual (1997) states: “It is forbidden to kill or [wound] an enemy by treachery.”
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 3, p. 7.
Netherlands
The Military Manual (1993) of the Netherlands states: “The exact formulation of the rule is that it is prohibited to kill, injure or capture an adversary in a treacherous manner.”
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IV-2.
Netherlands
The Military Handbook (1995) of the Netherlands states: “It is prohibited to kill, injure or capture by means of treachery.”
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-36.
Netherlands
The Military Manual (2005) of the Netherlands states:
Honesty and good faith
Acts of war based on treachery or acts in breach of good faith are forbidden.
Example: to behave (moaning and groaning) so as to pass oneself off to a member of the other side as wounded and wishing to surrender, and then suddenly to open fire on the person offering help.
It is, however, permitted to use stratagems.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0230.
The manual further states: “The exact wording of the rule is that it is prohibited to kill, injure or capture an adversary by resort to perfidy.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0413.
In its chapter on non-international armed conflict, the manual states: “Treacherously to kill/injure persons belonging to hostile groups is prohibited.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1042.
New Zealand
New Zealand’s Military Manual (1992) states: “It is prohibited to kill, injure or capture an adversary by resort to perfidy.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, §§ 502(5) (land warfare) and 713(2) (naval warfare).
The manual further states that “the treacherous killing or wounding of any individual belonging to the hostile nation or army” constitutes 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, § 1704(2)(b).
The manual also states:
Assassination, that is, the killing or wounding of a selected individual behind the line of battle by enemy agents or unlawful combatants is prohibited. In addition, the proscription or outlawing or the putting of a price on the head of an enemy individual or any offer for an enemy “dead or alive” is forbidden. If prior information of an intended assassination or other act of treachery should reach the Party on whose behalf the act is to be committed, that Party should endeavour to prevent its being carried out.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 507.
Nigeria
Under Nigeria’s Military Manual (1994), it is forbidden “to kill or wound treacherously individuals belonging to the hostile nation’s army”.
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 39, § 5(l)(ii).
Nigeria
Under Nigeria’s Soldiers’ Code of Conduct it is forbidden “to kill or wound treacherously individuals belonging to the hostile nation or army”.
Nigeria, Code of Conduct for Combatants, “The Soldier’s Rules”, Nigerian Army, undated, § 12(b).
Romania
Romania’s Soldiers’ Manual (1991) prohibits
the killing, wounding or capture of an adversary by acts of perfidy, committed with the intent to deceive his good faith and to make him believe that he is entitled to receive, or has the obligation to accord, the protection provided by the rules of international humanitarian law.
Romania, Manualul Soldatului, Ghid de comportare în luptă, Asociaţia Română de Drept Umanitar (ARDU), 1991, pp. 34 and 35.
Russian Federation
The Russian Federation’s Military Manual (1990) provides that “killing or wounding a person belonging to enemy troops by resort to perfidy” is a prohibited method of warfare.
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 5(a).
Spain
Spain’s LOAC Manual (1996) states: “It is prohibited to kill, injure or capture an adversary by resort to perfidy. Perfidy consists in committing a hostile act under the cover of a legal protection.”
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, § 5.3.c.
Spain
Spain’s LOAC Manual (2007) states that prohibited forms of deception include: “killing, injuring or capturing an adversary by resort to perfidy”.
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, § 5.3.c.
Sweden
Sweden’s IHL Manual (1991) affirms: “Under the provisions of the [1907 Hague Regulations] it is prohibited to kill or injure an enemy by resort to 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, pp. 28 and 29.
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “It is prohibited to kill or injure by treachery individuals belonging to the enemy nation or army.” It also states: “It is not permitted to place a price on the head of an enemy military or civil leader.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 18, including commentary.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “It is expressly forbidden by the [1907 Hague Regulations] to kill or wound by treachery individuals belonging to the opposing State or army.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 311.
The manual also states:
Assassination, the killing or wounding of a selected individual behind the line of battle by enemy agents or partisans, and the killing or wounding by treachery of individuals belonging to the opposing nation or army, are not lawful acts of war. The perpetrator of such an act has to claim to be treated as a combatant, but should be put on trial as a war criminal. If prior information of an intended assassination or other act of treachery should reach the government on whose behalf the act is to be committed, that government should endeavour to prevent its being carried out.
…
It is not forbidden to send a detachment or individual members of the armed forces to kill, by sudden attack, members or a member of the enemy armed forces.
…
In view of the prohibition of assassination, the proscription or outlawing or the putting of a price on the head of an enemy individual or any offer for an enemy “dead or alive” is forbidden.
…
The prohibition extends to offers of rewards for the killing or wounding of all enemies, or of a class of enemy persons, e.g., officers … Offers of rewards for the capture unharmed of enemy personnel generally or of particular enemy personnel would seem to be lawful …
How far do the above rules apply to armed conflicts not of an international character occurring in the territory of a State, e.g., a civil war or large scale armed insurrection? The acts which are prohibited in such conflicts are those set out in common Art. 3 of the 1949 [Geneva] Conventions, see paras. 7 and 8. Para (1) (a) of that article forbids “murder of all kinds” in respect of persons who do not take an active part in the hostilities and those members of armed forces who have laid down their arms or who are hors de combat. If a government or military commander offers rewards for all or individual armed insurgents killed or wounded by the forces engaged in quelling the insurrection, such offers are open to the same objection as those set out above in respect of hostilities between belligerents and are probably unlawful.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 115, including footnote 2, and § 116, including footnote 1.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) provides: “It is forbidden … to kill or wound an enemy by 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); see also Annex A, p. 46, § 4.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “It is prohibited to kill, injure or capture an adversary by resort to perfidy.” United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.9.
The manual further provides: “Persons who kill or wound by resort to perfidy commit war crimes and should be put on trial.”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.9.4; see also § 13.83 (maritime warfare).
With regard to internal armed conflict, the manual states: “It is prohibited to kill or wound by resort to treachery.”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.12.
In its chapter on enforcement of the law of armed conflict, the manual further states:
The Hague Regulations 1907 are now recognized as part of customary law. Those regulations provide that the following acts are “especially forbidden”:
…
b. to kill or wound treacherously individuals belonging to the hostile nation or army.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.27.
United States of America
The US Field Manual (1956) states:
It is especially forbidden to kill or wound treacherously individuals belonging to the hostile nation or army …
[Article 23(b) of the 1907 Hague Regulations] is construed as prohibiting assassination, proscription, or outlawry of an enemy, or putting a price upon an enemy’s head, as well as offering a reward for an enemy “dead or alive”. It does not, however, preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere.
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, § 31.
United States of America
The US Air Force Pamphlet (1976) provides: “It is especially forbidden … to kill or wound treacherously individuals belonging to the hostile nation or army.”
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 8-2.
The Pamphlet also states:
Article 23(b) [of the 1907] Hague Regulations … prohibits the killing or wounding treacherously of individuals belonging to a hostile nation or army, whether they are combatants or civilians. This article has been construed as prohibiting assassination, proscription, or outlawry of an enemy, or putting a price upon an enemy’s head, as well as offering a reward for an enemy “dead or alive”. Obviously, it does not preclude lawful attacks by lawful combatants on individual soldiers or officers of the enemy.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 8-6(d).
United States of America
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
USING TREACHERY OR PERFIDY.
a. Text. “Any person subject to this chapter who, after inviting the confidence or belief of one or more persons that they were entitled to, or obliged to accord, protection under the law of war, intentionally makes use of that confidence or belief in killing, injuring, or capturing such person or persons shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused invited the confidence or belief of one or more persons that they were entitled, or obliged to accord, protection under the law of war;
(2) The accused intended to betray that confidence or belief;
(3) The accused killed, injured or captured one or more persons;
(4) The accused made use of that confidence or belief in killing, injuring or capturing such person or persons; and
(5) The conduct took place in the context of and was associated with armed conflict.
c. Comment.
(1) Ruses of war are legitimate so long as they do not involve treachery or perfidy on the part of the belligerent resorting to them. They are, however, forbidden if they contravene any generally accepted rule.
(2) The line of demarcation between legitimate ruses and forbidden acts of perfidy is sometimes indistinct, but the following examples indicate the correct principles. It would be an improper practice to secure an advantage of the enemy by deliberate lying or misleading conduct which involves a breach of faith, or when there is a moral obligation to speak the truth. For example, it is improper to feign surrender so as to secure an advantage over the opposing belligerent thereby. So similarly, to broadcast to the enemy that an armistice had been agreed upon when such is not the case would be treacherous. On the other hand, it is a perfectly proper ruse to summon a force to surrender on the ground that it is surrounded and thereby induce such surrender with a small force.
(3) Treacherous or perfidious conduct in war is forbidden because it destroys the basis for a restoration of peace short of the complete annihilation of one belligerent by the other.
(4) One may commit an act of treachery or perfidy by, for example, feigning an intent to negotiate under a flag of truce or a surrender or feigning incapacitation by wounds or sickness or feigning a civilian, non-combatant status or feigning a protected status by the use of signs, emblems, or uniforms of the United Nations or a neutral State or a State not party to the conflict.
d. Maximum punishment. Death, if the death of any person occurs as a result of the improper use of the treachery or perfidy. Otherwise, confinement for life.
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(17), pp. IV-13 and IV-14.
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.
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.
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
USING TREACHERY OR PERFIDY.
a. Text. “Any person subject to this chapter who, after inviting the confidence or belief of one or more persons that they were entitled to, or obliged to accord, protection under the law of war, intentionally makes use of that confidence or belief in killing, injuring, or capturing such person or persons shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused invited the confidence or belief of one or more persons that they were entitled, or obliged to accord, protection under the law of war;
(2) The accused intended to betray that confidence or belief;
(3) The accused killed, injured or captured one or more persons;
(4) The accused made use of that confidence or belief in killing, injuring or capturing such person or persons; and
(5) The conduct took place in the context of and was associated with hostilities.
c. Comment.
(1) Ruses of war are legitimate so long as they do not involve treachery or perfidy on the part of the belligerent resorting to them. They are, however, forbidden if they contravene any generally accepted rule.
(2) The line of demarcation between legitimate ruses and forbidden acts of perfidy is sometimes indistinct, but the following examples indicate the correct principles. It would be an improper practice to secure an advantage of the enemy by deliberate lying or misleading conduct which involves a breach of faith, or when there is a moral obligation to speak the truth. For example, it is improper to feign surrender so as to secure an advantage over the opposing belligerent thereby. So similarly, to broadcast to the enemy that an armistice had been agreed upon when such is not the case would be treacherous. On the other hand, it is a perfectly proper ruse to summon a force to surrender on the ground that it is surrounded and thereby induce such surrender with a small force.
(3) Treacherous or perfidious conduct in war is forbidden because it destroys the basis for a restoration of peace short of the complete annihilation of one belligerent by the other.
(4) One may commit an act of treachery or perfidy by, for example, feigning an intent to negotiate under a flag of truce or a surrender or feigning incapacitation by wounds or sickness or feigning a civilian, non-combatant status or feigning a protected status by the use of signs, emblems, or uniforms of the United Nations or a neutral State or a State not party to the conflict.
d. Maximum punishment. Death, if the death of any person occurs as a result of the improper use of the treachery or perfidy. Otherwise, confinement for life.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(17), pp. IV-14 and IV-15.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “It is prohibited to kill or wound members of the enemy armed forces and enemy civilians by means of treachery.”
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 104.
The manual adds that it is prohibited to put a price on someone’s head, whether State or military commander or any other person.
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 106.
Australia
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to serious war crimes that are committed in the course of an international armed conflict:
268.49 War crime – treacherously killing or injuring
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more persons that the perpetrator is entitled to protection, or that the person or persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator kills the person or persons; and
(c) the perpetrator makes use of that confidence or belief in killing the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more persons that the perpetrator is entitled to protection, or that the person or persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator injures the person or persons; and
(c) the perpetrator makes use of that confidence or belief in injuring the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
Australia, Criminal Code Act, 1995, as amended on 1 November 2007, taking into account amendments up to Act No. 177 of 2007, Chapter 8, § 268.49, pp. 333–334.
The Criminal Code Act also states with respect to war crimes that are violations of the laws and customs of war applicable in a non-international armed conflict:
268.90 War crime – treacherously killing or injuring
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more persons that the perpetrator is entitled to protection, or that the person or persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator kills the person or persons; and
(c) the perpetrator makes use of that confidence or belief in killing the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator invites the confidence or belief of one or more persons that the perpetrator is entitled to protection, or that the person or persons are obliged to accord protection to the perpetrator; and
(b) the perpetrator injures the person or persons; and
(c) the perpetrator makes use of that confidence or belief in injuring the person or persons; and
(d) the person or persons belong to an adverse party; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
Australia, Criminal Code Act, 1995, as amended on 1 November 2007, taking into account amendments up to Act No. 177 of 2007, Chapter 8, § 268.90, p. 365.
Australia
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “treacherously killing or injuring” a person belonging to the adverse party, in international and non-international armed conflicts.
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, §§ 268.49 and 268.90.
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 … :
…
27. to kill or wound treacherously individuals belonging to the hostile nation or army or a combatant adversary.
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 quater, § 1(27).
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 … :
…
15 bis to kill or wound treacherously individuals belonging to the hostile nation or army or a combatant adversary.
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 ter, § 1(15 bis).
Bosnia and Herzegovina
Under the Federation of Bosnia and Herzegovina’s Criminal Code (1998), if the killing of an enemy who has laid down arms or has surrendered at discretion, or has no longer any means of defence, is committed in an “insidious way”, this constitutes an aggravating circumstance of the war crime.
Bosnia and Herzegovina, Federation, Criminal Code, 1998, Article 158(2).
The Republika Srpska’s Criminal Code (2000) contains the same provision.
Bosnia and Herzegovina, Republika Srpska, Criminal Code, 2000, Article 438(2).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) states:
(1) Whoever in violation of the rules of international law in time of war or armed conflict kills or wounds an enemy who has laid down arms or unconditionally surrendered or has no means of defence,
shall be punished by imprisonment for a term of between one and ten years.
(2) If the killing referred to in paragraph 1 of this Article has been perpetrated in a cruel or insidious way, out of greed or from other low motives, or if more persons have been killed, the perpetrator
shall be punished by imprisonment for a term of not less than ten years or long-term imprisonment.
Bosnia and Herzegovina, Criminal Code, 2003, Article 177(1) and (2).
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
[The following are] considered as war crimes:
…
B. Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts:
…
k) killing or wounding treacherously individuals belonging to the hostile nation or army;
…
D. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
…
i) killing or wounding treacherously a combatant adversary.
Burundi, Law on Genocide, Crimes against Humanity and War Crimes, 2003, Article 4(B)(k) and (D)(i).
Burundi
Burundi’s Penal Code (2009) states:
“War crimes” means crimes which are committed as part of a plan or policy or as part of a large-scale commission of such crimes, in particular:
…
2. … [S]erious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
…
11°. Killing or wounding treacherously individuals belonging to the hostile nation or army;
…
5. … [S]erious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
…
9°. Killing or wounding treacherously a combatant adversary.
Burundi, Penal Code, 2009, Article 198(2)(11°) and (5)(9°).
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).
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.
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.
Croatia
Under Croatia’s Criminal Code (1997), if the killing of an enemy who has laid down arms or has surrendered at discretion, or has no longer any means of defence, is committed in a “treacherous way”, this constitutes an aggravating circumstance of the war crime.
Croatia, Criminal Code, 1997, Article 161(2).
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).
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 flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as 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 punishable by 20 years’ imprisonment.
When the offence defined in the first paragraph results in such harm to the combatant leading to permanent mutilation or disability, the penalty is increased to 30 years’ imprisonment.
When the offence results in the death of the victim, the penalty is increased to life imprisonment.
France, Penal Code, 1992, as amended in 2010, Article 461-29.
Georgia
Under Georgia’s Criminal Code (1999), any war crime provided for by the 1998 ICC Statute, which is not explicitly mentioned in the Code, such as “killing or wounding treacherously individuals belonging to the hostile nation or army” in international armed conflicts, and “killing or wounding treacherously a combatant adversary” in non-international armed conflicts, are crimes.
Georgia, Criminal Code, 1999, Article 413(d).
Germany
Germany’s Law Introducing the International Crimes Code (2002) punishes anyone who, in connection with an international or non-international armed conflict, “treacherously kills or wounds a member of the hostile armed forces or a combatant of the adverse party”.
Germany, Law Introducing the International Crimes Code, 2002, Article 1, § 11(1)(7).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 37(1), is a punishable offence.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Italy
Italy’s Law of War Decree (1938), as amended in 1992, states that it is prohibited to kill or injure an enemy by treachery.
Italy, Law of War Decree, 1938, as amended in 1992, Article 35(2).
Mali
Under Mali’s Penal Code (2001), “killing or wounding by treachery individuals belonging to the enemy nation or army” is a war crime in international armed conflicts.
Mali, Penal Code, 2001, Article 31(i)(11).
Netherlands
Under the International Crimes Act (2003) of the Netherlands, “treacherously killing or wounding individuals belonging to the hostile nation or army” is a crime, whether in time of international or non-international armed conflict.
Netherlands, International Crimes Act, 2003, Articles 5(3)(d) and 6(2)(d).
New Zealand
Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crimes defined in Article 8(2)(b)(xi) and (e)(ix) of the 1998 ICC Statute.
New Zealand, International Crimes and ICC Act, 2000, Section 11(2).
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).
Norway
Norway’s Penal Code (1902), as amended in 2008, states:
Any person is liable to punishment for a war crime who in connection with an armed conflict … lead[s] any person to believe that he is entitled to protection or is obliged to provide protection in accordance with international law and with the intention of betraying this trust, kills or wounds any person belonging to the nationals or armed forces of the hostile party.
Norway, Penal Code, 1902, as amended in 2008, § 106(g).
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 six years and not more than twenty-five years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she:
…
7. Treacherously attacks a member of the enemy armed forces or a member of the adverse party who directly participates in hostilities, with the result set out in Article 33, paragraphs 16 and 17 [of the present code, namely serious injury or death].
Peru, Military and Police Criminal Code, 2010, Article 91(7).
Republic of Korea
The Republic of Korea’s ICC Act (2007) provides for the punishment of anyone who commits the war crime of “[t]reacherously killing or wounding in violation of international law individuals belonging to the hostile nation or army” in both international and non-international armed conflicts.
Republic of Korea, ICC Act, 2007, Article 13(1)(7).
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.
Senegal
Senegal’s Penal Code (1965), as amended in 2007, states that the following constitute war crimes:
b) [O]ther serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
…
10. killing or wounding treacherously individuals belonging to the hostile nation or army;
…
d) …
Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
…
9. killing or wounding treacherously combatant adversaries.
Senegal, Penal Code, 1965, as amended in 2007, Article 431-3(b)(10) and (d)(9).
Serbia
Serbia’s Criminal Code (2005) states:
(1) Whoever in violation of international law in time of war or armed conflict kills or wounds an enemy who has laid down his weapons or has surrendered unconditionally or has no means of defence, shall be punished by imprisonment of one to fifteen years.
(2) If the murder specified in paragraph 1 of this Article is committed in a perfidious manner or from base motives, the offender shall be punished by imprisonment for a minimum of ten years.
Serbia, Criminal Code, 2005, Article 385.
Slovenia
Under Slovenia’s Penal Code (1994), if the killing of an enemy who has laid down arms or has surrendered at discretion, or has no longer any means of defence, is executed in a “perfidious way”, this constitutes an aggravating circumstance of the war crime.
Slovenia, Penal Code, 1994, Article 379(2).
South Africa
South Africa’s ICC Act (2002) reproduces the war crimes listed in the 1998 ICC Statute, including “killing or wounding treacherously individuals belonging to the hostile nation or army” in international armed conflicts and “killing or wounding treacherously a combatant adversary” in non-international armed conflicts.
South Africa, ICC Act, 2002, Schedule 1, Part 3, §§ (b)(xi) and (e)(ix).
Sweden
Under Sweden’s Penal Code (1962), as amended in 1998, “the killing or injuring of an opponent by means of some … 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), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”:
Art. 110
Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
…
Art. 112c
1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:
…
d. kills or wounds an enemy combatant treacherously[.]
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 110 and 112c (1)(d).
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states under the title “War crimes”:
Art. 264b
Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
…
Art. 264g
1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:
…
d. kills or wounds an enemy combatant treacherously[.]
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 264b and 264g (1)(d).
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)(xi) and (e)(ix) 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).
United States of America
Under the US War Crimes Act (1996), violations of Article 23(b) of the 1907 Hague Regulations are war crimes.
United States, War Crimes Act, 1996, Section 2441(c)(2).
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
Ҥ 950v. Crimes triable by military commissions
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(17) USING TREACHERY OR PERFIDY.—Any person subject to this chapter who, after inviting the confidence or belief of one or more persons that they were entitled to, or obliged to accord, protection under the law of war, intentionally makes use of that confidence or belief in killing, injuring, or capturing such person or persons shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2629, § 950v(b)(17).
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
Ҥ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(17) USING TREACHERY OR PERFIDY.—Any person subject to this chapter who, after inviting the confidence or belief of one or more persons that they were entitled to, or obliged to accord, protection under the law of war, intentionally makes use of that confidence or belief in killing, injuring, or capturing such person or persons shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
United States, Military Commissions Act, 2009, § 950t(17).
Yugoslavia, Socialist Federal Republic of
Under Socialist Federal Republic of Yugoslavia’s the Penal Code (1976), as amended in 2001, if the killing of an enemy who has laid down arms or has surrendered, or has no means of defence, has been committed in a “perfidious manner”, this constitutes an aggravating circumstance of the war crime.
Yugoslavia, Socialist Federal Republic, Penal Code, 1976, as amended in 2001, Article 146(2).
Generally speaking, the Code provides that the use of a prohibited method of combat is a war crime, including the “perfidious killing or wounding of members of the enemy army”.
Yugoslavia, Socialist Federal Republic, Penal Code, 1976, as amended in 2001, Article 148(1), including commentary.
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.
Germany
In 2010, in the Chechen Refugee case, Germany’s Federal Administrative Court was called upon to decide whether a Russian refugee claimant from Chechnya had to be excluded from refugee protection because there were serious reasons for considering that he had committed a war crime in Chechnya in 2002 by killing two Russian soldiers and taking a Russian officer hostage. The Court held:
36
bb) The perfidious killing of the two Russian soldiers under Art. 9 para. 2 sub-para. e no. IX of the [1998] ICC Statute must be examined more closely.
…
38
In order to define more concretely the requirements of “treacherous killing”, one can draw from the prohibition of perfidy in international armed conflict under Art. 37 para. 1 of the Additional Protocol I to the Geneva Conventions of 12 August 1949 relative to the Protection of Victims of International Armed Conflicts of 8 June 1977 … , which is also pertinent in non-international armed conflict.
…
40
However, concerning non-international armed conflict it must be taken into account that there is no obligation of guerrilla or resistance fighters to wear uniform. Thus, the crime of feigning the status of a civilian or non-combatant is only fulfilled under special conditions. However, resistance fighters in non-international armed conflict are obliged to carry their weapons openly in order to facilitate the distinction between fighters and civilians. This follows from the provision of Art. 44 para. 3 [of the 1977] Additional Protocol I according to which combatants do not violate the prohibition of perfidy if they carry their weapons openly during each military operation including the preparation of attacks. This assessment must also be considered in the application of the prohibition of perfidy in non-international armed conflict …
41
… Assuming that the appellant was directly participating in hostilities (on this matter see Art. 13 para. 3 Additional Protocol II …), it is possible that the appellant acted perfidiously because he did not indicate his direct participation in hostilities by carrying weapons openly or in any other way. In this case, he would have concealed that at the pertinent moment in time he was not entitled to protection and could have been attacked (see the interpretative guidance of the International Committee of the Red Cross on the notion of direct participation in hostilities …) By hiding their weapons, the attackers mislead the Russian soldiers into believing that they did not have to anticipate an attack from the resistant fighter and the appellant and that they were therefore not allowed to attack them.
Germany, Federal Administrative Court, Chechen Refugee case, Judgment, 16 February 2010, §§ 36, 38 and 40–41.
Israel
In its judgment in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
In general, combatants and military objectives are legitimate targets for military attack. Their lives and bodies are endangered by the combat. They can be killed and wounded. However, not every act of combat against them is permissible, and not every military means is permissible. Thus, for example, they can be shot and killed. However, “treacherous killing” and “perfidy” are forbidden (see DINSTEIN, at p. 198).
Israel, High Court of Justice, Public Committee against Torture in Israel case, Judgment, 14 December 2006, § 23.
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.
Iraq
According to the Report on the Practice of Iraq, perfidy and treachery are absolutely prohibited.
Report on the Practice of Iraq, 1998, Chapter 2.4.
In the reply by the Iraqi Ministry of Defence to a questionnaire, mentioned in the report, reference is made to Article 37 of the 1977 Additional Protocol I. Report on the Practice of Iraq, 1998, Reply by the Ministry of Defence to a questionnaire, July 1997, Chapter 2.4.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states: “International humanitarian law prohibits killing, injuring or capturing an adversary by resorting to perfidy.”
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, member of the UN) 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 its Country Reports on Human Rights Practices for 1996, in a section entitled “Use of Excessive Force and Violations of Humanitarian Law in Internal Conflicts”, the US Department of State noted that, in Uganda, “newspapers reported that [a rebel leader] offered bounties for the killing of prominent Ugandan military personnel, including the Minister of State for Defence”.
United States, Department of State, Country Reports on Human Rights Practices for 1996, United States Government Printing Office, Washington D.C., 30 January 1997.
United States of America
The US Presidential Executive Order 12333 of 1981 provides: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”
United States, Executive Order 12333, 4 December 1981, CFR, 1981 Comp. (1982), p. 213.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State, referring to Article 37 of the 1977 Additional Protocol I, affirmed: “We support the principle that individual combatants not kill, injure, or capture enemy personnel by resort to perfidy.”
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 425.
United States of America
In 1989, in a memorandum of law, the Office of the Judge Advocate General of the US Department of the Army concluded:
The clandestine, low visibility or overt use of military force against legitimate targets in time of war, or against similar targets in time of peace where such individuals or groups pose an immediate threat to United States citizens or the national security of the United States, as determined by the competent authority, does not constitute assassination or conspiracy to engage in assassination, and would not be prohibited by the proscription in [Executive Order] 12333 or by international law.
United States, Department of the Army, Office of the Judge Advocate General, Memorandum of Law: Executive Order 12333 and Assassination, 2 November 1989, The Army Lawyer, Pamphlet 27-50-204, December 1989, p. 4.
United States of America
In 1991, in response to an ICRC memorandum on the applicability of IHL in the Gulf region, the US Department of the Army stated that its practice was consistent with the prohibition of killing, injuring or capturing an adversary by resort to perfidy contained in Article 37 of the 1977 Additional Protocol I.
United States, Letter from the Department of the Army to the legal adviser of the US Army forces deployed in the Gulf region, 11 January 1991, § 8(J), Report on US Practice, 1997, Chapter 2.8.
No data.
No data.
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts
The report of the Working Group to Committee III of the CDDH stated:
It should be noted that article 35 [now Article 37 of the 1977 Additional Protocol I] does not prohibit perfidy per se, but merely “to kill, injure or capture an adversary by resort to perfidy”. Additionally, it should be noted that, in order to be perfidy, an act must be done “with intent to betray” the confidence created. This was intended to mean that the requisite intent would be an intent to kill, injure or capture by means of the betrayal of confidence. Thus, acts … which are intended merely to save one’s life would not be perfidy.
CDDH, Official Records, Vol. XV, CDDH/III/338, 21 April 1976–11 June 1976, p. 426.
No data.
ICRC
The ICRC Commentary on the Additional Protocols states that Article 37 of the 1977 Additional Protocol I does not replace the 1907 Hague Regulations:
It is thus clear that the prohibition on the treacherous killing or wounding of individuals belonging to the nation or the army of the enemy, as formulated in Article 23(b) of the Regulations, has survived in its entirety.
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 1488.
In analysing Article 37(1) of the 1977 Additional Protocol I, the Commentary further states: “It seems evident that the attempted or unsuccessful act also falls under the scope of this prohibition [of perfidy].”
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 1493.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “It is prohibited to kill, injure or capture an enemy by resort to perfidy.”
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 408.
Americas Watch
In 1985, in a report on violations of the laws of war in Nicaragua, Americas Watch stated: “The following … are prohibited by applicable international law rules: … Assassination of civilian officials, such as judges or political leaders.”
Americas Watch, Violations of the Laws of War by Both Sides in Nicaragua: 1981-1985, New York, March 1985, pp. 33 and 34.
Africa Watch
In 1989, in a report on violations of the laws of war in Angola, Africa Watch stated: “Applicable international law rules prohibit the following kinds of practices … Assassination of civilian officials, such as political leaders.”
Africa Watch, Angola: Violations of the Laws of War by Both Sides, New York, April 1989, p. 141.
International Institute of Humanitarian Law
The Rules of International Humanitarian Law Governing the Conduct of Hostilities in Non-international Armed Conflicts, adopted in 1990 by the Council of the IIHL, provide: “The prohibition to kill, injure or capture an adversary by resort to perfidy is a general rule applicable in non-international armed conflicts.”
International Institute of Humanitarian Law, Rules of International Humanitarian Law Governing the Conduct of Hostilities in Non-international Armed Conflicts, Rule A4, IRRC, No. 278, 1990, p. 390.
Additional Protocol I
Article 37(1)(b) of the 1977 Additional Protocol I lists “the feigning of an incapacitation by wounds or sickness” as an act of perfidy.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 37(1)(b). Article 37 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 103.
Additional Protocol II (draft)
Article 21(1) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided that “when carried out in order to commit or resume hostilities, … the feigning of a situation of distress” was considered perfidy.
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.
San Remo Manual
Paragraph 111(b) of the 1994 San Remo Manual states: “Perfidious acts include the launching of an attack while feigning … distress by, e.g., sending a distress signal or by the crew taking to life rafts.”
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(b).
Argentina
Argentina’s Law of War Manual (1989) states that “feigning incapacitation by wounds or sickness” is an example of perfidy.
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.05(2)(2).
Australia
Australia’s Commanders’ Guide (1994) states: “Acts which constitute perfidy include feigning of … an incapacitation by wounds or sickness.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 826(b) (naval warfare) and § 902(b) (land warfare).
In a section entitled “Perfidy”, the Guide also states: “It is unlawful to falsely claim injury or distress for the purpose of escaping attack or inviting an enemy to lower their guard.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 503.
Australia
Australia’s Defence Force Manual (1994) states: “Acts which constitute perfidy include feigning of … an incapacitation by wounds or sickness.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 703(b).
Australia
Australia’s LOAC Manual (2006) states: “Acts which constitute perfidy include feigning of … an incapacitation by wounds or sickness.”
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.3.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states that “feigning being wounded and wanting to surrender and firing at an adversary willing to help” and “showing signs of distress in order to mislead the enemy” are acts of perfidy.
Belgium, 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 Officers (1994) prohibits perfidy. For example, “feigning being dead to avoid capture is lawful, but not feigning to be wounded to kill an enemy who tries to help you”.
Belgium, Droit de la Guerre, Manuel d’Instruction pour Officiers, Etat-Major Général, Division Opérations, 1994, Part I, Title II, p. 33.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “Perfidy consists of committing a hostile act under the cover of legal protection (e.g. … feigning being disabled by injuries or sickness …)”.
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. 32; see also Part I bis, p. 95.
Cameroon
Cameroon’s Instructor’s Manual (1992) provides that “feigning incapacitation by wounds or sickness” is an example of perfidy.
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 63, § 234.
Likewise, “feigning being hors de combat” is qualified as an act of perfidy. Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 149, § 531.1.
Cameroon
Cameroon’s Instructor’s Manual (2006) lists “feigning being hors de combat” as 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.
Canada
Canada’s LOAC Manual (1999) states: “The following are examples of perfidy if a hostile act is committed while: … feigning incapacitation by wounds or sickness.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 9(b) (land warfare), p. 7-2, § 17(b) (air warfare) and p. 8-11, § 81(c) (naval warfare).
Canada
Canada’s LOAC Manual (2001) states in its chapters on land warfare, air warfare and naval warfare: “The following are examples of perfidy if a hostile act is committed while: … feigning incapacitation by wounds or sickness.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 603.2.b (land warfare), 706.2.b (air warfare) and 857.2.c (naval warfare).
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
… The following acts are regarded as perfidy:
…
- the feigning of being hors de combat.
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 16.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
IHL prohibits recourse to perfidy with the aim to kill, injure or capture an enemy.
Regarded as perfidy is any act which appeals to the good faith of the enemy, with the intention to deceive him, and with the aim to make him believe that he is entitled to receive, or has the obligation to give, protection provided by the rules of IHL.
The following acts are examples of perfidy:
…
- feigning of an incapacitation by wounds or sickness.
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, p. 41; see also Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 48.
Croatia
Croatia’s Commanders’ Manual (1992) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: … feigning … of incapacitation by wounds or sickness.”
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:
It is a violation of the law of armed conflict to kill, injure or capture the enemy … by feigning shipwreck, sickness, [or] wounds … A surprise attack by a person feigning shipwreck, sickness, or wounds undermines the protected status of those rendered incapable of combat … Such acts of perfidy are punishable war crimes.
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 12.7.
France
France’s LOAC Summary Note (1992) prohibits perfidy and provides: “It is forbidden … to feign … wounds or sickness.”
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.
Germany
Under Germany’s Soldiers’ Manual (1991), “the feigning of being incapacitated for combat” constitutes a perfidious act.
Germany, Taschenkarte, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, Bearbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, Zentrum Innere Führung, June 1991, p. 2.
Germany
Germany’s Soldiers’ Manual (2006) states that perfidious acts are those “by which the adversary is induced to believe that there is a situation affording protection under public international law, so that he may be attacked by surprise, e.g. the feigning of an incapacitation”.
Germany, Druckschrift Einsatz Nr. 03, Humanitäres Völkerrecht in bewaffneten Konflikten –Grundsätze, Erarbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, p. 2.
Greece
The Hellenic Navy’s International Law Manual (1995) provides that “the feigning of being wounded” 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), feigning incapacitation by wounds or sickness is an example of perfidy.
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 63.
Israel
Referring to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states that the Israel Defense Forces (IDF) prohibit “the resort to perfidy to kill, injure or capture an adversary. Therefore, the IDF does not … feign incapacitation.”
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 example of perfidy: “Pretending damage to fighting capacity through injury or illness with a view to gaining military advantage.”
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 57.
Israel
Israel’s Manual on the Rules of Warfare (2006) states the following example of “betrayals of trust or treachery”:
Pretending to be injured or ill for the purpose of achieving a military advantage. Here again, the purpose is to prevent a situation in which the soldiers of one side would fear getting medical help for the wounded of the other side.
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 on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s LOAC Elementary Rules Manual (1991) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: … feigning … to be hors de combat because of wounds or sickness.”
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 46.
Madagascar
Madagascar’s Military Manual (1994) states that feigning incapacitation because of wounds or sickness is prohibited.
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 that the 1977 Additional Protocol I “gives a number of examples of treacherous behaviour [including] feigning to be hors de combat by wounds or sickness”.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IV-2.
Netherlands
The Military Handbook (1995) of the Netherlands provides that it is a prohibited method of warfare “to perform treacherous acts (for example, feigning to have been killed or to be wounded … and then suddenly resume fighting)”.
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-40.
Netherlands
The Military Manual (2005) of the Netherlands states:
AP I [1977 Additional Protocol I] lists a number of examples of acts of perfidy:
- the feigning of incapacitation by wounds or sickness;
…
It is forbidden to lead an adversary in battle to believe, by behaviour (moaning and groaning) that you are wounded and wish to surrender and then suddenly to open fire on those offering help. A combatant who feigns death on the battlefield to evade capture and then return to his own lines commits no act of perfidy. He only wants to mislead the enemy.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 0414–0415.
New Zealand
New Zealand’s Military Manual (1992) states that “the feigning of an incapacitation by wounds or sickness” is an example of perfidy.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 502(5) (land warfare) and § 713(2) (naval warfare).
However, the manual notes: “If the motive is survival rather than hostile intent, a soldier can, without committing perfidy, feign incapacity in order to live to fight another day.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 502(5), footnote 3.
Nigeria
Nigeria’s Military Manual (1994) gives the following example of “perjury” (perfidy): “feigning incapacitation by wounds or sickness”.
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, pp. 42 and 43, § 12(c).
Peru
Peru’s IHL Manual (2004) states that “the feigning of an incapacitation by wounds or sickness” is an example of perfidy.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 27.e.(9).(c).
Peru
Peru’s IHL and Human Rights Manual (2010) states that “the feigning of an incapacitation by wounds or sickness” is an example of perfidy.
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 28(e)(2)(c), p. 239.
Romania
Under Romania’s Soldiers’ Manual (1991), “simulation of incapacity due to wound or sickness” is an act of perfidy.
Romania, Manualul Soldatului, Ghid de comportare în luptă, Asociaţia Română de Drept Umanitar (ARDU), 1991, p. 35.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
When planning and conducting combat operations it is necessary to draw a clear distinction between perfidy and ruses of war. Perfidy means committing a hostile act under the cover of a right to protection by feigning: … incapacitation by wounds or sickness.
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 8.
South Africa
South Africa’s LOAC Manual (1996) provides: “It is forbidden to feign … injury … Such actions are referred to as ‘perfidy’ and constitute grave breaches of the LOAC.”
South Africa, 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).
South Africa
South Africa’s Revised Civic Education Manual (2004) states: “It is not permissible to attempt to deceive the enemy by abusing the LOAC or misusing the various protections it affords. For example, it is forbidden to feign … injury.”
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 56(c).
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
- Perfidy
…
- It is prohibited to conduct operations in a perfidious manner.
…
- The following acts are examples of perfidy ([1977] Additional Protocol I article 37):
…
- To pretend being incapacitated by wounds or sickness[.]
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. Eg, the launching of an attack … while feigning surrender or distress by e.g. sending a distress signal or by the crew taking to life rafts.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 4, pp. 198 and 207.
Spain
Spain’s LOAC Manual (1996) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: … feigning … incapacitation by wounds or sickness.”
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).
According to the manual, this is considered as an example of a perfidious act.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, §§ 3.3.b.(1), 5.3.c and 7.3.c.
Spain
Spain’s LOAC Manual (2007) prohibits the act of perfidy and states that “the feigning of an incapacitation by wounds or sickness” is an example of such an act.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.3.b.(3); see also, §§ 3.3.b.(1).(b), 5.3.c and 7.3.c.
Sweden
Under Sweden’s IHL Manual (1991), “the feigning of incapacitation by wounds or sickness” constitutes perfidious conduct. However, “if for example a soldier simulates injury or sickness only to avoid an adversary’s attack, this is not judged as perfidy”.
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) provides that perfidy is forbidden and that: “It is notably prohibited … to feign incapacitation for combat by wounds or sickness”.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 39.
Ukraine
Ukraine’s IHL Manual (2004) states that an example of perfidy is “the feigning of an incapacitation by wounds or sickness”.
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.44.
United Kingdom of Great Britain and Northern Ireland
According to the UK Military Manual (1958), “it would be treachery for a soldier to sham wounded or dead and then to attack enemy soldiers who approached him without hostile intent”.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 115, footnote 2; see also § 311, footnote 1.
United Kingdom of Great Britain and Northern Ireland
According to the UK LOAC Manual (2004), “the feigning of an incapacitation by wounds or sickness” is an example of prohibited perfidy, “if done with intent to betray the enemy’s confidence”.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.9.2.
United States of America
The US Air Force Pamphlet (1976) considers that:
Since situations of distress occur during times of armed conflict, as well as peace, and frequently suggest that the persons involved are hors de combat, feigning distress or death, wounds or sickness in order to resume hostilities constitutes perfidy in ground combat. However, a sick or wounded combatant does not commit perfidy by calling for and receiving medical aid even though he may intend immediately to resume fighting … In aerial warfare, it is forbidden to improperly use internationally recognized distress signals to lure the enemy into a false sense of security and then attack.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 8-6(a); see also § 8-3(a).
United States of America
The US Naval Handbook (1995) states:
It is a violation of the law of armed conflict to kill, injure or capture the enemy … by feigning shipwreck, sickness, [or] wounds … A surprise attack by a person feigning shipwreck, sickness, or wounds undermines the protected status of those rendered incapable of combat … Such acts of perfidy are punishable war crimes.
United States, 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), § 12.7.
United States of America
The US Naval Handbook (2007) states:
It is a violation of the law of armed conflict to kill, injure, or capture the enemy … by feigning shipwreck, sickness, [or] wounds … A surprise attack by a person feigning shipwreck, sickness, or wounds undermines the protected status of those rendered incapable of combat. Such acts of perfidy are punishable war crimes.
United States, 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, § 12.7.
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, states: “One may commit an act of treachery or perfidy by, for example … feigning incapacitation by wounds or sickness”.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(17)(c)(4), p. IV-15.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states that “feigning incapacitation by wounds or sickness” is an act of perfidy.
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 104(2).
Colombia
Colombia’s Penal Code (2000), in an article entitled “Perfidy”, imposes a criminal sanction on “anyone who, during an armed conflict and with intent to harm or attack the adversary, simulates the condition of a protected person”, including the wounded and sick.
Colombia, Penal Code, 2000, Articles 135 and 143.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 37(1), is a punishable offence.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
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).
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.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states:
Perfidy
International humanitarian law prohibits killing, injuring or capturing an adversary by resorting to perfidy. Acts of perfidy include any form of deception designed to win the confidence of an adversary and lead him to believe that he is entitled or obliged to accord protection under the rules of international humanitarian law, with the intention of betraying that confidence. An example of perfidy is to falsely lay claim to protected status through … feigning incapacitation on the grounds of injuries or sickness.
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, pp. 29 and 34.
No data.
No data.
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts
Commenting on Article 35 of the draft Additional Protocol I (now Article 37), a Working Group reporting to Committee III of the CDDH stated: “Feigning death in order to kill an enemy once he turned his back would be perfidy.”
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 “to pretend being incapacitated by wounds or sickness” constitutes an act of perfidy.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 409(c).
No data.
Note: For practice concerning the improper use of the white flag of truce which does not amount to perfidy, see Rule 58.
Additional Protocol I
Article 37(1)(a) of the 1977 Additional Protocol I lists “the feigning … of a surrender” as an act of perfidy.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 37(1)(a). Article 37 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 103.
Additional Protocol I
Under Article 85(3) 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). Article 85 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/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.
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 surrender” was considered as 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 a flag of truce, … 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
Article 8 of the 1880 Oxford Manual prohibits the making of “treacherous attempts upon the life of an enemy; as for example … by feigning to surrender”.
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 8.
San Remo Manual
Paragraph 111(b) of the 1994 San Remo Manual states: “Perfidious acts include the launching of an attack while feigning … surrender.”
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(b).
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).
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 a flag of truce, … 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
Argentina’s Law of War Manual (1989) provides that “feigning the intent … to surrender” is an example of perfidy.
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.05(2)(1).
It also states 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) provides: “Acts which constitute perfidy include feigning of … an intent to … surrender.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 826(a) (naval warfare) and § 902(a) (land warfare).
In a section entitled “Perfidy”, The Guide states: “It is unlawful to feign surrender for the purpose of inviting an enemy to lower his guard.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 505.
The Guide further states: “The following examples constitute grave breaches or serious war crimes likely to warrant institution of criminal proceedings: … feigning surrender in order to obtain military advantage.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1305(r).
Australia
Australia’s Defence Force Manual (1994) states: “Acts which constitute perfidy include feigning of … an intent to … surrender.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 703(a) (land warfare); see also § 636(b) (naval warfare) and § 910.
The manual further states: “The following examples constitute grave breaches or serious war crimes likely to warrant institution of criminal proceedings: … feigning surrender in order to obtain military advantage.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1315(r).
Australia
Australia’s LOAC Manual (2006) states: “Acts which constitute perfidy include feigning of … an intent to … surrender.”
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.3.
In its chapter on “Maritime Operations”, the manual states: “Perfidious acts … include the launching of an attack while feigning … surrender or distress, eg by sending a distress signal or by the crew taking to life rafts”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 6.36.
In its chapter on “Compliance”, the manual 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 Teaching Manual for Officers (1994) prohibits perfidy. For example, “feigning to surrender and then opening fire at the enemy who collects you as ‘prisoner of war’ is an aggravated act of perfidy if the white flag, which is a protective sign, is used”.
Belgium, Droit de la Guerre, Manuel d’Instruction pour Officiers, Etat-Major Général, Division Opérations, 1994, Part I, Title II, p. 33.
Belgium
Belgium’s Teaching Manual for Soldiers states: “Using a white flag or feigning surrender in order to attack an adversary is strictly prohibited and constitutes a grave breach of the laws of war.”
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. 15.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) lists “[f]eigning to surrender” as an example of “perfidy”.
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 24; see also Part I bis, p. 95.
Cameroon
Cameroon’s Instructor’s Manual (1992) provides that “feigning to surrender” is an example of perfidy.
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 30, § 131.1, p. 63, § 234 and p. 90, § 222.
Cameroon
Cameroon’s Instructor’s Manual (2006) lists “feigning to surrender” as 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. 103, § 371; see also p. 147, § 431 and p. 222, § 222.
Canada
Canada’s LOAC Manual (1999) states: “The following are examples of perfidy if a hostile act is committed while: … feigning … to surrender.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 9(a) (land warfare) and p. 7-2, § 17(a) (air warfare); see also p. 8-11, § 81(b) (naval warfare).
The manual also considers that “feigning surrender of an aircraft and then firing on an unsuspecting adversary after such surrender was accepted” constitutes 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(b).
The manual further 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 Level, Office of the Judge Advocate General, 1999, p. 16-2, § 8(a) and p. 16-3, § 16(f).
Canada
Canada’s LOAC Manual (2001) states in its chapters on land warfare and air warfare: “The following are examples of perfidy if a hostile act is committed while: a. feigning an intent … to surrender”.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 603.2.a (land warfare) and 706.2.a (air warfare).
In its chapter on air warfare, the manual further states that it is an example of perfidy in air warfare “if a hostile act is committed while … b. feigning surrender of an aircraft and then firing on an unsuspecting adversary after such surrender was accepted”.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 706.3.b.
In its chapter on naval warfare, the manual states: “The following are examples of perfidy if a hostile act is committed while: … b. feigning distress or surrender (e.g., by sending a distress signal or by the crew taking to the life rafts)”.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 857.2.b.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual identifies as a grave breach of 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: “Using a white flag or pretending to surrender in order to attack an adversary is formally prohibited and constitutes a grave breach of the laws of war (act of perfidy).”
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. 87; see also p. 108.
Colombia
Colombia’s Directive on IHL (1993) punishes “the perfidious use of … protective signs recognized under the law of war (the white flag … for example).”
Colombia, Normas de Derecho Internacional Humanitario, Directiva Permanente No. 017, Ministerio de Defensa Nacional, 17 August 1993, Section III(D).
Colombia
Colombia’s Instructors’ Manual (1999) provides: “Feigning surrender and then attacking is perfidy.”
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 32.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (instruction of first-year trainee officers):
… IHL prohibits recourse to perfidy with the aim to kill, injure or capture an enemy.
Regarded as perfidy is any act which appeals to the good faith of the enemy, with the intention to deceive him, and with the aim to make him believe that he is entitled to receive, or has the obligation to give, protection provided by the rules of IHL.
The following acts are examples of perfidy:
…
- feigning surrender.
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, p. 41.
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: … feigning surrender.”
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: “Feigning surrender in order to lure the enemy into a trap is 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, § 12.1.2.
The manual adds: “It is a violation of the law of armed conflict to kill, injure, or capture the enemy by false indication of an intent to surrender … Such [act] of perfidy [is a] punishable war [crime].”
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 12.7.
In addition, the manual states: “The following acts constitute war crimes: … treacherous request for quarter (for example, feigning surrender in order to gain a military advantage)”.
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 6.2.5(12).
France
France’s LOAC Summary Note (1992) provides: “It is prohibited to feign a protected status to invite the confidence of the enemy (abuse of … the white flag).”
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.
Furthermore, the Summary Notes 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 the white flag”.
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: “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.
The manual also states: “Simulating surrender to deceive the enemy is an act of perfidy which is prohibited by the law of armed conflicts.”
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. 105.
The manual 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) states: “It is … prohibited … to feign surrender.”
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 1019.
The manual further provides: “Grave breaches of international humanitarian law are in particular: … 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 Konflikten – Handbuch, August 1992, § 1209.
Hungary
Under Hungary’s Military Manual (1992), feigning surrender constitutes an example of perfidy.
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 63.
It 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.
Indonesia
Indonesia’s Military Manual (1982) provides: “It is prohibited to kill or injure the enemy by perfidy, such as … to misuse the flag of truce.”
Indonesia, The Basics of International Humanitarian Law, Legal Division of the Indonesian Armed Forces, 1982, § 103.
Israel
Referring to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states that the Israel Defense Forces (IDF) prohibit “the resort to perfidy to kill, injure or capture an adversary. Therefore, the IDF does not feign intent to surrender.”
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 example of perfidy: “It is forbidden to use a white flag for an inappropriate purpose (posing as persons surrendering … with a view to gaining a military advantage).”
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 56.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
[I]n order to ensure that a combatant party will indeed respect those who have surrendered and will not hurt them, a ban has been imposed on pretending to surrender, i.e., to wave a white flag as deception while continuing to fight.
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 also states:
It is forbidden to make false use of the white flag (pretending to surrender or to be willing to negotiate while the true intention is to obtain a military advantage) so that soldiers from the other side will not fear allowing fighter[s] to live and grant them the status of prisoner-of-war.
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:
In order to protect the “sanctity” of defence under the rules of war, a combatant is forbidden (whether on the losing side or on the side accepting the surrender) to breach the conditions of surrender by resuming combat or by breaching the agreed rules of surrender.
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 39.
In addition, the manual states: “Prohibited methods (such as simulated surrender) must not be used.”
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 49.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Under Italy’s IHL Manual (1991), 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: … feigning of surrender.”
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:
Parlementaires, i.e. those who request to meet with the Commanding Officer of the enemy unit to discuss a ceasefire or to surrender, are protected by the “White flag”.
IT IS PROHIBITED to deceive the enemy by raising a white flag and then opening fire.
Italy, Manuale del Combattente, SME 1000/A/2, Stato Maggiore Esercito/Reparto Impiego delle Forze, Ufficio Dottrina, Addestramento e Regolamenti, 1998, § 247.
[emphasis in original]Kenya
Kenya’s LOAC Manual (1997) states: “The feigning of an intent to surrender … [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.
Madagascar
Under Madagascar’s Military Manual (1994), feigning surrender is prohibited.
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 that the 1977 Additional Protocol I “gives a number of examples of treacherous behaviour: … feigning to surrender”.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IV-2.
Netherlands
The Military Handbook (1995) of the Netherlands provides that it is a prohibited method of warfare “to perform treacherous acts (for example, feigning … to surrender and then suddenly resume fighting)”.
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-40.
It also states: “Misuse of the white flag is treachery.” Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-36.
Netherlands
The Military Manual (2005) of the Netherlands states:
AP I [1977 Additional Protocol I] lists a number of examples of acts of perfidy:
…
- the feigning of an intent to … surrender.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0414.
New Zealand
New Zealand’s Military Manual (1992) provides that “the feigning … of a surrender” is an example of perfidy.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 502(5) (land warfare) and § 713(2) (naval warfare).
The manual states: “Another example of perfidious conduct, although rare, would be surrendering an aircraft and then firing on an unsuspecting adversary after the surrender was accepted.”
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 further states that “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).
Nigeria
Nigeria’s Military Manual (1994) gives the following example of “perjury” (perfidy): “feigning surrender”.
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, pp. 42 and 43, § 12(b).
Nigeria
Nigeria’s Manual on the Laws of War considers that “feigning submission for the purpose of misleading the enemy” is an “illegitimate tactic”.
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 14.
It adds that “treacherous request for quarter” constitutes a war crime. Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 6.
Peru
Peru’s IHL Manual (2004) states that “the feigning of an intent to surrender” is an example of perfidy.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 27.e.(9).(b).
In the context of armed conflict at sea, the manual states: “Perfidious acts include the launching of an attack while feigning: … surrender or distress by, e.g., sending a distress signal or by the crew taking to life rafts.”
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 135.c.(2).
Peru
Peru’s IHL and Human Rights Manual (2010) states that “the feigning of an intent to surrender” is an example of perfidy.
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 28(e)(2)(b), p. 239.
In the context of armed conflict at sea, the manual states: “Examples of perfidious acts include … the launching of an attack while feigning: … surrender or distress by, e.g., sending a distress signal or by the crew taking to life rafts.”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 126(c)(2), p. 319.
Romania
Under Romania’s Soldiers’ Manual (1991), feigning surrender is an act of perfidy.
Romania, Manualul Soldatului, Ghid de comportare în luptă, Asociaţia Română de Drept Umanitar (ARDU), 1991, p. 35.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
When planning and conducting combat operations it is necessary to draw a clear distinction between perfidy and ruses of war. Perfidy means committing a hostile act under the cover of a right to protection by feigning: … surrender.
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 8.
South Africa
South Africa’s LOAC Manual (1996), in a paragraph on perfidy, provides: “It is forbidden to feign surrender.”
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 considers “the perfidious use of … the white flag” to be 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.
In addition, the manual provides that “treacherous requests for mercy” are also grave breaches of the law of war and war crimes.
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, §§ 39(b) 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 feign surrender …”.
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 56(c).
The manual further provides that “[t]reacherous requests for mercy” constitute 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, § 61(b).
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
- Perfidy
…
- It is prohibited to conduct operations in a perfidious manner.
…
- The following acts are examples of perfidy ([1977] Additional Protocol I article 37):
…
- To pretend surrender[.]
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. Eg, the launching of an attack … while feigning surrender or distress by e.g. sending a distress signal or by the crew taking to life rafts.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 4, pp. 198 and 207.
Spain
Spain’s LOAC Manual (1996) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: … feigning of surrender.”
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).
According to the manual, feigning surrender is an example of a perfidious act.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, §§ 3.3.b.(1), 5.3.c and 7.3.c.
The manual also states 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) prohibits the act of perfidy and states that “the feigning of an intent to negotiate under [the simulation of] surrender” is an example of such an act.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.3.b.(3); see also §§ 3.3.b.(1).(a), 5.3.c and 7.3.c.
The manual further states, under the heading “Perfidious act of feigning surrender”: “It is prohibited to attack the enemy by pretending to surrender and taking advantage of the protection afforded by prisoner-of-war status.”
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, § 8.3.a.(3).
Switzerland
Switzerland’s Basic Military Manual (1987) prohibits perfidy. Thus, it states: “It is notably forbidden … to feign surrender.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 39.
The manual considers the “perfidious use of … distinctive signs recognized by the [1949 Geneva] Conventions or [the 1977 Additional Protocol I], in violation of Article 37 [of 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 Legal Bases for Conduct during an Engagement (2005) states:
15.2 Prohibited methods of warfare
…
223 Misuse of a distinctive sign and the feigning of protected status are prohibited in any place and at any time. Examples: … using the white flag to feign surrender and then opening fire on the approaching enemy … .
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 223.
Ukraine
Ukraine’s IHL Manual (2004) states that an example of perfidy is “the feigning of surrender”.
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.44.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958), in connection with the requirements to be granted the status of combatant, notes in particular that irregular troops “should have been warned against the employment of treachery [and] improper conduct towards flags of truce”.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 95.
The manual states: “It would be treachery for a soldier … to pretend that he had surrendered and afterwards to open fire upon or attack an enemy who was treating him as hors de combat or a prisoner.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 115, footnote 2.
The manual further states: “Surrender must not be feigned in order to take the enemy at a disadvantage when he advances to secure his prisoners.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 318.
The manual also stresses: “Abuse of a flag of truce constitutes gross perfidy and entitles the injured party to take reprisals or to try the offenders if captured.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 417.
Moreover, the manual states: “In addition to the ‘grave breaches’ of the 1949 [Geneva] Conventions, … the following are examples of punishable violations of the laws of war, or war crimes: … treacherous request for quarter.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 626(a).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) gives “the feigning of an intent to surrender” as 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 also states: “Abuse of the white flag is 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, Annex A, p. 46, § 5.
United Kingdom of Great Britain and Northern Ireland
According to the UK LOAC Manual (2004), “the feigning of an intent to negotiate under a flag of truce or of surrender” is an example of prohibited perfidy, “if done with intent to betray the enemy’s confidence”.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.9.2.
In its chapter on negotiations between belligerents, the manual further explains:
It is forbidden to make improper use of a flag of truce. Thus, a feigned intention to negotiate or surrender with the intention of using the white flag as cover for the collection of information might amount to the war crime of perfidy whatever the consequences. It would amount to a grave breach of Additional Protocol I if it resulted in death or serious injury. A parlementaire who abuses his position in this way can be taken as a prisoner of war and tried.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 10.5–10.5.2 and 10.10.1.
In its chapter on maritime warfare, the manual states that launching an attack while feigning surrender is an example of perfidy.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 13.83.
United States of America
The US Field Manual (1956) provides: “It is improper to feign surrender so as to secure an advantage over the opposing belligerent thereby.”
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, § 50.
The manual also stresses: “An individual or a party acts treacherously in displaying a white flag indicative of surrender as a ruse to permit attack upon the forces of the other belligerent.”
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, § 467.
The manual further states: “In addition to the ‘grave breaches’ of the Geneva Conventions of 1949, the following acts are representative of violations of the law of war (‘war crimes’): … treacherous request for quarter.”
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, § 504(b).
United States of America
The US Air Force Pamphlet (1976) considers the feigning of surrender as 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 manual adds:
The use of a … white flag in order to deceive or mislead the enemy, or for any other purpose other than to … surrender, has long been recognized as an act of treachery … [This] expresses the customary and conventional law in this area.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 8-6(a).
The Pamphlet further provides:
In addition to the grave breaches of the Geneva Conventions of 1949, the following acts are representative of situations involving individual criminal responsibility: … treacherous request for quarter.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c)(3).
United States of America
The US Instructor’s Guide (1985) notes that an
example of a treacherous act would be pretending to surrender in order to facilitate an attack upon an unsuspecting enemy. 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 Guide further provides: “In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … pretending to surrender.”
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: “Feigning surrender in order to lure the enemy into a trap is 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), § 12.1.2.
The Handbook further provides: “It is a violation of the law of armed conflict to kill, injure, or capture the enemy by false indication of an intent to surrender … Such [act] of perfidy [is a] punishable war [crime].”
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), § 12.7.
In addition, the Handbook states: “The following acts are representative war crimes: … treacherous request for quarter (i.e., feigning surrender in order to gain a military advantage).”
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), § 6.2.5(12).
United States of America
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
IMPROPERLY USING A FLAG OF TRUCE.
a. Text. “Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused used a flag of truce;
(2) The accused made such use of the flag in order to feign an intention to negotiate, surrender, or otherwise suspend hostilities;
(3) The accused had no intention to negotiate, surrender, or otherwise suspend hostilities; and
(4) The conduct took place in the context of and was associated with armed conflict.
c. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(18), p. IV-14.
United States of America
The US Naval Handbook (2007) states: “Feigning surrender in order to lure the enemy into a trap is one example of 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, § 12.1.2.
The Handbook also states: “It is a violation of the law of armed conflict to kill, injure, or capture the enemy by false indication of intent to surrender. … Such acts of perfidy are punishable as war crimes.”
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, § 12.7.
The Handbook further states that “[t]reacherous request[s] for quarter (i.e., feigning surrender in order to gain a military advantage)” are examples of acts that could be considered war crimes.
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, § 6.2.6.
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
IMPROPERLY USING A FLAG OF TRUCE.
a. Text. “Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused used a flag of truce;
(2) The accused made such use of the flag in order to feign an intention to negotiate, surrender, or other wise suspend hostilities;
(3) The accused had no intention to negotiate, surrender, or otherwise suspend hostilities; and
(4) The conduct took place in the context of and was associated with hostilities.
c. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(18), p. IV-15.
The manual also states: “One may commit an act of treachery or perfidy by, for example, feigning an intent to negotiate under a flag of truce or a surrender”.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a,
et seq., 27 April 2010, § 5(17)(c)(4), p. IV-15.
Yugoslavia, Socialist Federal Republic of
According to the Socialist Federal Republic of Yugoslavia’s Military Manual (1988), “feigning an intention to … surrender” is an act of perfidy.
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 104(1).
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 “improper use of a flag of truce … in order to feign an intention to negotiate when there is no such intention on the part of the perpetrator … [and which] results in deaths or serious personal injury”, in international armed conflicts.
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.41.
Australia
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to serious war crimes that are committed in the course of an international armed conflict:
War crime – improper use of a flag of truce
A person (the perpetrator) commits an offence if:
(a) the perpetrator uses a flag of truce; and
(b) the perpetrator uses the flag in order to feign an intention to negotiate when there is no such intention on the part of the perpetrator; and
(c) the perpetrator knows of, or is reckless as to, the illegal nature of such use of the flag; and
(d) the perpetrator’s conduct results in death or serious personal injury; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.41, p. 329.
Azerbaijan
Azerbaijan’s Criminal Code (1999) provides that “the misuse of the white flag, … which as a result caused death or serious injury to body of a victim,” constitutes a war crime in international and non-international armed conflicts.
Azerbaijan, Criminal Code, 1999, Article 119(2).
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).
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).
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 … the white flag … of surrender”.
Colombia, Penal Code, 2000, Article 143.
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).
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 any abuse of the white flag, with intent to prepare or to commit hostile acts.
Ethiopia, Penal Code, 1957, Article 294(b).
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).
The Act adds that any “minor breach” of the 1977 Additional Protocol I, including violations of Article 37(1), is also a punishable offence.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
New Zealand
New Zealand’s Geneva Conventions Act (1958), as amended in 1987, provides: “Any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence.”
New Zealand, Geneva Conventions Act, 1958, as amended in 1987, Section 3(1).
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).
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 white flag … 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.
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 Royal Ordinance for the Armed Forces (1978) states: “A combatant … shall not display treacherously the white flag.”
Spain, Royal Ordinance for the Armed Forces, 1978, Article 138.
Spain
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict, … uses … in a perfidious manner the flag … of surrender”.
Spain, Penal Code, 1995, Article 612(6).
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).
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).
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
…
(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
…
(18) IMPROPERLY USING A FLAG OF TRUCE.—Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2629, § 950v(b)(18).
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).
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.
Argentina
At the Battle of Goose Green during the War in the South Atlantic, Argentine soldiers raised a white flag. As UK soldiers moved forward to accept the surrender, they were fired on and killed from a neighbouring position, probably in the confusion.
Max Hastings and Simon Jenkins, The Battle of the Falklands, W. W. Norton & Company, London, 1983, p. 247; Geoffrey Best, War and Law Since 1945, Clarendon Press, Oxford, 1997, p. 292; Christopher Greenwood, Scope of Application of Humanitarian Law, in Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, Oxford, 1995, § 223; Martin Middlebrook, Task Force: The Falklands War, 1982, Penguin Books, 1988, pp. 269-270.
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.
United Kingdom of Great Britain and Northern Ireland
At the Battle of Goose Green during the War in the South Atlantic, Argentine soldiers raised a white flag. As UK soldiers moved forward to accept the surrender, they were fired on and killed from a neighbouring position, probably in the confusion.
Max Hastings and Simon Jenkins, The Battle of the Falklands, W. W. Norton & Company, London, 1983, p. 247; Geoffrey Best, War and Law Since 1945, Clarendon Press, Oxford, 1997, p. 292; Christopher Greenwood, Scope of Application of Humanitarian Law, in Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, Oxford, 1995, § 223; Martin Middlebrook, Task Force: The Falklands War, 1982, Penguin Books, 1988, pp. 269-270.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Commons, the UK Secretary of State for Defence stated:
Coalition commanders have expressed considerable concern about the practice – which we have seen on more than one occasion – of Iraqi soldiers apparently surrendering but then attacking the forces to whom they appeared to be surrendering. That is clearly a serious breach of the Geneva convention and one that we will continue to highlight when appropriate.
United Kingdom, House of Commons, Statement by the Secretary of State for Defence, Hansard, 26 March 2003, Vol. 402, Debates, col. 298.
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 an intent to surrender …
[I]ndividual acts of perfidy did occur. On one occasion, Iraqi soldiers waved a white flag and laid down their weapons. When a Saudi Arabian patrol advanced to accept their surrender, it was fired upon by Iraqi forces hidden in buildings on either side of the street. During the same battle, an Iraqi officer approached Coalition forces with his hands in the air, indicating his intention to surrender. When near his would-be-captors, he drew a concealed pistol from his boot, fired, and was killed during the combat that followed.
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.
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
Ҥ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(18) IMPROPERLY USING A FLAG OF TRUCE.—Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2009, § 950t(18).
No data.
No data.
No data.
No data.
ICRC
The ICRC Commentary on the Additional Protocols states:
The perfidious use … of emblems, signs, signals or uniforms referred to in Article 37 … of the Protocol [including the flag of truce], for the purpose of killing, injuring or capturing an adversary, constitutes a grave breach under [Article 85(3)(f) of the 1977 Additional Protocol I].
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 3499.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces the rule that “to pretend surrender” is an act of perfidy.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 409(b).
Delegates also teach that “the perfidious use of the … distinctive signs marking specifically protected persons and objects … [and of] other protected signs recognized by the law of war” constitutes a grave breach of the law of war.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 779(a) and (b).
ICRC
In a working paper on war crimes submitted in 1997 to the Preparatory Committee for the Establishment of an International Criminal Court, the ICRC included “the perfidious use of the … protective signs and signals recognized by international humanitarian law”, when committed in an international armed conflict, in its list of war crimes to be subject to the jurisdiction of the Court.
ICRC, Working paper on war crimes submitted to the Preparatory Committee for the Establishment of an International Criminal Court, New York, 14 February 1997, § 1(b)(vi).
No data.
Note: For practice concerning the improper use of the white flag of truce which does not amount to perfidy, see Rule 58.
Additional Protocol I
Article 37(1)(a) of the 1977 Additional Protocol I lists “the feigning of an intent to negotiate under a flag of truce” as an act of perfidy.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 37(1)(a). Article 37 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 103.
Additional Protocol I
Under Article 85(3) of the 1977 Additional Protocol I, “the perfidious use, in violation of Article 37, … of … protective signs recognized by the Conventions or this Protocol” is a grave breach of the 1977 Additional Protocol I. Article 85(5) adds: “Without prejudice to the application of the [1949 Geneva] Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes.”
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 85(3) 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 humanitarian negotiation” was considered as 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 a flag of truce, … 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).
Lieber Code
Article 114 of the 1863 Lieber Code states:
If it be discovered, and fairly proved, that a flag of truce has been abused for surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy.
So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially heinous offense, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as a spy.
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 114.
Lieber Code
Article 117 of the 1863 Lieber Code considers it “an act of bad faith, of infamy or fiendishness, to deceive the enemy by flags of protection”.
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 117.
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 a flag of truce.”
The Laws of Naval War Governing the Relations between Belligerents, adopted by the Institute of International Law, Oxford, 9 August 1913, Article 15.
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).
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 a flag of truce, … 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
Argentina’s Law of War Manual (1969) provides especially for the prohibition of the improper use of the flag of truce, which is considered a breach of good faith. It states, however, that the use said to be “improper” applies only in combat operations.
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 1.017.
Argentina
Argentina’s Law of War Manual (1989) gives “simulating the intent to negotiate under a flag of parlementaires” as an example of perfidy.
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.05(2)(1).
The manual also states 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) states: “Acts which constitute perfidy include feigning of … an intent to negotiate under a flag of truce.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 826(a) (naval warfare) and § 902(a) (land warfare).
Australia
Australia’s Defence Force Manual (1994) provides: “Acts which constitute perfidy include feigning of … an intent to negotiate under a flag of truce.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 703(a); see also § 910.
Australia
Australia’s LOAC Manual (2006) states: “Acts which constitute perfidy include feigning of … an intent to negotiate under a flag of truce or surrender”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.3; see also § 9.10.
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 white flag in order to approach and attack” is an act of perfidy.
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 32.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “Perfidy consists of committing a hostile act under the cover of legal protection (e.g. … feigning the intention to negotiate under the cover of the flag of truce …)”.
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. 32; see also Part I bis, pp. 46, 95 and 115.
Cameroon
Cameroon’s Instructor’s Manual (1992) states that “feigning to negotiate under the flag of parlementaires” is 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. 30, § 131.1 and p. 90, § 222; see also p. 63, § 234.
Furthermore, the manual states that “abuse of the flag of parlementaires to surprise the enemy” is also an act of perfidy. Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 149, § 531.1.
Cameroon
Cameroon’s Instructor’s Manual (2006) states that “the abuse of the flag of truce to surprise the enemy” 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 p. 183, § 494.A and p. 222, § 222.
Canada
Canada’s LOAC Manual (1999) provides: “The following are examples of perfidy if a hostile act is committed while: … feigning an intent to negotiate under a flag of truce.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 9(a) (land warfare), p. 7-2, § 17(a) (air warfare) and p. 8-11, § 81(a) (naval warfare).
The manual also states: “It is an abuse of the white flag to make use of it solely for the purpose of moving troops without interference by the adverse party.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 14-1, § 8.
The manual further states that “perfidious use of … protective signs recognized by the Geneva Conventions or [the 1977 Additional Protocol] I” is 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 (2001) states in its chapters on land warfare, air warfare and naval warfare: “The following are examples of perfidy if a hostile act is committed while: a. feigning an intent to negotiate under a flag of truce.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 603.2.a (land warfare), 706.2.a (air warfare) and 857.2.a (naval warfare).
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 … 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 (the white flag of parlementaires, for example)”.
Colombia, Normas de Derecho Internacional Humanitario, Directiva Permanente No. 017, Ministerio de Defensa Nacional, 17 August 1993, Section III(D).
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction): “The following acts are regarded as perfidy: … The misleading use of … the white flag of truce”.
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 16.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
IHL prohibits recourse to perfidy with the aim to kill, injure or capture an enemy.
Regarded as perfidy is any act which appeals to the good faith of the enemy, with the intention to deceive him, and with the aim to make him believe that he is entitled to receive, or has the obligation to give, protection provided by the rules of IHL.
The following acts are examples of perfidy:
- feigning of an intent to negotiate under a flag of truce.
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, p. 41; see also Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 48.
Croatia
Croatia’s LOAC Compendium (1991) provides that the “perfidious use of distinctive protective signs” is a grave breach 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 … the flag of truce.”
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) provides that it is unlawful to use the flag of truce to gain a military advantage over the enemy. It adds: “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 to invite the confidence of the enemy (abuse of … white flag).”
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) provides: “The recourse to perfidy is prohibited, notably the abuse of the white flag.”
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:
Using a protective sign in order to deceive the enemy and attain an operational goal constitutes an act of perfidy. In some cases, this may be a war crime. It is notably prohibited to feign an intention to negotiate under the cover of the flag of parlementaires.
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.
Moreover, the manual states: “The perfidious use of any protective sign provided for 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; see also p. 115.
Germany
Under Germany’s Soldiers’ Manual (1991), “the feigning of the intention to negotiate under a flag of truce” constitutes a perfidious act.
Germany, Taschenkarte, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, Bearbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, Zentrum Innere Führung, June 1991, p. 2.
Germany
Germany’s Military Manual (1992) provides:
Misusing the flag of truce constitutes perfidy and hence a violation of international law … The flag of truce is being misused, for instance, if soldiers approach an enemy position under the protection of the flag of truce in order to attack.
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 230; see also § 1019 (naval warfare).
The manual also states: “Grave breaches of international humanitarian law are in particular: … 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 Konflikten – Handbuch, August 1992, § 1209.
Germany
Germany’s Soldiers’ Manual (2006) states that perfidious acts are those “by which the adversary is induced to believe that there is a situation affording protection under public international law, so that he may be attacked by surprise, e.g. the feigning of … the intention to negotiate under the flag of truce.”
Germany, Druckschrift Einsatz Nr. 03, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, Erarbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, p. 2.
Greece
The Hellenic Territorial Army’s Internal Service Code (1984), as amended, provides: “It is forbidden for members of the armed forces: … To use perfidiously the white flag.”
Greece, Hellenic Territorial Army Regulation of Internal Service Code, Presidential Decree 130/1984 (Military Regulation 20-1), as amended, Article 15(h).
Greece
The Hellenic Navy’s International Law Manual (1995) provides that “the pretentious waving of a white flag in order to propose a truce” 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 “to falsely claim protected status, thereby inviting the confidence of the enemy: e.g. misuse of: … flag of truce” is an act of perfidy.
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 63.
The manual further 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.
Indonesia
Indonesia’s Military Manual (1982) provides: “It is prohibited to kill or injure the enemy by perfidy, such as … to misuse the flag of truce.”
Indonesia, The Basics of International Humanitarian Law, Legal Division of the Indonesian Armed Forces, 1982, § 103.
Israel
Referring to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states that the Israel Defense Forces (IDF) prohibit “the resort to perfidy to kill, injure or capture an adversary. Therefore, the IDF does not feign intent to … negotiate under a white flag.”
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 example of perfidy: “It is forbidden to use a white flag for an inappropriate purpose (posing as persons … seeking negotiations with a view to gaining a military advantage).”
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 56.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
It is forbidden to make false use of the white flag (pretending to surrender or to be willing to negotiate while the true intention is to obtain a military advantage) so that soldiers from the other side will not fear allowing fighter[s] to live and grant them the status of prisoner-of-war.
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 on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Under Italy’s IHL Manual (1991), 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 … the flag of truce.”
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:
Parlementaires, i.e. those who request to meet with the Commanding Officer of the enemy unit to discuss a ceasefire or to surrender, are protected by the “White flag”.
IT IS PROHIBITED to deceive the enemy by raising a white flag and then opening fire.
Italy, Manuale del Combattente, SME 1000/A/2, Stato Maggiore Esercito/Reparto Impiego delle Forze, Ufficio Dottrina, Addestramento e Regolamenti, 1998, § 247.
[emphasis in original]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 abuse of the white flag.
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 that the 1977 Additional Protocol I “gives a number of examples of treacherous behaviour: feigning intent to negotiate under the flag of parlementaires”.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IV-2.
Netherlands
The Military Handbook (1995) of the Netherlands provides: “Misuse of the white flag is treachery.”
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-36.
Netherlands
The Military Manual (2005) of the Netherlands states:
AP I [1977 Additional Protocol I] lists a number of examples of acts of perfidy:
…
- the feigning of an intent to negotiate under a flag of truce.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0414.
New Zealand
New Zealand’s Military Manual (1992) states that “the feigning of an intent to negotiate under a flag of truce” is an example of perfidy.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 502(5) (land warfare) and § 713(2) (naval warfare).
The manual also states that “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).
Nigeria
Nigeria’s Military Manual (1994) gives the following example of “perjury” (perfidy): “Feigning an intent to negotiate under a flag of truce.”
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, pp. 42 and 43, § 12(a).
Nigeria
Nigeria’s Manual on the Laws of War states: “It is forbidden to deceive the enemy by hoisting a white flag and have the enemy believe that a parlementaire is approaching them and thereby concealing an advance for attack.”
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 24.
Peru
Peru’s IHL Manual (2004) states that “the feigning of an intent to negotiate under a flag of truce” is an example of perfidy.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 27.e.(9).(a).
Peru
Peru’s IHL and Human Rights Manual (2010) states that “the feigning of an intent to negotiate under a flag of truce” is an example of perfidy.
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 28(e)(2)(a), p. 239.
Romania
Under Romania’s Soldiers’ Manual (1991), “feigning an intent to negotiate under the cover of a flag” is an act of perfidy.
Romania, Manualul Soldatului, Ghid de comportare în luptă, Asociaţia Română de Drept Umanitar (ARDU), 1991, p. 35.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
When planning and conducting combat operations it is necessary to draw a clear distinction between perfidy and ruses of war. Perfidy means committing a hostile act under the cover of a right to protection by feigning: … an intent to negotiate under a flag of truce.
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 8.
South Africa
South Africa’s LOAC Manual (1996) states that the misuse of any of the symbols of protection (including the white flag) constitutes an act of 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 white flag” 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 … misuse any of the … symbols of protection [including the white flag of truce].”
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, §§ 56(c) and 46.
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, … the white flag (flag of truce) and other internationally recognised signs and signals, … ([1977] Additional Protocol I article 38.)
- The following acts are examples of perfidy (Additional Protocol I article 37):
- To pretend an intention to negotiate under a flag of truce[.]
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 further 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 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: “The improper use of the flag of parlementaires constitutes an act of perfidy. An abuse is committed when one takes advantage of the protection of the flag to approach the enemy and attack him by surprise.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 2.6.c.(1); see also § 7.5.c.
Likewise, according the manual, “feigning the intent to negotiate under a flag of parlementaires” is regarded as an act of perfidy.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, §§ 3.3.b.(1) and 5.3.c; see also § 7.3.c.
The manual also provides: “It is prohibited to feign a protected status by inviting the confidence of the enemy: misuse of … the flag of truce.”
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).
Moreover, the manual states 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: “Improper use of a flag of truce constitutes an act of perfidy. An abuse is committed when a party to the conflict takes advantage of the protection of the flag to draw near to the enemy and launch a surprise attack.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.6.c.(1); see also § 7.5.c.
The manual further states that “the feigning of an intent to negotiate under a flag of truce” is an example of a perfidious act.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.3.b.(3); see also §§ 3.3.b.(1).(a), 5.3.c and 7.3.c.
Sweden
Sweden’s IHL Manual (1991) notes that “the feigning of an intent to negotiate under a flag of truce” is defined as perfidious conduct by Article 37 of the 1977 Additional Protocol I.
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) forbids perfidy. Thus, “it is notably prohibited … to feign a desire to negotiate by misusing the flag of parlementaires”.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 39.
As an example of “murder by treason”, the manual lists firing at the enemy while approaching them under the protection of a white flag.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 18, commentary.
The manual also considers the “perfidious use of … distinctive signs recognized by the [1949 Geneva] Conventions or [the 1977 Additional Protocol I], in violation of Article 37 [of 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).
Ukraine
Ukraine’s IHL Manual (2004) states that an example of perfidy is “the feigning of an intention to negotiate under a flag of truce”.
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.44.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958), in connection with the requirements for being granted the status of combatant, notes in particular that irregular troops “should have been warned against the employment of treachery [and] improper conduct towards flags of truce”.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 95.
The manual considers it a legitimate ruse “to utilise an informal suspension of arms for the purpose of collecting wounded and dead … to execute movements unseen by the enemy”. For instance, it notes an incident during the Russo-Japanese War of 1905, in which a group of Russians under the protection of the white flag and the red cross emblem advanced towards the Japanese army and asked for a suspension of arms to collect the wounded and the dead. It then used the occasion to withdraw completely.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 319, including footnote 1.
The manual condemns as unlawful the use of a “white flag for the purpose of making the enemy believe that a parlementaire is about to be sent when there is no such intention, and to carry out operations under the protection granted by the enemy to the pretended flag of truce”.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 416.
The manual states: “Abuse of a flag of truce constitutes gross perfidy and entitles the injured party to take reprisals or to try the offenders if captured.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 417.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) provides: “Abuse of the white flag is 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, Annex A, p. 46, § 5.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
It is forbidden to make improper use of a flag of truce. Thus, a feigned intention to negotiate or surrender with the intention of using the white flag as cover for the collection of information might amount to the war crime of perfidy whatever the consequences. It would amount to a grave breach of Additional Protocol I if it resulted in death or serious injury. A parlementaire who abuses his position in this way can be taken as a prisoner of war and tried.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 10.10.1.
United States of America
The US Field Manual (1956) states: “It is … an abuse of a flag of truce to carry out operations under the protection accorded by the enemy to it and those accompanying it.”
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, § 467.
United States of America
The US Air Force Pamphlet (1976) states:
The white flag has traditionally indicated a desire to communicate with the enemy … It raises expectations that the particular struggle is at an end or close to an end since the only proper use of the flag of truce or white flag in international law is to communicate to the enemy a desire to negotiate. Thus, the use of a flag of truce or white flag in order to deceive or mislead the enemy, or for any other purpose other than to negotiate … has long been recognized as an act of treachery … [This] expresses the customary and conventional law in this area.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 8-6(a)(2); see also § 8-3(a).
The Pamphlet also states: “In addition to the grave breaches of the Geneva Conventions of 1949, the following acts are representative of situations involving individual criminal responsibility: … treacherous request for … truce.”
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c)(3).
United States of America
The US Naval Handbook (1995) provides that it is unlawful to use the flag of truce to gain a military advantage over the enemy. It adds: “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 Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
IMPROPERLY USING A FLAG OF TRUCE.
a. Text. “Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused used a flag of truce;
(2) The accused made such use of the flag in order to feign an intention to negotiate, surrender, or otherwise suspend hostilities;
(3) The accused had no intention to negotiate, surrender, or otherwise suspend hostilities; and
(4) The conduct took place in the context of and was associated with armed conflict.
c. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(18), p. IV-14.
United States of America
The US Naval Handbook (2007) states that “use of the white flag to gain a military advantage over the enemy is unlawful”.
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.
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
IMPROPERLY USING A FLAG OF TRUCE.
a. Text. “Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused used a flag of truce;
(2) The accused made such use of the flag in order to feign an intention to negotiate, surrender, or other wise suspend hostilities;
(3) The accused had no intention to negotiate, surrender, or otherwise suspend hostilities; and
(4) The conduct took place in the context of and was associated with hostilities.
c. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(18), p. IV-15.
The manual also states: “One may commit an act of treachery or perfidy by, for example, feigning an intent to negotiate under a flag of truce or a surrender”.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(17)(c)(4), p. IV-15.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states that “feigning an intention to negotiate under a flag of truce” is an act of perfidy.
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 104(1).
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 “improper use of a flag of truce … in order to feign an intention to negotiate when there is no such intention on the part of the perpetrator … [and which] results in deaths or serious personal injury”, in international armed conflicts.
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.41.
Australia
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to serious war crimes that are committed in the course of an international armed conflict:
War crime – improper use of a flag of truce
A person (the perpetrator) commits an offence if:
(a) the perpetrator uses a flag of truce; and
(b) the perpetrator uses the flag in order to feign an intention to negotiate when there is no such intention on the part of the perpetrator; and
(c) the perpetrator knows of, or is reckless as to, the illegal nature of such use of the flag; and
(d) the perpetrator’s conduct results in death or serious personal injury; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.41, p. 329.
Azerbaijan
Azerbaijan’s Criminal Code (1999) provides that “the misuse of the white flag, … which as a result caused death or serious injury to body of a victim,” constitutes a war crime in international and non-international armed conflicts.
Azerbaijan, Criminal Code, 1999, Article 119(2).
Canada
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides that “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).
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).
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 … the white flag of parlementaires”.
Colombia, Penal Code, 2000, Article 143.
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).
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 any abuse of the white flag, with intent to prepare or to commit hostile acts.
Ethiopia, Penal Code, 1957, Article 294(b).
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, in particular the white flag, 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 flag of truce … 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 … 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).
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 flag of truce, … thereby causing a person’s death or serious injury”.
Germany, Law Introducing the International Crimes Code, 2002, Article 1, § 10(2).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that grave breaches of the 1977 Additional Protocol I are punishable offences.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 3(1).
The Act adds that any “minor breach” of the 1977 Additional Protocol I, including violations of Article 37(1), is also a punishable offence.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Mali
Under Mali’s Penal Code, “using the flag of parlementaires … 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).
Myanmar
Myanmar’s Defence Services Act (1959) punishes any person who “treacherously … sends a flag of truce to the enemy”.
Myanmar, Defence Services Act, 1959, Section 32(f).
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).
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 white flag … 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.
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 a flag of truce … 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 Royal Ordinance for the Armed Forces (1978) provides: “The combatant … shall not display treacherously the white flag.”
Spain, Royal Ordinance for the Armed Forces, 1978, Article 138.
Spain
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict … uses … in a perfidious manner the flag of parlementaires”.
Spain, Penal Code, 1995, Article 612(6).
Sweden
Under Sweden’s Penal Code (1962), as amended in 1998, misuse of flags of parlementaires 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).
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).
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).
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
Ҥ 950v. Crimes triable by military commissions
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(18) IMPROPERLY USING A FLAG OF TRUCE.—Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2629, § 950v(b)(18).
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
Ҥ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(18) IMPROPERLY USING A FLAG OF TRUCE.—Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, … or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2009, § 950t(18).
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).
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.
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.
United Kingdom of Great Britain and Northern Ireland
A training video on IHL produced by the UK Ministry of Defence emphasizes that it constitutes treachery to fire under the cover of protection of the flag of truce.
United Kingdom, Ministry of Defence, Training Video: The Geneva Conventions, 1986, Report on UK Practice, 1997, Chapter 2.2.
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 an intent … to negotiate under a flag of truce.”
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.
No data.
No data.
No data.
No data.
ICRC
The ICRC Commentary on the Additional Protocols states:
The perfidious use … of emblems, signs, signals or uniforms referred to in Article 37 … of the Protocol [among which the flag of truce], for the purpose of killing, injuring or capturing an adversary, constitutes a grave breach under [Article 85(3)(f) of the 1977 Additional Protocol I].
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 3499.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “to pretend an intent to negotiate under a flag of truce” is an act of perfidy.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 409(a).
Delegates also teach that “the perfidious use of the … distinctive signs marking specifically protected persons and objects … [and of] other protected signs recognized by the law of war” constitutes a grave breach of the law of war.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 779(a) and (b).
ICRC
In a working paper on war crimes submitted in 1997 to the Preparatory Committee for the Establishment of an International Criminal Court, the ICRC included “the perfidious use of the … protective signs and signals recognized by international humanitarian law”, when committed in an international armed conflict, in its list of war crimes to be subject to the jurisdiction of the Court.
ICRC, Working paper on war crimes submitted to the Preparatory Committee for the Establishment of an International Criminal Court, New York, 14 February 1997, § 1(b)(vi).
No data.
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 Konflikten – Handbuch, 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.
No data.
No data.
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 … [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.
Note: For practice concerning the improper use of the United Nations emblem or uniform which does not amount to perfidy, see Rule 60.
Additional Protocol I
Article 37(1)(d) of the 1977 Additional Protocol I lists “the feigning of protected status by the use of signs, emblems or uniforms of the United Nations” as an act of perfidy.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 37(1)(d). Article 37 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 103.
Additional Protocol I
Under Article 85(3)(f) of the 1977 Additional Protocol I, “the perfidious use, in violation of Article 37, of … protective signs recognized by the Geneva Conventions or this Protocol” is a grave breach of the 1977 Additional Protocol I. Article 85(5) adds: “Without prejudice to the application of the [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.
ICC Statute
Under Article 8(2)(b)(vii) of the 1998 ICC Statute, “[m]aking improper use … of the flag or of the military insignia and uniform … of the United Nations, … 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).
San Remo Manual
Paragraph 110(d) of the 1994 San Remo Manual provides: “Warships and auxiliary vessels … are prohibited … at all times from actively simulating the status of … vessels protected by the United Nations flag.” Paragraph 111(a) states: “Perfidious acts include the launching of an attack while feigning … protected United Nations 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, §§ 110(d) and 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 … 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).
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 flag or of the military insignia and uniform … of the United Nations, … 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
Argentina’s Law of War Manual (1989) provides that it is an example of perfidy “to make use of the signs, emblems or uniforms of the United Nations … so as to simulate a protected status”.
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.05(2)(4).
The manual adds 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) states: “Acts which constitute perfidy include feigning of … protected status by the use of protective symbols, signs, emblems or uniforms of the United Nations.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 826(d) (naval warfare) and § 902(d) (land warfare).
Australia
Australia’s Defence Force Manual (1994) provides: “Acts which constitute perfidy include feigning of … protected status by the use of protective symbols, signs, emblems or uniforms of the United Nations.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 703(d) (land warfare); see also §§ 635(d) and 636(a) (naval warfare).
Australia
Australia’s LOAC Manual (2006) states: “Acts which constitute perfidy include feigning of … protected status by the use of protective symbols, signs, emblems or uniforms of the United Nations (UN)”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.3.
In its chapter on “Maritime Operations”, the manual states that warships and auxiliary vessels are prohibited at all times from actively simulating the status of “vessels protected by the United Nations (UN) flag”.
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: … UN status”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 6.36.
In its chapter on “Compliance”, the manual 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) lists “feigning to have protected status by utilizing the signs, emblems or uniforms of the United Nations” as an example of perfidy.
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 84.
Cameroon
Cameroon’s Instructor’s Manual (1992) provides that “feigning having a protected status by using signs, emblems or uniforms of the United Nations” is an example of perfidy.
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, pp. 63 and 64, § 234.
Cameroon
Cameroon’s Instructor’s Manual (2006) states that “feigning having protected status by using the signs, emblems or uniforms of the United Nations” constitutes an “act of perfidy”.
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 183, § 494.A.
Canada
Canada’s LOAC Manual (1999) provides: “The following are examples of perfidy if a hostile act is committed while: … feigning protected status by the use of signs, emblems or uniforms of the United Nations.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 9(d) (land warfare); see also p. 7-2, § 17(d) (air warfare) and p. 8-11, § 81(e) (naval warfare).
The manual also considers it an act of perfidy in air warfare if a hostile act is committed while “using false markings on military aircraft such as the markings of … United Nations aircraft”.
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 states that “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 (2001) states in its chapters on land warfare, air warfare and naval warfare: “The following are examples of perfidy if a hostile act is committed while: … feigning protected status by the use of signs, emblems or uniforms of the United Nations”.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 603.2.d (land warfare), 706.2.d (air warfare) and 857.2.e (naval warfare).
In the chapter on air warfare, the manual further 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 … United Nations 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 … 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) considers “the perfidious use of … protective signs recognized under the law of war” as a punishable offence.
Colombia, Normas de Derecho Internacional Humanitario, Directiva Permanente No. 017, Ministerio de Defensa Nacional, 17 August 1993, Section III(D).
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders):
I.2.1. Perfidy
It is prohibited to kill, injure or capture an adversary by resort to perfidy. …
…
Here are some examples of perfidy; if an act of hostility is made by feigning:
…
d. protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 48.
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.
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.
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 Manual (2001) provides: “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.
The manual specifies that the use of UN emblems and uniforms with a view to commit hostile acts is criminalized.
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 115.
Generally, the manual considers that “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; see also p. 115.
Germany
Germany’s Military Manual (1992) provides: “Grave breaches of international humanitarian law are in particular: … 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 Konflikten – Handbuch, August 1992, § 1209.
Greece
The Hellenic Territorial Army’s Internal Service Code (1984), as amended, provides: “It is forbidden for members of the armed forces: … To use perfidiously … emblems of international organizations.”
Greece, Hellenic Territorial Army Regulation of Internal Service Code, Presidential Decree 130/1984 (Military Regulation 20-1), as amended, Article 15(h).
Greece
The Hellenic Navy’s International Law Manual (1995) provides that “the misuse of emblems or uniforms of an international organization” constitutes perfidy.
Greece, International Law Manual, Hellenic Navy General Staff, Directorate A2, Division IV, 1995, Chapter 5, § 4.
Hungary
Hungary’s Military Manual (1992) gives as an example of perfidy “to falsely claim protected status, thereby inviting the confidence of the enemy”, inter alia, by using the UN flag.
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 or uniforms.”
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) states, as an example of perfidious conduct: “It is prohibited to pose as U.N. … personnel or use [UN] uniform, flag and emblems.”
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 56.
Israel
Israel’s Manual on the Rules of Warfare (2006) states: “It is also forbidden to pretend to be members of the United Nations Organization … as it is forbidden to use [UN] uniforms, flag or symbols”.
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 on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Under Italy’s IHL Manual (1991), 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.
Protective emblems are used for:
…
-UN personnel, equipment and facilities.
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]Netherlands
The Military Manual (1993) of the Netherlands states that the 1977 Additional Protocol I “gives a number of examples of treacherous behaviour: feigning to possess a protected position by using signs, emblems or uniforms of the United Nations”.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IV-2.
Netherlands
The Military Manual (2005) of the Netherlands states:
AP I [1977 Additional Protocol I] lists a number of examples of acts of perfidy:
…
- the feigning of protected status by the use of signs, emblems or uniforms of the United Nations.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0414.
New Zealand
New Zealand’s Military Manual (1992) provides: “The following acts are examples of perfidy: … the feigning of protected status by the use of signs, emblems or uniforms of the United Nations.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 502(5) (land warfare) and § 713(2) (naval warfare); see also § 1905.
The manual also states: “The use of false markings on military aircraft such as the markings of … United Nations 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 further states that “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).
Nigeria
Nigeria’s Military Manual (1994) gives the following example of “perjury” (perfidy): “feigning protection status by the use of signs, emblems or uniforms of the UN”.
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, pp. 42 and 43, § 12(e).
Peru
Peru’s IHL Manual (2004) states that “the feigning of protected status by the use of signs, emblems or uniforms of the United Nations” is an example of perfidy.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 27.e.(9).(e).
The manual further states that the “perfidious use of … 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).
In the context of armed conflict at sea, the manual states: “Perfidious acts include the launching of an attack while feigning: … protected United Nations status.”
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 135.c.(1).
Peru
Peru’s IHL and Human Rights Manual (2010) states that “the feigning of status of a protected person by using signs, emblems or uniforms of the United Nations” is an example of perfidy.
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 28(e)(2)(e), p. 239.
The manual further 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, § 74(f)(5), p. 273.
In the context of armed conflict at sea, the manual states: “Perfidious acts include the launching of an attack while feigning: … protected United Nations status.”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 126(c)(2), p. 319.
Romania
Under Romania’s Soldiers’ Manual (1991), “feigning the status of a protected person by abusing the signs and emblems of … the UN” is an act of perfidy.
Romania, Manualul Soldatului, Ghid de comportare în luptă, Asociaţia Română de Drept Umanitar (ARDU), 1991, p. 35.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
When planning and conducting combat operations it is necessary to draw a clear distinction between perfidy and ruses of war. Perfidy means committing a hostile act under the cover of a right to protection by feigning:
…
- a protected status by the use of emblems, signs and signals, or uniforms of the United Nations.
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 8.
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.
South Africa
South Africa’s LOAC Manual (1996) provides: “Grave breaches of the law of war are regarded as war crimes.”
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, § 41.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
- Perfidy
…
- The following actions are perfidious and therefore prohibited:
…
- The use of the distinctive emblem of the United Nations without authorisation. ([1977] Additional Protocol I article38.)
…
- The following acts are examples of perfidy (Additional Protocol I article 37):
…
- To pretend having protected status by the use of flags, emblems or uniforms of the United Nations or of neutral States; etc.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 3, pp. 186–187.
The manual also states:
4.1 LOAC [law of armed conflict]in Naval Warfare
…
Deception, (Ruses of War) and Perfidy
- Military and auxiliary vessels are at all times prohibited from feigning protective, civilian or neutral status. Such actions will be [p]erfidy. Eg, the launching of an attack while feigning to be a neutral vessel or to have protected United Nations status or while feigning surrender or distress by, eg, sending a distress signal or by the crew taking to life rafts.
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) considers “feigning to possess a protected status by using the signs, emblems or uniforms of the United Nations” as an example of perfidy.
Spain, Orientaciones. El Derecho de los Conflictos Armados
, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 3.3.b.(1); see also § 5.3.c.
The manual 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 also states that it is a grave breach of the law of war 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) prohibits the act of perfidy and states that “the feigning of protected status by the use of signs, emblems or uniforms of the United Nations” is an example of such an act.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.3.b.(3); see also §§ 3.3.b.(1).(d) and 5.3.c.
The manual also states that it is a war crime to make “[deliberate] misuse of … recognised 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) emphasizes that, pursuant to Article 37 of the 1977 Additional Protocol I, “the feigning of protected … status … of a member of the armed forces … of the United Nations” constitutes perfidious conduct.
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], in violation of Article 37 [of 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 Legal Bases for Conduct during an Engagement (2005) states:
15.2 Prohibited methods of warfare
…
224 Wearing enemy uniforms or feigning protected status by using the insignia, emblems or uniforms of the United Nations or of neutral States or States that are not party to the conflict is prohibited.
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 224.
Ukraine
Ukraine’s IHL Manual (2004) states that an example of perfidy is “the feigning of protected status by the use of signs, emblems or uniforms of the United Nations”.
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.44.
The manual further states: “Perfidious use of distinctive emblems (insignia or signals) of persons and objects protected by the laws of war shall constitute serious [violations of international humanitarian law].”
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.8.7.
United Kingdom of Great Britain and Northern Ireland
According to the UK LOAC Manual (2004), “the feigning of protected status by the use of signs, emblems or uniforms of the United Nations” is an example of prohibited perfidy, “if done with intent to betray the enemy’s confidence”.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.9.2.
In its chapter on maritime warfare, the manual states that launching an attack while feigning protected United Nations status is an example of perfidy.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 13.83.
In its chapter on the application of the law of armed conflict during peace-support operations, the manual states:
The parties to an armed conflict are prohibited to make use of the emblem of the United Nations except as authorized by the United Nations. In addition, it is prohibited to kill, injure or capture an adversary by feigning protected status by the use of signs, emblems or uniforms of the United Nations and to do so constitutes the war crime of perfidy.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 14.13.
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, states: “One may commit an act of treachery or perfidy by, for example … feigning a protective status by the use of signs, emblems, or uniforms of the United Nations”.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(17)(c)(4), p. IV-15.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states that feigning protected status by using UN symbols, emblems, signs or uniforms is an act of perfidy.
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 104(3).
Australia
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides: “A person who, in Australia or elsewhere, commits a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence.”
Australia, Geneva Conventions Act, 1957, as amended in 2002, Section 7(1).
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act (1995).
Australia
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “improper use of a flag, insignia or uniform of the United Nations … [when] the perpetrator’s conduct results in death or serious personal injury”, in international armed conflicts.
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.43.
Azerbaijan
Azerbaijan’s Criminal Code (1999) provides that “the misuse of … the flag, the sign or clothes of the United Nations, … which as a result caused death or serious injury to body of a victim” constitutes a war crime in international and non-international armed conflicts.
Azerbaijan, Criminal Code, 1999, Article 119(2).
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).
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).
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 … the flag of the United Nations or of other intergovernmental organizations”.
Colombia, Penal Code, 2000, Article 143.
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).
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
Under Ethiopia’s Penal Code (1957), it is a punishable offence to abuse 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’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.
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 flag or of the military insignia and uniform … of the United Nations … 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 … 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).
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 flag … or of the uniform … of the United Nations, thereby causing a person’s death or serious injury”.
Germany, Law Introducing the International Crimes Code, 2002, Article 1, § 10(2).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that grave breaches of the 1977 Additional Protocol I are punishable offences.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 3(1).
It adds that any “minor breach” of the 1977 Additional Protocol I, including violations of Article 37(1), is also a punishable offence. Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
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).
Lithuania
Lithuania’s Criminal Code (1961), as amended in 1998, considers that the improper use of emblems of international organizations is a war crime.
Lithuania, Criminal Code, 1961, as amended in 1998, Article 344.
Mali
Under Mali’s Penal Code (2001), “using … the flag or military insignia or uniform … of the United Nations Organization, … 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).
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).
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 flag … of the United Nations 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.
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 a flag, insignia or uniform of the United Nations … 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 Royal Ordinance for the Armed Forces (1978) states: “The combatant … shall not display treacherously the flag … of international organizations.”
Spain, Royal Ordinance for the Armed Forces, 1978, Article 138.
Spain
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict … uses … in a perfidious manner the flag, uniform, insignia or distinctive emblem … of the United Nations”.
Spain, Penal Code, 1995 Article 612(5).
Sweden
Under Sweden’s Penal Code (1962), as amended in 1998, the misuse of the insignia of the UN 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)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).
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).
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 1997, 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 1997, 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.
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 UN) 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]UN Security Council
In a resolution adopted in 2007 on reports of the Secretary-General on the Sudan, the UN Security Council demanded that “there should be no aerial bombings and the use of United Nations markings on aircraft used in such attacks”.
UN Security Council, Res. 1779, 28 September 2007, preamble, voting record: 15-0-0.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (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 780 (1992) stated:
If it can be established that named individuals in the [Bosnian Serb army] used or authorized the use of vehicles which carried UN markings, this could be viewed as perfidious conduct and, if persons were killed or wounded as a result of this action, a grave breach of [the 1977 Additional Protocol I] could be established.
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.
No data.
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts
At the CDDH, Committee III reported:
The misuse of United Nations signs, emblems or uniforms would be perfidious in cases where the United Nations and its personnel enjoyed a neutral protected status, but not, of course, in situations where the United Nations forces were involved as combatants in a conflict.
CDDH, Official Records, Vol. XV, CDDH/III/236/Rev.1, 21 April-11 June 1976, p. 382, § 18.
No data.
ICRC
The ICRC Commentary on the Additional Protocols states:
The perfidious use … of emblems, signs, signals or uniforms referred to in Article 37 … of the Protocol [among which the UN emblem], for the purpose of killing, wounding or capturing an adversary, constitutes a grave breach under [Article 85(3)(f) of the 1977 Additional Protocol I].
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 3499.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “to pretend having protected status by the use of flags, emblems or uniforms of the United Nations” is an act of perfidy.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 409(e).
Delegates also teach that “the perfidious use of the … distinctive signs marking specifically protected persons and objects … [and of] other protected signs recognized by the law of war” constitutes a grave breach of the law of war.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 779(a) and (b).
ICRC
In a working paper on war crimes submitted in 1997 to the Preparatory Committee for the Establishment of an International Criminal Court, the ICRC included “the perfidious use of the … protective signs and signals recognized by international humanitarian law”, when committed in an international armed conflict, in its list of war crimes to be subject to the jurisdiction of the Court.
ICRC, Working paper on war crimes submitted to the Preparatory Committee for the Establishment of an International Criminal Court, New York, 14 February 1997, § 1(b)(vi).
No data.
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.