Practice Relating to Rule 65. Perfidy

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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.  [emphasis in original]

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.  [emphasis in original]

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).  [emphasis in original]

The principle of limitation determines permitted means and prohibited means.

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- What are the prohibited means and methods of warfare?

NB:

Perfidy is different from a ruse of war and is condemned by the law of war. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

The underlying idea of this body of law [i.e. IHL] is to humanize war. The three main principles established to this end are:

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. 

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.  

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. 

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. 

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]. 

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. 

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. 

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.)

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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. 

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. 

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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 … . 

1.2.44. “Perfidy” means hostile actions under cover of the right to protection in order to achieve military advantage.

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1.3.2. The following methods of warfare shall be prohibited:

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.

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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. 

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.” 

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. 

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. 

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. 

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. 

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. 

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. 

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]. 

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]. 

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. 

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. 

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. 

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. 

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). 

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.

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The accused’s position is stated to be that this Court has no jurisdiction to try him.

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… 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. …

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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.

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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. …

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… 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.

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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.

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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. …

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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

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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.

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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. …

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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].

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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. 

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.

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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:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

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. 

Even in war not everything is allowed. Various means and methods are prohibited, including 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. 

Perfidy is prohibited by the law of war. Perfidy is defined in Article 37(1) of [the 1977 Additional Protocol I] as:

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. 

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. 

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. 

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. 

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. 

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”. 

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.  [emphasis in original]

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.” 

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). 

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. 

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. 

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. 

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.

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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.

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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.

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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. 

The Hague Regulations 1907 are now recognized as part of customary law. Those regulations provide that the following acts are “especially forbidden”:

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. 

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. 

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. 

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. 

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.”

(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. 

(1) A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for life.

(2) A person (the perpetrator) commits an offence if:

Penalty for a contravention of this subsection: Imprisonment for 25 years. 

(1) A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for life.

(2) A person (the perpetrator) commits an offence if:

Penalty for a contravention of this subsection: Imprisonment for 25 years. 

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 … :

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 … :

(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. 

[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:

…

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:

“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:

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. 

Whoever commits a war crime is punished with life imprisonment.

War crimes are:

The provisions of paragraphs 3 and 4 of the above article 139 do not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. 

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]. 

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]. 

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. 

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. 

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. 

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:

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:

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:

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:

…

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:

(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. 

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.

…

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:

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.

…

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:

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:

Ҥ 950t. Crimes triable by military commission

“The following offenses shall be triable by military commission under this chapter at any time without limitation:

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. 

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). 

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. 

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:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

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. 

…

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.  [footnotes in original omitted]

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. 

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. 

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. 

… The following acts are regarded as perfidy:

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:

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. 

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. 

AP I [1977 Additional Protocol I] lists a number of examples of acts of perfidy:

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. 

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. 

…

- 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. 

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. 

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. 

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. 

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]. 

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]. 

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. 

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. 

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:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

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. 

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. 

… 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:

[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. 

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. 

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. 

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.  [emphasis in original]

AP I [1977 Additional Protocol I] lists a number of examples of acts of perfidy:

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. 

…

- 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. 

…

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 … . 

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. 

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. 

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. 

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. 

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. 

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.”

c. Maximum punishment. Confinement for 20 years. 

A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for life. 

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. 

Whoever commits a war crime is punished with life imprisonment.

War crimes are:

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]. 

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]. 

Intentional breach of the provisions of … international humanitarian law during armed conflicts between states or within a state, in particular:

shall be punished by imprisonment for a term of ten to fifteen years. 

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. 

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]. 

(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 –

(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 –

…

(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:

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. 

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:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

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. 

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[.] 

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. 

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. 

Ҥ 950t. Crimes triable by military commission

“The following offenses shall be triable by military commission under this chapter at any time without limitation:

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]. 

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. 

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 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. 

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. 

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. 

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.  [emphasis in original]

AP I [1977 Additional Protocol I] lists a number of examples of acts of perfidy:

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. 

…

- [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:

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. 

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. 

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. 

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.”

c. Maximum punishment. Confinement for 20 years. 

A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for life. 

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. 

Whoever commits a war crime is punished with life imprisonment.

War crimes are:

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]. 

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]. 

Whoever intentionally:

is punishable with simple imprisonment, or, in cases of exceptional gravity, with rigorous imprisonment not exceeding five years. 

Intentional breach of the provisions of … international humanitarian law during armed conflicts between states or within a state, in particular:

shall be punished by imprisonment for a term of ten to fifteen years. 

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. 

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]. 

(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 –

(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 –

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:

Ҥ 950t. Crimes triable by military commission

“The following offenses shall be triable by military commission under this chapter at any time without limitation:

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. 

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:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

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. 

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[.] 

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]. 

Warships and auxiliary vessels … are prohibited … at all times from actively simulating the status of:

Warships and auxiliary vessels … are prohibited … at all times from actively simulating the status of:

Perfidious acts include the launching of an attack while feigning:

• 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. 

Perfidious acts also include the launching of an attack while feigning:

The perfidious use of the following signs and signals constitutes a grave breach [of IHL]:

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. 

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. 

Lesson 1. Basic notions of IHL

… The following acts are regarded as perfidy:

…

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:

I.2 Sanctions

…

In Côte d’Ivoire, the Penal Code has provided for the repression of certain violations:

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:

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]:

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. 

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). 

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.  [emphasis in original]

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). 

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. 

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:

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. 

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:

The emblems are misused when used by:

Note that these actions are considered perfidy, a war crime that is punishable. If witnessed, it should be reported to your superior.  [emphasis in original]

…

- 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. 

…

- [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:

Additional Protocol I extends the definition of grave breaches to include the following:

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. 

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. 

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. 

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. 

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.  

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. 

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. 

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 … :

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 … :

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. 

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. 

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. 

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. 

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. 

Whoever commits a war crime is punished with life imprisonment.

War crimes are:

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]. 

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]. 

Whoever intentionally:

is punishable with simple imprisonment, or, in cases of exceptional gravity, with rigorous imprisonment not exceeding five years. 

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. 

Intentional breach of the provisions of … international humanitarian law during armed conflicts between states or within a state, in particular:

shall be punished by imprisonment for a term of ten to fifteen years. 

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. 

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. 

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. 

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]. 

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:

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:

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. 

(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 –

(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 –

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. 

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. 

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. 

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. 

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. 

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:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

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. 

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:

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. 

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[.] 

…

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.  [footnotes in original omitted]

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. 

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:

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:

AP I [1977 Additional Protocol I] lists a number of examples of acts of perfidy:

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 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:

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:

…

- 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. 

…

- [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:

…

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.