Section E. Simulation of an intention to negotiate under the white flag of truce
Note: For practice concerning the improper use of the white flag of truce which does not amount to perfidy, see Rule 58.
Additional Protocol I
Article 37(1)(a) of the 1977 Additional Protocol I lists “the feigning of an intent to negotiate under a flag of truce” as an act of perfidy.
Additional Protocol I
Under Article 85(3) of the 1977 Additional Protocol I, “the perfidious use, in violation of Article 37, … of … protective signs recognized by the Conventions or this Protocol” is a grave breach of the 1977 Additional Protocol I. Article 85(5) adds: “Without prejudice to the application of the [1949 Geneva] Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes.”
Additional Protocol II (draft)
Article 21(1) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided that “when carried out in order to commit or resume hostilities, … the feigning … of a humanitarian negotiation” was considered as perfidy.
However, this proposal was deleted from draft Article 21 adopted in Committee III of the CDDH.
ICC Statute
Under Article 8(2)(b)(vii) of the 1998 ICC Statute, “[m]aking improper use of a flag of truce, … resulting in death or serious personal injury” is a war crime in international armed conflicts.
Lieber Code
Article 114 of the 1863 Lieber Code states:
If it be discovered, and fairly proved, that a flag of truce has been abused for surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy.
So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially heinous offense, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as a spy.
Lieber Code
Article 117 of the 1863 Lieber Code considers it “an act of bad faith, of infamy or fiendishness, to deceive the enemy by flags of protection”.
Oxford Manual of Naval War
Article 15 of the 1913 Oxford Manual of Naval War states: “Methods … which involve treachery are forbidden. Thus it is forbidden … to make improper use of a flag of truce.”
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Pursuant to Article 20(b)(v) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, “[t]he perfidious use of … recognized protective signs” is a war crime.
UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(b)(vii), “[m]aking improper use of a flag of truce, … resulting in death or serious personal injury” is a war crime in international armed conflicts.
Argentina
Argentina’s Law of War Manual (1969) provides especially for the prohibition of the improper use of the flag of truce, which is considered a breach of good faith. It states, however, that the use said to be “improper” applies only in combat operations.
Argentina
Argentina’s Law of War Manual (1989) gives “simulating the intent to negotiate under a flag of parlementaires” as an example of perfidy.
The manual also states that “the perfidious use … of … recognized protective signs” is a grave breach of the 1977 Additional Protocol I and a war crime.
Australia
Australia’s Commanders’ Guide (1994) states: “Acts which constitute perfidy include feigning of … an intent to negotiate under a flag of truce.”
Australia
Australia’s Defence Force Manual (1994) provides: “Acts which constitute perfidy include feigning of … an intent to negotiate under a flag of truce.”
Australia
Australia’s LOAC Manual (2006) states: “Acts which constitute perfidy include feigning of … an intent to negotiate under a flag of truce or surrender”.
The manual also states that the 1977 Additional Protocol I extends the definition of grave breaches to include “the perfidious use of the distinctive emblem of the Red Cross, Red Crescent, Red Crystal and other Red Cross societies, or of other protective signs recognised by the Conventions or the Protocol”.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states that “using the white flag in order to approach and attack” is an act of perfidy.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “Perfidy consists of committing a hostile act under the cover of legal protection (e.g. … feigning the intention to negotiate under the cover of the flag of truce …)”.
Cameroon
Cameroon’s Instructor’s Manual (1992) states that “feigning to negotiate under the flag of parlementaires” is a perfidious act.

Furthermore, the manual states that “abuse of the flag of parlementaires to surprise the enemy” is also an act of perfidy.
Cameroon
Cameroon’s Instructor’s Manual (2006) states that “the abuse of the flag of truce to surprise the enemy” constitutes an “act of perfidy”.
Canada
Canada’s LOAC Manual (1999) provides: “The following are examples of perfidy if a hostile act is committed while: … feigning an intent to negotiate under a flag of truce.”
The manual also states: “It is an abuse of the white flag to make use of it solely for the purpose of moving troops without interference by the adverse party.”
The manual further states that “perfidious use of … protective signs recognized by the Geneva Conventions or [the 1977 Additional Protocol] I” is a grave breach of the 1977 Additional Protocol I and a war crime.
Canada
Canada’s LOAC Manual (2001) states in its chapters on land warfare, air warfare and naval warfare: “The following are examples of perfidy if a hostile act is committed while: a. feigning an intent to negotiate under a flag of truce.”
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual identifies as a grave breach of the 1977 Additional Protocol I and a war crime the “perfidious use of … protective signs recognized by the Geneva Conventions or [the 1977 Additional Protocol] I”.
Chad
Chad’s Instructor’s Manual (2006) states that the “perfidious use of protective signs” is a grave breach of the 1977 Additional Protocol I and, as such, a war crime.
Colombia
Colombia’s Directive on IHL (1993) punishes “the perfidious use of … protective signs recognized under the law of war (the white flag of parlementaires, for example)”.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction): “The following acts are regarded as perfidy: … The misleading use of … the white flag of truce”.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
IHL prohibits recourse to perfidy with the aim to kill, injure or capture an enemy.
Regarded as perfidy is any act which appeals to the good faith of the enemy, with the intention to deceive him, and with the aim to make him believe that he is entitled to receive, or has the obligation to give, protection provided by the rules of IHL.
The following acts are examples of perfidy:
- feigning of an intent to negotiate under a flag of truce.
Croatia
Croatia’s LOAC Compendium (1991) provides that the “perfidious use of distinctive protective signs” is a grave breach and a war crime.
Croatia
Croatia’s Commanders’ Manual (1992) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: misuse of … the flag of truce.”
Ecuador
Ecuador’s Naval Manual (1989) provides that it is unlawful to use the flag of truce to gain a military advantage over the enemy. It adds: “Misuse of protective signs, signals and symbols … in order to injure, kill, or capture the enemy constitutes an act of perfidy.”
France
France’s LOAC Summary Note (1992) prohibits perfidy and states: “It is forbidden to feign a protected status to invite the confidence of the enemy (abuse of … white flag).”
The Summary Note also states that the “perfidious use of protected signs and signals” is a grave breach of the law of war and a war crime.
France
France’s LOAC Teaching Note (2000) provides: “The recourse to perfidy is prohibited, notably the abuse of the white flag.”
France
France’s LOAC Manual (2001) states:
Using a protective sign in order to deceive the enemy and attain an operational goal constitutes an act of perfidy. In some cases, this may be a war crime. It is notably prohibited to feign an intention to negotiate under the cover of the flag of parlementaires.
Moreover, the manual states: “The perfidious use of any protective sign provided for by international law constitutes a war crime.”
Germany
Under Germany’s Soldiers’ Manual (1991), “the feigning of the intention to negotiate under a flag of truce” constitutes a perfidious act.
Germany
Germany’s Military Manual (1992) provides:
Misusing the flag of truce constitutes perfidy and hence a violation of international law … The flag of truce is being misused, for instance, if soldiers approach an enemy position under the protection of the flag of truce in order to attack.
The manual also states: “Grave breaches of international humanitarian law are in particular: … perfidious … use of recognized protective signs.”
Germany
Germany’s Soldiers’ Manual (2006) states that perfidious acts are those “by which the adversary is induced to believe that there is a situation affording protection under public international law, so that he may be attacked by surprise, e.g. the feigning of … the intention to negotiate under the flag of truce.”
Greece
The Hellenic Territorial Army’s Internal Service Code (1984), as amended, provides: “It is forbidden for members of the armed forces: … To use perfidiously the white flag.”
Greece
The Hellenic Navy’s International Law Manual (1995) provides that “the pretentious waving of a white flag in order to propose a truce” constitutes perfidy.
Hungary
Hungary’s Military Manual (1992) states that “to falsely claim protected status, thereby inviting the confidence of the enemy: e.g. misuse of: … flag of truce” is an act of perfidy.
The manual further states that the “perfidious use of distinctive protective signs” is a grave breach of the law of war and a war crime.
Indonesia
Indonesia’s Military Manual (1982) provides: “It is prohibited to kill or injure the enemy by perfidy, such as … to misuse the flag of truce.”
Israel
Referring to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states that the Israel Defense Forces (IDF) prohibit “the resort to perfidy to kill, injure or capture an adversary. Therefore, the IDF does not feign intent to … negotiate under a white flag.”
Israel
Israel’s Manual on the Laws of War (1998) gives the following example of perfidy: “It is forbidden to use a white flag for an inappropriate purpose (posing as persons … seeking negotiations with a view to gaining a military advantage).”
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
It is forbidden to make false use of the white flag (pretending to surrender or to be willing to negotiate while the true intention is to obtain a military advantage) so that soldiers from the other side will not fear allowing fighter[s] to live and grant them the status of prisoner-of-war.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Under Italy’s IHL Manual (1991), grave breaches of international conventions and protocols, including “the perfidious use … of international protective signs”, constitute war crimes.
Italy
Italy’s LOAC Elementary Rules Manual (1991) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: misuse of … the flag of truce.”
Italy
Italy’s Combatant’s Manual (1998) states:
Parlementaires, i.e. those who request to meet with the Commanding Officer of the enemy unit to discuss a ceasefire or to surrender, are protected by the “White flag”.
IT IS PROHIBITED to deceive the enemy by raising a white flag and then opening fire.

[emphasis in original]
Madagascar
Madagascar’s Military Manual (1994) states that “it is prohibited to feign a protected status thereby inviting the confidence of the enemy”, such as abuse of the white flag.
Netherlands
The Military Manual (1993) of the Netherlands states that the 1977 Additional Protocol I “gives a number of examples of treacherous behaviour: feigning intent to negotiate under the flag of parlementaires”.
Netherlands
The Military Handbook (1995) of the Netherlands provides: “Misuse of the white flag is treachery.”
Netherlands
The Military Manual (2005) of the Netherlands states:
AP I [1977 Additional Protocol I] lists a number of examples of acts of perfidy:
…
- the feigning of an intent to negotiate under a flag of truce.
New Zealand
New Zealand’s Military Manual (1992) states that “the feigning of an intent to negotiate under a flag of truce” is an example of perfidy.
The manual also states that “perfidious use of … protective signs recognised by the [1949 Geneva] Conventions or [the 1977 Additional Protocol I]” constitutes a grave breach of the 1977 Additional Protocol I and a war crime.
Nigeria
Nigeria’s Military Manual (1994) gives the following example of “perjury” (perfidy): “Feigning an intent to negotiate under a flag of truce.”
Nigeria
Nigeria’s Manual on the Laws of War states: “It is forbidden to deceive the enemy by hoisting a white flag and have the enemy believe that a parlementaire is approaching them and thereby concealing an advance for attack.”
Peru
Peru’s IHL Manual (2004) states that “the feigning of an intent to negotiate under a flag of truce” is an example of perfidy.
Peru
Peru’s IHL and Human Rights Manual (2010) states that “the feigning of an intent to negotiate under a flag of truce” is an example of perfidy.
Romania
Under Romania’s Soldiers’ Manual (1991), “feigning an intent to negotiate under the cover of a flag” is an act of perfidy.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
When planning and conducting combat operations it is necessary to draw a clear distinction between perfidy and ruses of war. Perfidy means committing a hostile act under the cover of a right to protection by feigning: … an intent to negotiate under a flag of truce.
South Africa
South Africa’s LOAC Manual (1996) states that the misuse of any of the symbols of protection (including the white flag) constitutes an act of perfidy and a grave breach of the law of armed conflict.
The manual also states that “perfidious use of … the white flag” is a grave breach of the 1977 Additional Protocol I and a war crime.
South Africa
South Africa’s Revised Civic Education Manual (2004) states: “It is not permissible to attempt to deceive the enemy by abusing the LOAC or misusing the various protections it affords. For example, it is forbidden to … misuse any of the … symbols of protection [including the white flag of truce].”
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
- Perfidy
…
- The following actions are perfidious and therefore prohibited:
…
- To mark persons and objects who are not entitled to it, with any of the distinctive signs, to wit, … the white flag (flag of truce) and other internationally recognised signs and signals, … ([1977] Additional Protocol I article 38.)
- The following acts are examples of perfidy (Additional Protocol I article 37):
- To pretend an intention to negotiate under a flag of truce[.]
The manual further states:
5.1 War Crimes and Grave Breaches of the LOAC [law of armed conflict]
…
- [1977] Additional Protocol I article 85 provides further examples of grave breaches, in that it stipulates that the following acts shall be regarded as grave breaches when committed wilfully, and causing death or serious injury to body or health:
…
- The perfidious use of the distinctive emblem of the Red Cross or of other protective signs.
Spain
Spain’s LOAC Manual (1996) states: “The improper use of the flag of parlementaires constitutes an act of perfidy. An abuse is committed when one takes advantage of the protection of the flag to approach the enemy and attack him by surprise.”
Likewise, according the manual, “feigning the intent to negotiate under a flag of parlementaires” is regarded as an act of perfidy.
The manual also provides: “It is prohibited to feign a protected status by inviting the confidence of the enemy: misuse of … the flag of truce.”
Moreover, the manual states that it is a grave breach and a war crime “to make a perfidious use … of … recognized protective signs”.
Spain
Spain’s LOAC Manual (2007) states: “Improper use of a flag of truce constitutes an act of perfidy. An abuse is committed when a party to the conflict takes advantage of the protection of the flag to draw near to the enemy and launch a surprise attack.”
The manual further states that “the feigning of an intent to negotiate under a flag of truce” is an example of a perfidious act.
Sweden
Sweden’s IHL Manual (1991) notes that “the feigning of an intent to negotiate under a flag of truce” is defined as perfidious conduct by Article 37 of the 1977 Additional Protocol I.
Switzerland
Switzerland’s Basic Military Manual (1987) forbids perfidy. Thus, “it is notably prohibited … to feign a desire to negotiate by misusing the flag of parlementaires”.
As an example of “murder by treason”, the manual lists firing at the enemy while approaching them under the protection of a white flag.
The manual also considers the “perfidious use of … distinctive signs recognized by the [1949 Geneva] Conventions or [the 1977 Additional Protocol I], in violation of Article 37 [of the 1977 Additional Protocol I],” as a grave breach of the 1977 Additional Protocol I.
Ukraine
Ukraine’s IHL Manual (2004) states that an example of perfidy is “the feigning of an intention to negotiate under a flag of truce”.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958), in connection with the requirements for being granted the status of combatant, notes in particular that irregular troops “should have been warned against the employment of treachery [and] improper conduct towards flags of truce”.
The manual considers it a legitimate ruse “to utilise an informal suspension of arms for the purpose of collecting wounded and dead … to execute movements unseen by the enemy”. For instance, it notes an incident during the Russo-Japanese War of 1905, in which a group of Russians under the protection of the white flag and the red cross emblem advanced towards the Japanese army and asked for a suspension of arms to collect the wounded and the dead. It then used the occasion to withdraw completely.
The manual condemns as unlawful the use of a “white flag for the purpose of making the enemy believe that a
parlementaire is about to be sent when there is no such intention, and to carry out operations under the protection granted by the enemy to the pretended flag of truce”.
The manual states: “Abuse of a flag of truce constitutes gross perfidy and entitles the injured party to take reprisals or to try the offenders if captured.”
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) provides: “Abuse of the white flag is treachery.”
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
It is forbidden to make improper use of a flag of truce. Thus, a feigned intention to negotiate or surrender with the intention of using the white flag as cover for the collection of information might amount to the war crime of perfidy whatever the consequences. It would amount to a grave breach of Additional Protocol I if it resulted in death or serious injury. A parlementaire who abuses his position in this way can be taken as a prisoner of war and tried.
United States of America
The US Field Manual (1956) states: “It is … an abuse of a flag of truce to carry out operations under the protection accorded by the enemy to it and those accompanying it.”
United States of America
The US Air Force Pamphlet (1976) states:
The white flag has traditionally indicated a desire to communicate with the enemy … It raises expectations that the particular struggle is at an end or close to an end since the only proper use of the flag of truce or white flag in international law is to communicate to the enemy a desire to negotiate. Thus, the use of a flag of truce or white flag in order to deceive or mislead the enemy, or for any other purpose other than to negotiate … has long been recognized as an act of treachery … [This] expresses the customary and conventional law in this area.
The Pamphlet also states: “In addition to the grave breaches of the Geneva Conventions of 1949, the following acts are representative of situations involving individual criminal responsibility: … treacherous request for … truce.”
United States of America
The US Naval Handbook (1995) provides that it is unlawful to use the flag of truce to gain a military advantage over the enemy. It adds: “Misuse of protective signs, signals and symbols … in order to injure, kill, or capture the enemy constitutes an act of perfidy.”
United States of America
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
IMPROPERLY USING A FLAG OF TRUCE.
a. Text. “Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused used a flag of truce;
(2) The accused made such use of the flag in order to feign an intention to negotiate, surrender, or otherwise suspend hostilities;
(3) The accused had no intention to negotiate, surrender, or otherwise suspend hostilities; and
(4) The conduct took place in the context of and was associated with armed conflict.
c.
Maximum punishment. Confinement for 20 years.
United States of America
The US Naval Handbook (2007) states that “use of the white flag to gain a military advantage over the enemy is unlawful”.
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
IMPROPERLY USING A FLAG OF TRUCE.
a. Text. “Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused used a flag of truce;
(2) The accused made such use of the flag in order to feign an intention to negotiate, surrender, or other wise suspend hostilities;
(3) The accused had no intention to negotiate, surrender, or otherwise suspend hostilities; and
(4) The conduct took place in the context of and was associated with hostilities.
c. Maximum punishment. Confinement for 20 years.
The manual also states: “One may commit an act of treachery or perfidy by, for example, feigning an intent to negotiate under a flag of truce or a surrender”.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states that “feigning an intention to negotiate under a flag of truce” is an act of perfidy.
Australia
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides: “A person who, in Australia or elsewhere, commits a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence.”
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act (1995).
Australia
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “improper use of a flag of truce … in order to feign an intention to negotiate when there is no such intention on the part of the perpetrator … [and which] results in deaths or serious personal injury”, in international armed conflicts.
Australia
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to serious war crimes that are committed in the course of an international armed conflict:
War crime – improper use of a flag of truce
A person (the perpetrator) commits an offence if:
(a) the perpetrator uses a flag of truce; and
(b) the perpetrator uses the flag in order to feign an intention to negotiate when there is no such intention on the part of the perpetrator; and
(c) the perpetrator knows of, or is reckless as to, the illegal nature of such use of the flag; and
(d) the perpetrator’s conduct results in death or serious personal injury; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
Azerbaijan
Azerbaijan’s Criminal Code (1999) provides that “the misuse of the white flag, … which as a result caused death or serious injury to body of a victim,” constitutes a war crime in international and non-international armed conflicts.
Canada
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides that “every person who, whether within or outside Canada, commits a grave breach [of the 1977 Additional Protocol I] … is guilty of an indictable offence”.
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act.
Chad
Chad’s Emblem Law (2014) states:
Any person who, intentionally, in time of war, commits or gives the order to commit acts resulting in the death of or causing serious harm to the body or health of an adversary by making perfidious use of the emblem of the red cross or red crescent or a distinctive signal, commits a war crime and is punished by forced labour.
Perfidious use means improperly using the distinctive emblem of the red cross, red crescent or other protective signs recognized by international humanitarian law, or improperly using the badge of a parlementaire, the flag or military insignia and uniform of the enemy, or of the United Nations, and by doing so, causing the loss of human lives or serious injuries.
Colombia
Colombia’s Penal Code (2000), in an article entitled “Perfidy”, imposes a criminal sanction on “anyone who, during an armed conflict, with intent to harm or attack the adversary, … uses improperly … the white flag of parlementaires”.
Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) defines war crimes with reference to the categories of crimes defined in Article 8 of the 1998 ICC Statute.
Cook Islands
The Geneva Conventions and Additional Protocols Act (2002) of the Cook Islands punishes “any person who in the Cook Islands or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach … of [the 1977 Additional Protocol I]”.
Côte d’Ivoire
Côte d’Ivoire’s Penal Code (1981), as amended in 2015, states:
Article 139
Whoever commits a war crime is punished with life imprisonment.
War crimes are:
…
2 - other 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:
…
- making improper use of a flag of truce … , resulting in death or serious personal injury[.]
Cyprus
Cyprus’s Additional Protocol I Act (1979) punishes “any person who, whatever his nationality, commits in the Republic or outside the Republic any grave breach of the provisions of the Protocol, or takes part or assists or incites another person in the commission of such a breach”.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Ethiopia
Ethiopia’s Penal Code (1957) punishes any abuse of the white flag, with intent to prepare or to commit hostile acts.
Ethiopia’s Criminal Code (2004) states:
Article 282.- Abuse of Emblems and Insignia of International Humanitarian Organizations.
Whoever intentionally:
…
(b) abuses … any … protective device recognized in public international law, in particular the white flag, with intent to prepare or to commit hostile acts,
is punishable with simple imprisonment, or, in cases of exceptional gravity, with rigorous imprisonment not exceeding five years.
The Criminal Code of 2004 repealed Ethiopia’s Penal Code of 1957.
France
France’s Penal Code (1992), as amended in 2010, states in its section on war crimes related to international armed conflict: “Making improper use of the flag of truce … and thereby causing serious bodily harm to a combatant from the adverse party is a punishable offence.”
Georgia
Under Georgia’s Criminal Code (1999), “the perfidious use of … protective signs and signals recognized by international humanitarian law” in an international or non-international armed conflict is a crime.
Georgia
Georgia’s Criminal Code (1999), taking into account amendments up to 2017, states:
Intentional breach of the provisions of … international humanitarian law during armed conflicts between states or within a state, in particular:
…
f) improper use of a flag of temporary ceasefire … which has resulted in human deaths or serious bodily injuries;
…
shall be punished by imprisonment for a term of ten to fifteen years.
Germany
Germany’s Law Introducing the International Crimes Code (2002) punishes anyone who, in connection with an international or non-international armed conflict, “makes improper use … of the flag of truce, … thereby causing a person’s death or serious injury”.
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that grave breaches of the 1977 Additional Protocol I are punishable offences.
The Act adds that any “minor breach” of the 1977 Additional Protocol I, including violations of Article 37(1), is also a punishable offence.
Mali
Under Mali’s Penal Code, “using the flag of parlementaires … and thereby, causing loss of human lives or serious injuries” is a war crime in international armed conflicts.
Myanmar
Myanmar’s Defence Services Act (1959) punishes any person who “treacherously … sends a flag of truce to the enemy”.
New Zealand
New Zealand’s Geneva Conventions Act (1958), as amended in 1987, provides: “Any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence.”
New Zealand
Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crimes defined in Article 8(2)(b)(vii) of the 1998 ICC Statute.
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment.
Peru
Peru’s Military and Police Criminal Code (2010), in a chapter entitled “Crimes involving the use of prohibited methods in the conduct of hostilities, states:
A member of the military or the police shall be punished with deprivation of liberty of not less than ten and not more than twenty years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she improperly uses … the white flag … with the result set out in Article 33, paragraphs 16 and 17 [of the present code, namely causing serious injury or death].
Sierra Leone
Sierra Leone’s Geneva Conventions Act (2012) states:
2. Grave breaches of the [1949 Geneva] Conventions and the [1977] First [Additional] Protocol
(1) A person of whatever nationality commits an offence if that person, whether within or outside Sierra Leone[,] commits, aids, abets or procures any other person to commit a grave breach specified in –
…
(e) … paragraph … 3 … of Article 85 of the First Protocol [on,
inter alia, the grave breach of the perfidious use, in violation of Article 37 of the Protocol, of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or the Protocol].
South Africa
South Africa’s ICC Act (2002) reproduces the war crimes listed in the 1998 ICC Statute, including in international armed conflicts: “making improper use of a flag of truce … resulting in death or serious personal injury”.
South Africa
South Africa’s Implementation of the Geneva Conventions Act (2012) states:
5. Breach of Conventions and penalties
(1) Any person who, whether within or outside the Republic, commits a grave breach of the [1949 Geneva] Conventions, is guilty of an offence.
(2) For the purposes of subsection (1), “a grave breach” means –
…
(e) a grave breach referred to in Article … 85 of [the 1977 Additional] Protocol I.
Spain
Spain’s Royal Ordinance for the Armed Forces (1978) provides: “The combatant … shall not display treacherously the white flag.”
Spain
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict … uses … in a perfidious manner the flag of parlementaires”.
Sweden
Under Sweden’s Penal Code (1962), as amended in 1998, misuse of flags of parlementaires or “the killing or injuring of an opponent by means of some other form of treacherous behaviour” constitutes a crime against international law.
Tajikistan
Tajikistan’s Criminal Code (1998) punishes “the perfidious use of … protective signs and signals recognized by international humanitarian law” in an international or internal armed conflict.
United Kingdom of Great Britain and Northern Ireland
The UK Geneva Conventions Act (1957), as amended in 1995, punishes “any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of, a grave breach of … [the 1977 Additional Protocol I]”.
United Kingdom of Great Britain and Northern Ireland
Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(b)(vii) of the 1998 ICC Statute.
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
“§ 950v. Crimes triable by military commissions
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(18) IMPROPERLY USING A FLAG OF TRUCE.—Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
“§ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(18) IMPROPERLY USING A FLAG OF TRUCE.—Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, … or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.
Yemen
Under Yemen’s Military Criminal Code (1998), the “perfidious use of … international protective emblems provided for in international conventions” is a war crime.
Zimbabwe
Zimbabwe’s Geneva Conventions Act (1981), as amended in 1996, punishes “any person, whatever his nationality, who, whether in or outside Zimbabwe, commits any such grave breach of … [the 1977 Additional Protocol I]”.
Canada
In 2013, in the
Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the
Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.”
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
…
The accused’s position is stated to be that this Court has no jurisdiction to try him.
…
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr
Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
…
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
…
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
…
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
…
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
…
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
…
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
…
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
…
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
…
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
…
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
…
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
…
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of
usus and/or
opinio juris have not been met. See
Petane.

[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of
usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of
opinio juris.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states:
Perfidy
International humanitarian law prohibits killing, injuring or capturing an adversary by resorting to perfidy. Acts of perfidy include any form of deception designed to win the confidence of an adversary and lead him to believe that he is entitled or obliged to accord protection under the rules of international humanitarian law, with the intention of betraying that confidence. An example of perfidy is to falsely lay claim to protected status through the misuse of signs or emblems[.]
United Kingdom of Great Britain and Northern Ireland
A training video on IHL produced by the UK Ministry of Defence emphasizes that it constitutes treachery to fire under the cover of protection of the flag of truce.
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated: “Perfidious acts include the feigning of an intent … to negotiate under a flag of truce.”
No data.
No data.
No data.
No data.
ICRC
The ICRC Commentary on the Additional Protocols states:
The perfidious use … of emblems, signs, signals or uniforms referred to in Article 37 … of the Protocol [among which the flag of truce], for the purpose of killing, injuring or capturing an adversary, constitutes a grave breach under [Article 85(3)(f) of the 1977 Additional Protocol I].
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “to pretend an intent to negotiate under a flag of truce” is an act of perfidy.
Delegates also teach that “the perfidious use of the … distinctive signs marking specifically protected persons and objects … [and of] other protected signs recognized by the law of war” constitutes a grave breach of the law of war.
ICRC
In a working paper on war crimes submitted in 1997 to the Preparatory Committee for the Establishment of an International Criminal Court, the ICRC included “the perfidious use of the … protective signs and signals recognized by international humanitarian law”, when committed in an international armed conflict, in its list of war crimes to be subject to the jurisdiction of the Court.
No data.