Соответствующая норма
United States of America
Practice Relating to Rule 65. Perfidy
Section E. Simulation of an intention to negotiate under the white flag of truce
The US Field Manual (1956) states: “It is … an abuse of a flag of truce to carry out operations under the protection accorded by the enemy to it and those accompanying it.”
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 467.
The US Air Force Pamphlet (1976) states:
The white flag has traditionally indicated a desire to communicate with the enemy … It raises expectations that the particular struggle is at an end or close to an end since the only proper use of the flag of truce or white flag in international law is to communicate to the enemy a desire to negotiate. Thus, the use of a flag of truce or white flag in order to deceive or mislead the enemy, or for any other purpose other than to negotiate … has long been recognized as an act of treachery … [This] expresses the customary and conventional law in this area.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 8-6(a)(2); see also § 8-3(a).
The Pamphlet also states: “In addition to the grave breaches of the Geneva Conventions of 1949, the following acts are representative of situations involving individual criminal responsibility: … treacherous request for … truce.”
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c)(3).
The US Naval Handbook (1995) provides that it is unlawful to use the flag of truce to gain a military advantage over the enemy. It adds: “Misuse of protective signs, signals and symbols … in order to injure, kill, or capture the enemy constitutes an act of perfidy.”
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 12.2.
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
IMPROPERLY USING A FLAG OF TRUCE.
a. Text. “Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused used a flag of truce;
(2) The accused made such use of the flag in order to feign an intention to negotiate, surrender, or otherwise suspend hostilities;
(3) The accused had no intention to negotiate, surrender, or otherwise suspend hostilities; and
(4) The conduct took place in the context of and was associated with armed conflict.
c. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(18), p. IV-14.
The US Naval Handbook (2007) states that “use of the white flag to gain a military advantage over the enemy is unlawful”.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 12.2.
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
IMPROPERLY USING A FLAG OF TRUCE.
a. Text. “Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused used a flag of truce;
(2) The accused made such use of the flag in order to feign an intention to negotiate, surrender, or other wise suspend hostilities;
(3) The accused had no intention to negotiate, surrender, or otherwise suspend hostilities; and
(4) The conduct took place in the context of and was associated with hostilities.
c. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(18), p. IV-15.
The manual also states: “One may commit an act of treachery or perfidy by, for example, feigning an intent to negotiate under a flag of truce or a surrender”.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(17)(c)(4), p. IV-15.
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
Ҥ 950v. Crimes triable by military commissions
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(18) IMPROPERLY USING A FLAG OF TRUCE.—Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2629, § 950v(b)(18).
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
Ҥ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(18) IMPROPERLY USING A FLAG OF TRUCE.—Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, … or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2009, § 950t(18).
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated: “Perfidious acts include the feigning of an intent … to negotiate under a flag of truce.”
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 632.
