Practice Relating to Rule 65. Perfidy
Section F. Simulation of protected status by using the distinctive emblems of the Geneva Conventions
Australia’s Commanders’ Guide (1994), in a section entitled “Perfidy”, states: “Protection is afforded to … medical personnel … by providing them with special identification symbols. It is unlawful for soldiers and other lawful combatants to fraudulently use protected symbols or facilities to obtain immunity from attack.”
Australia’s Defence Force Manual (1994) states:
Warships and auxiliary vessels … are prohibited … at all times from actively simulating the status of:
a. hospital ships, small coastal rescue craft or medical transports;
b. vessels on humanitarian missions;
f. vessels entitled to be identified by the emblem of the Red Cross or Red Crescent.
Perfidious acts include the launching of an attack while feigning:
a. exempt … status.
Australia’s LOAC Manual (2006) states that warships and auxiliary vessels are prohibited at all times from actively simulating the status of:
• hospital ships, small coastal rescue craft or medical transports;
• vessels on humanitarian missions;
• vessels entitled to be identified by the emblem of the Red Cross, Red Crescent or Red Crystal.
The manual further states:
Perfidious acts also include the launching of an attack while feigning:
• exempt … status.
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).
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’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including, when committed in international armed conflicts:
improper use of the distinctive emblems of the Geneva Conventions …
[when] the perpetrator uses the emblem for combatant purposes to invite the confidence of an adversary in order to lead him or her to believe that the perpetrator is entitled to protection, or that the adversary is obliged to accord protection to the perpetrator, with intent to betray that confidence …
[and when] the perpetrator’s conduct results in death or serious personal injury.