Practice Relating to Rule 62. Improper Use of Flags or Military Emblems, Insignia or Uniforms of the Adversary

Offences committed by prisoners of war with the sole intention of facilitating their escape and which do not entail any violence against life or limb, such as offences against public property, theft without intention of self-enrichment, the drawing up or use of false papers, the wearing of civilian clothing, shall occasion disciplinary punishment only. 

According to custom, it is permissible for a belligerent warship to use false colours and disguise her outward appearance in order to deceive an enemy, provided that prior to going into action the warship shows her true colours. 

It is … prohibited to use the flags or military emblems, insignia or uniforms of the enemy while engaging in attacks or in order to shield, favour, protect or impede military operations. Enemy uniforms may otherwise be worn. 

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

The [1907 Hague Regulations] prohibits to use “improperly” the national flag, or the military insignia and uniform of the enemy.

The word “improperly” must be stressed. It follows that opening fire or participating in an attack while wearing the enemy uniform doubtlessly constitutes an act of perfidy. It is also the case when opening fire from a captured enemy combat vehicle with its insignia.

However, infiltrating enemy lines in order to create panic to the point that the adversary starts firing on its own soldiers believing that they are disguised enemies or operating behind enemy lines wearing enemy uniform in order to collect information or commit acts of sabotage is not considered as using “improperly” enemy uniform …

It is a recognized practice that warships may, without contravening the law of war, fly the enemy flag, as a ruse, on the condition that at the moment of opening fire the warship shows her true colours …

It is prohibited for belligerents to display false markings, especially enemy markings, on their military aircraft.  [emphasis in original]

It is prohibited to soldiers in combat:

It is prohibited to make use of the flags or military emblems, insignia or uniforms of adverse parties while engaging in attacks.

When depositing its ratification of Additional Protocol I, Canada reserved the right to make use of the flags or military emblems, insignia or uniforms of adverse parties to shield, favour, protect or impede military operations. Any decision to do so should only be carried out with national level approval.  [emphasis in original]

1. It is prohibited to make use of the flags or military emblems, insignia or uniforms of adverse parties while engaging in attacks.

2. When depositing its ratification of Additional Protocol I, Canada reserved the right to make use of the flags or military emblems, insignia or uniforms of adverse parties to shield, favour, protect or impede military operations. Any decision to do so should only be carried out with national level approval.  [emphasis in original]

3. The following are examples of perfidy in air warfare if a hostile act is committed while:

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4. It is not unlawful to use captured enemy aircraft. However, the enemy’s markings must be removed. 

Certain types of ruses are not permitted. Warships and auxiliary vessels are prohibited from opening fire while flying a false flag. They may, however, display the enemy flag or a neutral flag during pursuit. Such conduct at sea is accepted or at least tolerated, whether the ship in question is pursuing an enemy ship or is trying to escape from it. 

At sea. Naval surface and subsurface forces may fly enemy colours and display enemy markings to deceive the enemy. Warships must, however, display their true colours prior to an actual armed engagement.

In the air. The use in combat of enemy markings by belligerent military aircraft is forbidden.

On land. The law of land warfare does not prohibit the use by belligerent land forces of enemy flags, insignia, or uniforms to deceive the enemy either before or following an armed engagement. Combatants risk severe punishment, however, if they are captured while displaying enemy colours or insignia or wearing enemy uniforms in combat.

Similarly, combatants caught behind enemy lines wearing the uniform of their adversaries are not enentitled to prisoner-of-war status or protection and, historically, have been subjected to severe punishment. It is permissible, however, for downed aircrews and escaping prisoners of war to use enemy uniforms to evade capture, so long as they do not attack enemy forces, collect military intelligence, or engage in similar military operations while so attired. As a general rule, enemy markings should be removed from captured enemy equipment before it is used in combat. 

It is normally prohibited to use the flags, emblems or uniforms of enemy States in combat with the view to dissimulate, favour or impede military operations. However, it is traditionally permitted for warships to hoist false flags as long as they are not engaged in combat. 

Ruses of war are permissible also in naval warfare. Unlike land and aerial warfare, naval warfare permits the use of false flags or military emblems … Before opening fire, however, the true flag shall always be displayed. 

According to custom, it is permissible for a belligerent warship to use false colours and to disguise her outward appearance in other ways in order to deceive an enemy, provided that prior to going into action the warship shows her true colours. Aircraft are not, however, enentitled to use false markings. 

(4) It is prohibited to use the flags, emblems or uniforms of the enemy:

(5) As a general rule, warships fly their national flag. Traditionally, they were permitted to fly a false flag at any time, provided that they showed their true colours before going into action. Today, the flag is seldom the only way of determining the nationality of a warship. 

(4) It is prohibited to use the flags, emblems or uniforms of the enemy:

(5) As a general rule, warships fly their national flag. Traditionally, they were permitted to fly a false flag at any time, provided that they showed their true colours before going into action. Today, the flag is seldom the only way of determining the nationality of a warship. 

It is prohibited to use the insignia or uniforms of the enemy while engaging in attacks or in order to shield, favour, protect or impede military operations … All insignia on enemy equipment must be removed before the equipment may be utilised by own forces. 

Use of Enemy Uniforms and Equipment. It is prohibited to use the insignia or uniforms of the enemy while engaging in attacks or in order to shield, favour, protect or impede military operations. If captured out of uniform, soldiers are at risk of being treated as spies or unlawful combatants. All insignia on enemy equipment must be removed before the equipment may be utilised by own forces. 

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The prohibition of improper use has been interpreted to mean that enemy uniform may not be used in connection with or during combat, and this has led to great uncertainty in application.

During the 1974–1977 diplomatic conference, certain of the great powers wished to retain the possibility of appearing in enemy uniforms, while most of the smaller states claimed that this possibility should be excluded or minimized. The conference accepted the view of the smaller states here. The rule in Article 39:2 [of the 1977 Additional Protocol I] can be interpreted to mean that enemy uniform may be used only as personal protection, for example under extreme weather conditions, and may never be used in connection with any type of military operation. Where prisoners of war make use of enemy uniforms in connection with escape attempts, this may not be seen as an infringement of Article 39. 

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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. 

The employment of the national flag, military insignia or uniform of the enemy for the purpose of ruse is not forbidden, but the [1907 Hague Regulations] prohibit their improper use, leaving unsettled what use is proper and what use is not. However, their employment is forbidden during a combat, that is, the opening of fire whilst in the guise of the enemy. But there is no unanimity as to whether the uniform of the enemy may be worn and his flag displayed for the purpose of approach or withdrawal. Use of enemy uniform for the purpose of and in connection with sabotage is in the same category as spying. 

It is prohibited… to make use of the flags or military emblems, insignia or uniforms of adverse Parties while engaging in attacks or in order to shield, favour, protect or impede military operations … The prohibition on the use of such items of the enemy uniforms only arises in connection with actual military operations, so there would be no objection to enemy uniforms being worn in rear areas for training purposes or by a prisoner of war to facilitate his escape. 

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

In practice, it has been authorized to make use of national flags, insignia, and uniforms as a ruse. The foregoing rule (HR, art. 23, par. (f)) does not prohibit such employment, but does prohibit their improper use. It is certainly forbidden to employ them during combat, but their use at other times is not forbidden.  [emphasis in original]

Members of the armed forces of a party to the conflict and members of militias or volunteer corps forming part of such armed forces lose their right to be treated as prisoners of war whenever they deliberately conceal their status in order to pass behind the military lines of the enemy for the purpose of gathering military information or for the purpose of waging war by destruction of life or property. Putting on civilian clothes or the uniform of the enemy are examples of concealment of the status of a member of the armed forces. 

Members of the armed forces of a party to the conflict and members of militias or volunteer corps forming part of such armed forces lose their right to be treated as prisoners of war whenever they deliberately conceal their status in order to pass behind the military lines of the enemy for the purpose of gathering military information or for the purpose of waging war by destruction of life or property. Putting on civilian clothes or the uniform of the enemy are examples of concealment of the status of a member of the armed forces. Ground forces engaged in actual combat, in contrast to ground forces preparing for combat, are required to wear their own uniform or distinctive national insignia.

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While combatant airmen are not absolutely required to wear a uniform or distinctive national insignia while flying in combat, improper use of the military insignia or uniform of the enemy is forbidden. Consequently, airmen should not wear the uniform or national insignia of the enemy while engaging in combat operations. Military aircraft, as entities of combat in aerial warfare, are also required to be marked with appropriate signs of their nationality and military character. 

At Sea. Naval surface and subsurface forces may fly enemy colors and display enemy markings to deceive the enemy. Warships must, however, display their true colors prior to an actual armed engagement.

In the Air. The use in combat of enemy markings by belligerent military aircraft is forbidden.

On Land. The law of land warfare does not prohibit the use by belligerent land forces of enemy flags, insignia, or uniforms to deceive the enemy either before or following an armed engagement. Combatants risk severe punishment, however, if they are captured while displaying enemy colors or insignia or wearing enemy uniforms in combat.

Similarly, combatants caught behind enemy lines wearing the uniform of their adversaries are not enentitled to prisoner-of-war status or protection and, historically, have been subjected to severe punishment. It is permissible, however, for downed aircrews and escaping prisoners of war to use enemy uniforms to evade capture, so long as they do not attack enemy forces, collect military intelligence, or engage in similar military operations while so attired. As a general rule, enemy markings should be removed from captured enemy equipment before it is used in combat. 

Naval surface and subsurface forces may fly enemy colors and display enemy markings to deceive the enemy. Warships must, however, display their true colors prior to an actual armed engagement.

The use in combat of enemy markings by belligerent military aircraft is forbidden.

The law of land warfare does not prohibit the use by belligerent land forces of enemy flags, insignia, or uniforms to deceive the enemy either before or following an armed engagement. Once an armed engagement begins, a belligerent is prohibited from deceiving an enemy by wearing an enemy uniform, or using enemy flags and insignia; combatants risk severe punishment if they are captured while displaying enemy colors or insignia or wearing enemy uniforms in combat.

Similarly, combatants caught behind enemy lines wearing the uniform of their adversaries run the risk of being denied prisoner-of-war status or protection and, historically, have been subjected to severe punishment. It is permissible, however, for downed aircrews and escaping prisoners of war to use enemy uniforms to evade capture, so long as they do not attack enemy forces, collect military intelligence, or engage in similar military operations while so attired.

Captured enemy equipment and supplies may be seized and used. Enemy markings, however, should be removed from captured enemy equipment before it is used in combat. 

A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for life. 

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 … :

[The following are] considered as war crimes:

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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:

“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:

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]. 

(1) Any member of the Defence Forces who improperly wears or makes use of the uniform, insignia or arms of the enemy in a way that creates confusion or causes damage, is punishable with rigorous imprisonment not exceeding five years.

(2) Where the crime is committed particularly in time of war, and the act has caused serious confusion or damage, the punishment shall be rigorous imprisonment not exceeding fifteen years. 

12.—(1) Subject to the provisions of this section, it shall not be lawful for any person, without the consent in writing of the Minister of Home Affairs or a person authorized in writing by the Minister to give consent under this section, to use or display for any purpose whatsoever any of the following:

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 member of the military or police who in the context of an international or non-international armed conflict kills or seriously injures a person by making improper use of … the flag, military insignia, uniform or flag of the adversary … shall be imprisoned for a period of no less than ten and no more than 20 years.

If the person intentionally causes the death of another person, the penalty shall be no less than 20 and more than 30 years’ 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 flag of the adversary … with the result set out in Article 33, paragraphs 16 and 17 [of the present code, namely causing serious injury or death]. 

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:

Whoever not being a member of the Armed Forces, or the Police Force wears or has in his possession the custody or control of any garb, dress, uniform, identity card, token or other symbol resembling in any manner or in any detail, the garb, dress, uniform, identity card, token or other symbol worn or used by any member of the Armed Forces or the Police Force shall be guilty of an offence. 

Subject to the provisions of the Criminal Act of 1991, shall be punished with imprisonment for a term not exceeding five years, whoever intentionally misuses … the flag of the enemy, enemy military insignia or uniform … the result of such acts being death, or considerable casualty among enemy personnel. 

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.

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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.

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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:

26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.

26.3. The following are war crimes:

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. 

An official document of 1978 states that the improper use of uniforms can be seen as an act of perfidy. It continues by stating that there would be no breach in the case of wearing a uniform which is incomplete. International law contains no rules on the composition of uniforms. The important element is a certain designation or identification in order to comply with the principle of distinction. This designation does not necessarily have to be a uniform in the traditional sense. 

The prohibition formulated in Article 39 [of the 1977 Additional Protocol I], “while engaging in attacks or in order to shield, favour, protect or impede military operations”, includes the preparatory stage to the attack … It means that every possible exception should always be examined on its merits, a point that legal experts had stressed throughout … Under the provisions of the [1907 Hague Regulations], there is no doubt whatsoever that wearing an enemy uniform is not prohibited in this case [in order to conceal, facilitate or protect escape].