Practice Relating to Rule 62. Improper Use of Flags or Military Emblems, Insignia or Uniforms of the Adversary
Hague Regulations (1899)
Article 23(f) of the 1899 Hague Regulations provides: “It is especially prohibited … to make improper use of … the national flag or military ensigns and uniform of the enemy.”
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, Article 23(f).
Hague Regulations (1907)
Article 23(f) of the 1907 Hague Regulations provides: “It is especially forbidden … to make improper use … of the national flag or of the military insignia and uniform of the enemy.”
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 23(f).
Geneva Convention III
Article 93, second paragraph, of the 1949 Geneva Convention III provides:
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.
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 93, second para.
Additional Protocol I
Article 39(2) of the 1977 Additional Protocol I provides: “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.”
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 39(2). Article 39 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 103.
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 use in combat of the enemy’s distinctive military emblems” was considered perfidy.
CDDH, Official Records, Vol. I, Part Three, Draft Additional Protocols, June 1973, p. 39.
However, this proposal was deleted from the draft Article 21 adopted in Committee III of the CDDH.
CDDH, Official Records, Vol. XV, CDDH/407/Rev.1, 17 March–10 June 1977.
ICC Statute
Pursuant to Article 8(2)(b)(vii) of the 1998 ICC Statute, “[m]aking improper use … of the flag or of the military insignia and uniform of the enemy … resulting in death or serious personal injury” is a war crime in international armed conflicts.
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2)(b)(vii).
Lieber Code
Article 63 of the 1863 Lieber Code states that those fighting in the uniform of their enemy can expect no quarter.
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 63.
Article 65 states: “The use of the enemy’s national standard, flag, or other emblem of nationality, for the purpose of deceiving the enemy in battle, is an act of perfidy by which [troops] lose all claim to the protection of the laws of war.”
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 65.
Brussels Declaration
Article 13(f) of the 1874 Brussels Declaration provides that “[m]aking improper use … of the national flag or of the military insignia and uniform of the enemy” is “especially forbidden”.
Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, Article 13(f).
Oxford Manual
Article 8(d) of the 1880 Oxford Manual provides: “It is forbidden … to make improper use of the national flag, military insignia or uniform of the enemy.”
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 8(d).
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 39(2) of the 1977 Additional Protocol I.
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 39(2) of the 1977 Additional Protocol I.
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
San Remo Manual
According to paragraph 110 of the 1994 San Remo Manual, “[w]arships and auxiliary vessels … are prohibited from launching an attack whilst flying a false flag”.
Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, Prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, Cambridge University Press, Cambridge, 1995, § 110.
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 the flag or of the military insignia and uniform of the enemy … resulting in death or serious personal injury” is a war crime in international armed conflicts.
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 6(1)(b)(vii).
Argentina
Argentina’s Law of War Manual (1969) states that it is an act violating the principle of good faith “to make an improper use of the enemy’s national flag, … uniforms and/or military insignia”. It considers such use “improper” when it occurs during combat operations.
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 1.017.
Argentina
Argentina’s Law of War Manual (1989) provides: “It is prohibited … to use the flags, emblems, insignia or military uniforms of the enemy during the execution of military operations.”
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.06(3).
Australia
Australia’s Commanders’ Guide (1994) provides: “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.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 904.
The Guide also provides: “It is illegal to use in battle emblems, markings or clothing of … [the] enemy.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 507.
The Guide further states:
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.
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 826.
Australia
Australia’s Defence Force Manual (1994) provides:
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.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 705.
The manual also states: “Warships and auxiliary vessels may fly a false flag up until the moment of launching an attack but are prohibited from launching an attack whilst flying a false flag.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 635.
Australia
Australia’s LOAC Manual (2006) states: “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.”
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.6.
In its chapter on “Maritime Operations”, the manual states: “Warships and auxiliary vessels may fly a false flag up until the moment of launching an attack but are prohibited from launching an attack whilst flying a false flag”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 6.35.
In its chapter on “Compliance”, the manual states:
Provisions of the Hague Regulations 1907 are now recognised as part of customary law. Those regulations provide that the following acts are “especially forbidden”:
…
• to make improper use of … the national flag or of the military insignia and uniform of the enemy.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.29.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) provides:
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.
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, pp. 32 and 33.
[emphasis in original]Belgium
Belgium’s Teaching Manual for Officers (1994) provides: “The use of flags, symbols, insignia and uniforms of the enemy is prohibited during attacks or to shield, favour, protect or impede a military operation.”
Belgium, Droit de la Guerre, Manuel d’Instruction pour Officiers, Etat-Major Général, Division Opérations, 1994, Part I, Title II, p. 34.
Burkina Faso
Burkina Faso’s Disciplinary Regulations (1994) provides that, under the laws and customs of war, it is prohibited “to use improperly … the national flag of the enemy”.
Burkina Faso, Règlement de Discipline Générale dans les Forces Armées, Décret No. 94-159/IPRES/DEF, Ministère de la Défense, 1994, Article 35(2).
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “it is prohibited to use the flags, emblems or uniforms of the adversary … during an engagement in combat action [or] … in order to conceal, be to the advantage of, or prevent, military operations.”
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 94.
Cameroon
Cameroon’s Disciplinary Regulations (1975) provides that, under the laws and customs of war, it is prohibited “to use improperly … the national flag of the enemy”.
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 32.
Cameroon
Cameroon’s Instructor’s Manual (1992) states that “using fraudulently the emblems and uniforms of enemy States” is an unlawful deception.
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 30, § 131.2 and p. 89, § 222.
Cameroon
Cameroon’s Instructor’s Manual (2006) lists “using fraudulently the emblems and uniforms of enemy states” as one of several “unlawful deceptions”.
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 103, § 371; see also p. 147, § 431, p. 222, § 222, and p. 323.
Cameroon
Cameroon’s Disciplinary Regulations (2007) states:
Article 32: Prohibitions
It is prohibited to soldiers in combat:
…
- to use improperly … the national flag of the enemy.
Cameroon, Règlement de discipline générale dans les forces de défense, Décret N° 2007/199, Président de la République, 7 July 2007, Article 32.
Canada
Canada’s LOAC Manual (1999) provides:
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.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, §§ 13 and 14.
[emphasis in original]The manual also states: “It is not unlawful to use captured enemy aircraft. However, the enemy’s markings must be removed.”
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 7-3, § 19.
The manual considers it an act of perfidy in air warfare if a hostile act is committed while “using false markings on military aircraft such as the markings of … enemy aircraft”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 7-2 § 18(a).
In respect of naval warfare, the manual states: “Warships and auxiliary vessels are prohibited from opening fire while flying a false flag”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 8-10, § 78.
The manual also states that “improperly using … the national flag or military insignia and uniform of the enemy” constitutes a war crime.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-3, § 20(f).
Canada
Canada’s LOAC Manual (2001) states in its chapter on land warfare:
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.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 607.
[emphasis in original]In its chapter on air warfare, the manual provides:
3. The following are examples of perfidy in air warfare if a hostile act is committed while:
a. using false markings on military aircraft such as the markings of … enemy aircraft;
…
…
4. It is not unlawful to use captured enemy aircraft. However, the enemy’s markings must be removed.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 706.3.a and 4.
In its chapter on naval warfare, the manual states:
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.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 856.4.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states that “improperly using … the national flag or military insignia and uniform of the enemy” constitutes a war crime.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1609.2.f.
Central African Republic
The Central African Republic’s Disciplinary Regulations (2009) states: “During combat, it is also prohibited for servicemen to … make improper use of … the national flag of the adversary”.
Central African Republic, Décret 09.411 portant règlement de discipline générale dans les Armées, Ministre de la Défense Nationale, des Anciens Combattants, des Victimes de Guerre, du Désarmement et de la Restructuration de l’Armée, 10 December 2009, Article 12(11).
Chad
Chad’s Instructor’s Manual (2006) states that “using the flags, symbolic flags, signs or uniforms of the opposing parties during attacks or to conceal, favour or impede military operations” is prohibited and that to do so is a war crime.
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 78.
Congo
The Congo’s Disciplinary Regulations (1986) provides that, under the laws and customs of war, it is prohibited “to use improperly … the national flag of the enemy”.
Congo, Décret No. 86/057 du 14 janvier 1986 portant Règlement du Service dans l’Armée Populaire Nationale, 1986, Article 32(2).
Croatia
Croatia’s Commanders’ Manual (1992) states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: … use of enemy uniform or flag.”
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 46.
Djibouti
Djibouti’s Disciplinary Regulations (1982) states: “It is prohibited for combatants to … make improper use of … the national flag of the enemy”.
Djibouti, Décret no. 82-028/PR/DEF du 5 mai 1982 portant règlement de la discipline générale dans les Forces armées, Article 30(3).
Ecuador
Ecuador’s Naval Manual (1989) provides:
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.
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 12.5.
France
France’s Disciplinary Regulations (1975), as amended, states that it is prohibited “to use improperly … the national flag of the enemy”.
France, Règlement de Discipline Générale dans les Armées, Decree No. 75-675 of 28 July 1975, replacing Decree No. 66-749, completed by Decree of 11 October 1978, implemented by Instruction No. 52000/DEF/C/5 of 10 December 1979, and modified by Decree of 12 July 1982, Ministère de la Défense, Etat-Major de l’Armée de Terre, Bureau Emploi, Article 9 bis (2).
France
France’s LOAC Summary Note (1992) provides: “Perfidy is prohibited. It is prohibited … to use the uniform or emblem of the enemy.”
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 4.4.
France
France’s LOAC Teaching Note (2000) provides: “Perfidy is prohibited, notably … the use of the uniform or emblem of the adversary.”
France, Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 3.
France
France’s LOAC Manual (2001) states:
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.
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 47; see also p. 115.
Germany
Germany’s Military Manual (1992) provides: “It is prohibited to make improper use of … enemy … national flags, military insignia and uniforms.”
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 473.
The manual further states:
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.
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 1018.
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 … enemy national emblems.”
Greece, Hellenic Territorial Army Regulation of Internal Service Code, Presidential Decree 130/1984 (Military Regulation 20-1), as amended, Article 15(h).
Hungary
Hungary’s Military Manual (1992) regards it as an act of perfidy to feign protected status by using enemy uniforms or flag.
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 63.
Indonesia
Indonesia’s Military Manual (1982) provides: “It is … prohibited to use the flags, emblems, and badges of the enemy.”
Indonesia, The Basics of International Humanitarian Law, Legal Division of the Indonesian Armed Forces, 1982, § 104.
Israel
Referring to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states that the unlawful use of uniforms is prohibited.
Report on the Practice of Israel, 1997, Chapter 2.4, referring to Conduct in the Battlefield in Accordance with the Law of War, Israel Defense Forces, 1986, p. 8.
Israel
Israel’s Manual on the Laws of War (1998) provides: “It is forbidden to make inappropriate use of the enemy’s flag, uniform and emblems.” “Inappropriate use” is qualified as a perfidious act.
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 56.
Israel
Israel’s Manual on the Rules of Warfare (2006) states: “The use by deception of the enemy’s uniform is a breach of the rules of warfare.”
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 31.
The manual further states: “It is forbidden to misuse the enemy’s flag, its uniforms or insignia.”
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 35.
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), it is prohibited “to use flags, insignia or military uniforms other than the country’s own”.
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 9(1).
Italy
Italy’s LOAC Elementary Rules Manual (1991) provides: “It is prohibited to feign a protected status by inviting the confidence of the enemy: … use of enemy uniform or flag.”
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 46.
Lebanon
Lebanon’s Army Regulations (1971) prohibits the unlawful use of the enemy flag.
Lebanon, Règlement Général de l’Armée, No. 1/400, Ministère de la Défense, Commandement de l’Armée, 14 January 1971, § 17.
Madagascar
Madagascar’s Military Manual (1994) prohibits the use of enemy uniforms in general.
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 6-O, § 14.
Mali
Mali’s Army Regulations (1979) states that, under the laws and customs of war, it is prohibited “to use improperly … the national emblem of the enemy”.
Mali, Règlement du Service dans l’Armée, 1ère Partie: Discipline Générale, Ministère de la Défense Nationale, 1979, Article 36.
Morocco
Morocco’s Disciplinary Regulations (1974) provides that, under the laws and customs of war, it is prohibited “to use improperly … the national emblem of the enemy”.
Morocco, Règlement de Discipline Général dans les Forces Armées Royales, Dahir No. 1-74-383 du 15 rejeb 1394, 5 August 1974, Article 25(2).
Netherlands
The Military Manual (1993) of the Netherlands provides: “It is … prohibited to make use of the flag, military emblems, insignia or uniforms of the adverse party.”
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IV-3.
Netherlands
The Military Handbook (1995) of the Netherlands states that it is prohibited “to use insignia and uniforms of the adverse party”.
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-40.
Netherlands
The Military Manual (2005) of the Netherlands states: “It is … forbidden to use the adversary’s flags, military emblems, distinguishing signs or uniforms during attacks, or with a view to concealing, furthering, protecting or hindering military operations.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0417.
In its chapter on non-international armed conflict, the manual states: “It is also prohibited to make use of the flags, military emblems, uniforms and distinctive signs of States that are not parties to the conflict, or those of the adversary.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1041.
New Zealand
New Zealand’s Military Manual (1992) states: “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.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 502(8).
In respect of naval warfare, the manual provides:
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.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 713(1); see also § 713(3).
The manual also specifies: “The use of false markings on military aircraft such as the markings of … enemy aircraft is the prime example of perfidious conduct in air warfare and is prohibited.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 611(2).
The manual further states that “improperly using … the national flag or military insignia and uniform of the enemy” is a war crime.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1704(2)(f).
Nigeria
Nigeria’s Manual on the Laws of War states that the “use … of enemy uniform by troops engaged in a battle” is a war crime.
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 6(6).
Nigeria
Nigeria’s Soldiers’ Code of Conduct provides that it is prohibited “to make improper use of the national flag or of the military insignia and uniform of the enemy”.
Nigeria, Code of Conduct for Combatants, “The Soldier’s Rules”, Nigerian Army, undated, § 12(f).
Peru
Peru’s IHL Manual (2004) states:
(4) It is prohibited to use the flags, emblems or uniforms of the enemy:
(a) while engaging in attacks;
(b) in order to shield, favour, protect or impede military operations.
(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.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 27.e.(4) and (5).
Peru
Peru’s IHL and Human Rights Manual (2010) states:
(4) It is prohibited to use the flags, emblems or uniforms of the enemy:
(a) while engaging in attacks;
(b) in order to shield, favour, protect or impede military operations.
(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.
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 28(e)(4)–(5), p. 239.
Republic of Korea
Under the Republic of Korea’s Military Law Manual (1996), improper use of enemy uniforms is forbidden.
Republic of Korea, Military Law Manual, 1996, p. 88.
Romania
Under Romania’s Soldiers’ Manual (1991), the “use of the enemy’s uniforms and insignia” is an act of perfidy.
Romania, Manualul Soldatului, Ghid de comportare în luptă, Asociaţia Română de Drept Umanitar (ARDU), 1991, p. 35.
Russian Federation
Under the Russian Federation’s Military Manual (1990), the improper use of national signals and flags is a prohibited method of warfare.
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 5(c).
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states: “When organizing and conducting cover and concealment of military objectives it is prohibited to make use of … the flags, military emblems and uniforms of the enemy.”
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 137.
Senegal
Senegal’s Disciplinary Regulations (1990) provides that, under the laws and customs of war, it is prohibited “to use improperly … the national emblem of the enemy”.
Senegal, Règlement de Discipline dans les Forces Armées, Décret 90-1159, 12 October 1990, Article 34(2).
South Africa
South Africa’s LOAC Manual (1996) provides:
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.
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 34(b).
South Africa
South Africa’s Revised Civic Education Manual (2004) states:
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.
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 56(b).
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
- Perfidy
…
- The following actions are perfidious and therefore prohibited:
- The use of the flags, emblems or uniforms of the enemy
- While engaging in combat action; and
- In order to shield, favour or impede military operations. ([1977] Additional Protocol I article 39.)
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 3, pp. 186–187.
Spain
Spain’s LOAC Manual (1996) provides that the use of enemy flags, emblems, insignia and military uniforms while engaging in attack or in order to shield, favour, protect or impede military operations is prohibited.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, §§ 3.3.c.(1) and 5.3.c.
The manual also states: “It is prohibited to feign a protected status by inviting the confidence of the enemy: … use of enemy uniform or flag.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 10.8.e.(1).
Spain
Spain’s LOAC Manual (2007) states: “It is prohibited to make use of the flags, emblems, insignia or uniforms of adverse parties while engaging in attacks or in order to shield, favour, protect or impede military operations.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 3.3.c.(1); see also § 5.3.c.
Sweden
Sweden’s IHL Manual (1991) considers that the “prohibition of improper use of … emblems of nationality”, as contained in Article 39 of the 1977 Additional Protocol I, is part of customary international law.
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3, p. 19.
The manual stresses that Article 39(2) of the 1977 Additional Protocol I “constitutes a valuable clarification of international humanitarian law, and one which is also significant for Swedish defence”. It explains:
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.
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.1.b, p. 31.
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “It is notably forbidden … to abuse a protected status by using … emblems or uniforms of the adverse nation.” It regards this behaviour as a perfidious act.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 39.
The manual further stresses: “It is prohibited to use improperly the military insignia or uniform of the enemy.” It gives the example of the prohibition of attacking the enemy while wearing its uniform.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 40, including commentary.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
15.2 Prohibited methods of warfare
…
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.
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 224.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) describes as treachery calling out “Do not fire, we are friends”, and then firing, noting that this “device is often accompanied by the use of enemy uniforms”.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 311, footnote 1.
The manual also states: “If, owing to shortage of clothing, it becomes necessary to utilise apparel captured from the enemy, the badges should be removed before the articles are worn.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 322.
The manual further states:
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.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 320.
Furthermore, the manual states: “In addition to ‘grave breaches’ of the 1949 [Geneva] Conventions, … the following are examples of punishable violations of the laws of war, or war crimes: … use … of enemy uniform by troops engaged in a battle.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 626(f).
Lastly, the manual states: “Although no such opportunities of closing with the enemy by exhibiting his flag are possible in land warfare as in the case of naval warfare, national flags might be used to mislead the enemy.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 321.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) provides: “It is forbidden … to make improper use in combat … of the enemy’s national flag or uniform.”
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 4, p. 12, § 2d.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
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.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.11.
In its chapter on maritime warfare, the manual further states: “Warships and auxiliary vessels … are prohibited from launching an attack whilst flying a false flag, and at all times from actively simulating the status of those vessels exempt from attack.”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 13.82.
Lastly, in its chapter on enforcement of the law of armed conflict, the manual states:
The Hague Regulations 1907 are now recognized as part of customary law. Those regulations provide that the following acts are “especially forbidden”:
…
f. to make improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive emblems of the Geneva Convention.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.27.
United States of America
The US Field Manual (1976) states: “It is especially forbidden to make improper use … of the national flag, or military insignia and uniform of the enemy.”
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, § 52.
The manual adds:
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.
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, § 54.
[emphasis in original]The manual also states:
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.
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, § 74.
United States of America
The US Air Force Pamphlet (1976) incorporates the content of Article 23(f) of the 1907 Hague Regulations and adds that the prohibited improper use of the enemy’s flags, military insignia, national markings and uniforms “involves use in actual attacks”.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, §§ 8–2 and 8-6(c); see also § 8-3(d).
The manual further specifies:
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.
…
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.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, §§ 7–2 and 7-4.
United States of America
The US Naval Handbook (1995) states:
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.
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), § 12.5.
United States of America
The US Naval Handbook (2007) states:
12.5 Enemy Flags, Insignia and Uniforms
12.5.1 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.
12.5.2 In the Air
The use in combat of enemy markings by belligerent military aircraft is forbidden.
12.5.3 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. 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.
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, §§ 12.5, 12.5.1, 12.5.2 and 12.5.3.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) provides: “It is forbidden to use, during combat, in order to mislead the enemy, … enemy military insignia (military flags, emblems or badges).”
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 105(2).
Algeria
Algeria’s Code of Military Justice (1971) punishes the unauthorized use of the insignia of foreign armed forces.
Algeria, Code of Military Justice, 1971, Article 298.
Armenia
Under Armenia’s Penal Code (2003), “the use during military actions of … the flag or insignia of the enemy … in breach of international treaties and international law” constitutes a crime against the peace and security of mankind.
Armenia, Penal Code, 2003, Article 397.
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, insignia or uniform of the adverse party
A person (the perpetrator) commits an offence if:
(a) the perpetrator uses a flag, insignia or uniform of the adverse party; and
(b) the perpetrator uses the flag, insignia or uniform while engaged in an attack or in order to shield, favour, protect or impede military operations; and
(c) the perpetrator knows of, or is reckless as to, the illegal nature of such use of the flag, insignia or uniform; 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.
Australia, Criminal Code Act, 1995, as amended on to 2007, Chapter 8, § 268.42, p. 329.
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, insignia or uniform of the adverse party … while engaged in an attack or in order to shield, favour, protect or impede military operations” in international armed conflicts.
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.42.
Belarus
Belarus’s Criminal Code (1999) provides that it is a war crime to “use intentionally, during hostilities, in violation of international treaties, … the national flag or distinctive signs of an adverse Power”.
Belarus, Criminal Code, 1999, Article 138.
Belgium
Belgium’s Penal Code (1867), as amended in 2003, provides:
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 … :
…
30. improper use of … the flag or the military insignia and uniform of the enemy … , when it results in loss of life or serious injury.
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 quater, § 1(30).
Belgium
Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
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 … :
…
16 bis improper use of … the flag or the military insignia and uniform of the enemy … , when it results in loss of life or serious injury.
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 ter, § 1(16 bis).
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
[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:
…
g) making improper use … of the military insignia and uniform of the enemy … , resulting in death or serious personal injury.
Burundi, Law on Genocide, Crimes against Humanity and War Crimes, 2003, Article 4(B)(g).
Burundi
Burundi’s Penal Code (2009) states:
“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:
…
2. … [S]erious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
…
7°. Making improper use … of the flag or of the military insignia and uniform of the enemy … , resulting in death or serious personal injury.
Burundi, Penal Code, 2009, Article 198(2)(7°).
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.
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
Colombia
Under Colombia’s Penal Code (2000), the use of enemy uniforms with the intent to injure or kill an adversary is a punishable offence.
Colombia, Penal Code, 2000, Article 143.
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.
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 4.
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, Military Criminal Code, 1973, as amended in 1978, § 25(1).
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].
Denmark, Military Criminal Code, 2005, § 36(2).
Egypt
Egypt’s Military Criminal Code (1966) punishes any enemy soldier who, disguised in a friendly uniform, enters a military camp, defended position or institution.
Egypt, Military Criminal Code, 1966, Article 133.
Ethiopia
Ethiopia’s Criminal Code (2004) states:
Article 315.- Improper use of Enemy Uniform or Arms.
(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.
Ethiopia, Criminal Code, 2004, Article 315.
Fiji
Fiji’s Geneva Conventions Promulgation (2007), as amended in 2009, states:
Part IV—Misuse of the Red Cross and Other Emblems, Signs, Signals, Identity Cards, Insignia and Uniforms
Use of red cross, red crescent and other emblems, etc.
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:
…
(j) such other flags, emblems, designations, signs, signals, designs, wordings, identity cards, information cards, insignia or uniforms as are prescribed for the purpose of giving effect to the Conventions or Protocols.
Fiji, Geneva Conventions Promulgation, 2007, as amended in 2009, § 12(1)(j).
Finland
Finland’s Criminal Code (1889), as amended in 2008, provides that any person who “misuses … the flag of the enemy … military insignia [or] a military uniform” shall be “sentenced for a war crime to imprisonment for at least one year or for life”.
Finland, Criminal Code, 1889, as amended in 2008, Chapter 11, Section 5(1)(11).
(emphasis in original)Georgia
Under Georgia’s Criminal Code (1999), any war crime provided for by the 1998 ICC Statute, which is not explicitly mentioned in the Code, such as “making improper use … of the flag or of the military insignia and uniform of the enemy … resulting in death or serious personal injury” in international armed conflicts, is a crime.
Georgia, Criminal Code, 1999, Article 413(d).
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 or of the military insignia or of the uniform of the enemy … thereby causing a person’s death or serious injury”.
Germany, Law Introducing the International Crimes Code, 2002, Article 1, § 10(2).
Greece
Greece’s Military Penal Code (1995) prohibits the misuse of military uniforms or emblems.
Greece, Military Penal Code, 1995, Article 68.
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) identifies the following as a serious violation of the laws and customs of war applicable in international armed conflicts: “Making improper use of … the flag, or the military insignia and uniform of the enemy … resulting in death or serious personal injury”.
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 13(2)(H).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 39(2), is a punishable offence.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Italy
Under Italy’s Law of War Decree (1938), as amended in 1992, it is prohibited “to use flags, insignia or military uniforms other than the country’s own”.
Italy, Law of War Decree, 1938, as amended in 1992, Article 36(2).
The Decree further provides: “Warships may not enter into hostilities without a flag or with a flag other than the country’s own.”
Italy, Law of War Decree as amended, 1938, Article 138.
Italy
Italy’s Wartime Military Penal Code (1941) punishes anyone who “uses improperly the flag, insignia or military uniforms other than the country’s own”.
Italy, Wartime Military Penal Code, 1941, Article 180.
Mali
Under Mali’s Penal Code (2001), “using … the flag or military insignia and uniform of the enemy … and, thereby, causing loss of human lives or serious injuries” is a war crime in international armed conflicts.
Mali, Penal Code, 2001, Article 31(i)(7).
Netherlands
Under the International Crimes Act (2003) of the Netherlands, “making improper use … of the flag or of the military insignia and uniform of the enemy, … resulting in death of serious personal injury”, is a crime, when committed in an international armed conflict.
Netherlands, International Crimes Act, 2003, Article 5(3)(f).
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.
New Zealand, International Crimes and ICC Act, 2000, Section 11(2).
Nicaragua
Nicaragua’s Military Penal Code (1996) punishes any soldier who, in time of war and in an area of military operations, “unlawfully displays … enemy flags or emblems”.
Nicaragua, Military Penal Code, 1996, Article 50(1).
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.
Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).
Norway
Norway’s Penal Code (1902), as amended in 2008, states: “Any person is liable to punishment for a war crime who in connection with an armed conflict … makes improper use of … the flag of the enemy or of … military insignia or uniforms … resulting in death or serious injury.”
Norway, Penal Code, 1902, as amended in 2008, § 105(c).
Pakistan
According to the Report on the Practice of Pakistan, Pakistan’s Official Secrets Act (1923) and Public Order Ordinance (1958) punish the unauthorized use of the uniforms or insignia of the armed forces.
Report on the Practice of Pakistan, 1998, Chapter 2.6, referring to Official Secrets Act, 1923, Section 6 and Public Order Ordinance, 1958, Section 3.
Peru
Peru’s Code of Military and Police Justice (2006) states:
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.
Peru, Code of Military and Police Justice, 2006, Article 100.
This article is no longer in force. Along with certain other articles in this legislation, it was declared unconstitutional by the Constitutional Court (en banc decision for case file No. 0012-2006-PI-TC, 8 January 2007) because it does not stipulate a crime committed in the line of duty that would fall under the jurisdiction of a military court pursuant to Article 173 of Peru’s Constitution.
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 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].
Peru, Military and Police Criminal Code, 2010, Article 96.
Poland
Poland’s Penal Code (1997) punishes “any person who, during hostilities, uses … flags or military emblems of an enemy … State … in violation of international law”.
Poland, Penal Code, 1997, Article 126(2).
Republic of Korea
The Republic of Korea’s ICC Act (2007) provides for the punishment of anyone who commits the war crime of “[making] improper use … of the flag or military insignia or uniform of the enemy …, resulting in a person’s death or serious personal injury” in both international and non-international armed conflicts.
Republic of Korea, ICC Act, 2007, Article 12(2).
Senegal
Senegal’s Penal Code (1965), as amended in 2007, states that the following constitute war crimes:
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:
…
6. making improper use … of the military insignia and uniform of the enemy … , resulting in death or serious personal injury.
Senegal, Penal Code, 1965, as amended in 2007, Article 431-3(b)(6).
Somalia
Somalia’s Military Criminal Code (1963) states: “A penalty of military confinement for up to seven years shall be applied to anyone … who improperly uses military flags, insignia or uniforms other than those of his own State.”
Somalia, Military Criminal Code, 1963, Article 364.
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 … the flag or of the military insignia and uniform of the enemy … resulting in death or serious personal injury”.
South Africa, ICC Act, 2002, Schedule 1, Part 3, § (b)(vii).
Spain
Spain’s Royal Ordinance for the Armed Forces (1978) states: “The combatant … shall not display treacherously … the enemy flag.”
Spain, Royal Ordinance for the Armed Forces, 1978, Article 138.
Spain
Spain’s Military Criminal Code (1985) punishes any soldier who “displays improperly … enemy flags and emblems”.
Spain, Military Criminal Code, 1985, Article 75(1).
Spain
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict … uses improperly or in a perfidious manner the flag, uniform, insignia or distinctive emblem … of adverse Parties, during attacks or to cover, favour, protect or impede military operations”.
Spain, Penal Code, 1995, Article 612(5).
Sri Lanka
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
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.
Sri Lanka, Emergency Regulations, 2005, as amended to 5 August 2008, Section 35.
Sudan
Sudan’s Armed Forces Act (2007) provides:
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.
Sudan, Armed Forces Act, 2007, Article 155.
Switzerland
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”:
Art. 110
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.
…
Art. 112c
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:
…
g. makes improper use … of the flag, the uniform, the military insignia of the enemy[.]
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 110 and 112c (1)(g).
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states under the title “War crimes”:
Art. 264b
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.
…
Art. 264g
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:
…
g. makes improper use … of the flag, the uniform, the military insignia of the enemy[.]
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 264b and 264g (1)(g).
Syrian Arab Republic
The Syrian Arab Republic’s Penal Code (1949) punishes the wearing by any person of an official uniform or insignia of a foreign State.
Syrian Arab Republic, Penal Code, 1949, § 381.
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 Kingdom, ICC Act, 2001, Sections 50(1) and 51(1) (England and Wales) and Section 58(1) (Northern Ireland).
United States of America
Under the US War Crimes Act (1996), violations of Article 23(f) of the 1907 Hague Regulations are war crimes.
United States, War Crimes Act, 1996, Section 2441(c)(2).
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
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:
…
15. Making improper use … of the flag or of the military insignia and uniform of the enemy … , resulting in death or serious personal injury.
Uruguay, Law on Cooperation with the ICC, 2006, Article 26.2 and 26.3.15.
Yugoslavia, Socialist Federal Republic of
Under the Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, the use of a prohibited method of combat is a war crime.
Yugoslavia, Socialist Federal Republic, Penal Code, 1976, as amended in 2001, Article 148(1).
The commentary on the Code provides: “The following methods of combat are banned under international law: … abuse of … enemy uniforms or enemy army or state flag.”
Yugoslavia, Socialist Federal Republic, Penal Code, 1976, as amended in 2001, commentary on Article 148(1).
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.”
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
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, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
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.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[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.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
United States of America
In the Skorzeny case before the US General Military Court of the US Zone of Germany in 1947, the accused, German officers, were charged with participating in the improper use of American uniforms by entering into combat disguised therewith and treacherously firing upon and killing members of the US armed forces. The Court did not consider it improper for German officers to wear enemy uniforms while trying to occupy enemy military objectives. There was no evidence that they had used their weapons while so disguised, so the accusation of war crime was rejected. All the accused were acquitted and the Court did not give reasons for its decision.
United States, General Military Court of the US Zone of Germany, Skorzeny case, Judgment, 9 September 1947.
Canada
Canada made a reservation upon ratification of the 1977 Additional Protocol I, stating that it “does not intend to be bound by the prohibitions contained in paragraph 2 of Article 39 to make use of military emblems, insignia or uniforms of adverse parties in order to shield, favour, protect or impede military operations”.
Canada, Reservations and statements of understanding made upon ratification of the 1977 Additional Protocol I, 20 November 1990, § 2.
China
During the Chinese civil war, the Chinese Communist Party denounced the use of Red Army uniforms by Nationalist soldiers. The uniforms were used while committing reprehensible acts to discredit the Red Army. According to the Report on the Practice of China, soldiers captured while wearing the Red Army uniform were still treated as prisoners of war.
Report on the Practice of China, 1997, Chapter 2.6. (No source or document is cited.)
Germany
The Report on the Practice of Germany provides:
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.
Report on the Practice of Germany, 1997, Chapter 2.6. (No source or document is cited.)
India
According to the Report on the Practice of India, there are no provisions in the Indian Army Regulations which would permit the use of enemy uniforms either in combat or other circumstances.
Report on the Practice of India, 1997, Answers to additional questions on Chapter 2.6.
Iraq
On the basis of the reply by Iraq’s Ministry of Defence to a questionnaire, the Report on the Practice of Iraq concludes that a combatant wearing an enemy uniform to create confusion and disorder among its ranks would lose any protection under international law.
Report on the Practice of Iraq, 1998, Reply by the Ministry of Defence to a questionnaire, July 1997, Chapter 2.6.
Jordan
According to the Report on the Practice of Jordan, there is no Jordanian provision prohibiting the use of enemy uniforms.
Report on the Practice of Jordan, 1997, Chapter 2.6.
Republic of Korea
According to the Report on the Practice of the Republic of Korea, in the context of the North Korean Submarine Infiltration case, a report of the Intelligence Analysis Division of the Korean Ministry of Reunification pointed out that North Korean military personnel wearing South Korean military uniform lost their prisoner-of-war status. In the same context, a spokesman for the South Korean Ministry of Defence condemned the use of South Korean military uniforms by North Korean military personnel.
Report on the Practice of the Republic of Korea, 1997, Chapter 2.6.
Rwanda
On the basis of replies by army officers to a questionnaire, the Report on the Practice of Rwanda states that “treason … is prohibited” and “the improper use of uniforms is considered an act of treason” as well as a crime.
Report on the Practice of Rwanda, 1997, Replies by army officers to a questionnaire, 1997, Chapter 2.6.
Turkey
In 1996, in its oral pleadings before the European Court of Human Rights in Akdivar and Others v. Turkey, Turkey complained that the Kurdistan Workers’ Party (PKK) very often used uniforms of soldiers belonging to the Turkish army who had been killed, so as to conceal the identities of the actual perpetrators of attacks.
Turkey, Oral pleadings before the European Court of Human Rights, Akdivar and Others v. Turkey, 25 April 1996, Verbatim Record, p. 3.
United States of America
It was reported that, during the December 1944 Battle of the Bulge, the US army executed 18 German soldiers apprehended in US uniforms on charges of spying.
W. Hays Parks, “Air War and the Law of War”, The Air Force Law Review, Vol. 32, 1990, p. 77, footnote 259; Peter Rowe, “The Use of Special Forces and the Laws of War. Wearing the Uniform of the Enemy or Civilian Clothes and of Spying and Assassination”, Revue de Droit Militaire et de Droit de la Guerre, Vol. 33, 1994, p. 217.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We do not support the prohibition in article 39 [of the 1977 Additional Protocol I] of the use of enemy emblems and uniforms during military operations.”
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 425.
United States of America
According to the Report on US Practice, the Skorzeny case is the leading authority for the US armed forces. It adds that it is the opinio juris of the United States that the use of enemy uniforms is a lawful ruse of war as long as they are not used in actual combat.
Report on US Practice, 1997, Chapter 2.6.
Yugoslavia, Federal Republic of
The Report on the Practice of the Federal Republic of Yugoslavia mentions the use of Yugoslav People’s Army (YPA) insignia by Croatian soldiers when entering a Serb village. Civilians who went out to greet them were killed. No official statement on or reaction to the incident is provided by the report.
Report on the Practice of the Federal Republic of Yugoslavia, 1997, Chapter 2.4, referring to Miodrag Starcevic and Nikola Petkovic, Croatia ‘91-Violence and Crime Against the Law, Belgrade, 1991, pp. 34-35.
The report also notes that misuse or improper use of uniforms on the part of paramilitary formations and armed forces occurred at the beginning of the conflicts in Slovenia and Croatia. According to the report, it appears that the issue was not of primary importance and, therefore, cases of violations were not systematically recorded, although they undoubtedly existed and were committed by all parties to the conflict.
Report on the Practice of the Federal Republic of Yugoslavia, 1997, Chapter 2.6.
Zimbabwe
The Report on the Practice of Zimbabwe states: “Improper use of uniforms could be regarded as a legitimate ruse of war and is not necessarily perfidious.” No documents or sources are mentioned.
Report on the Practice of Zimbabwe, 1998, Chapter 2.6.
No data.
No data.
No data.
European Commission of Human Rights
In its report in Chrysostomos and Papachrysostomou v. Turkey in 1993, the European Commission of Human Rights noted the admitted practice that Turkish soldiers and Turkish Cypriot soldiers were wearing the same camouflage uniforms. It considered that the practice constituted “a deliberate tactic of disguise aimed at preventing the public from distinguishing between actions by Turkish soldiers and actions by Turkish Cypriot soldiers”. The Commission did not condemn the practice as such, but it considered that it had to take it into account when determining the responsibility of Turkey. In fact, recalling the practice, it found that the applicants’ arrest was imputable to Turkey.
European Commission of Human Rights, Chrysostomos and Papachrysostomou v. Turkey, Report, 8 July 1993, §§ 94–102.
ICRC
The ICRC Commentary on the Additional Protocols states:
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].
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, §§ 1575 and 1576.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “it is prohibited to use the flags, emblems or uniforms of the enemy: a) while engaging in combat action; b) in order to shield, favour or impede military operations”.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 403.
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 “improper use … of the national flag or of the military insignia and uniform of the enemy”, when committed in an international armed conflict, in its list of war crimes to be subject to the jurisdiction of the Court.
ICRC, Working paper on war crimes submitted to the Preparatory Committee for the Establishment of an International Criminal Court, New York, 14 February 1997, § 2(x).
Americas Watch
In 1986, in a report on human rights in Nicaragua, Americas Watch noted that, in some incidents involving attacks against non-combatants, “some of the contras … are said to wear red and black kerchiefs, traditionally worn by the Sandinistas, as a way of deceiving people about their true identity”. It also reported that some of the Fuerzas Democráticas Nicaragüenses (FDN), when they launched an attack on a certain city, “entered the town surreptitiously wearing uniforms resembling those worn by Nicaraguan Army troops”.
Americas Watch, Human Rights in Nicaragua: 1985–1986, New York, March 1986, pp. 89 and 106.
Parks
Parks has established a list of examples of conflicts since the Second World War in which the wearing of enemy uniforms was practised: France in Algeria (1958–1962); North Vietnam in South Vietnam (1968); United States of America in Southeast Asia (1965–1972); Soviet Union in Southeast Asia (1971–1972); Israel in the Middle East (1967, 1973); Rhodesia in Zambia and Mozambique (1970s); Israel in Uganda (1976); Mozambique in South Africa (1978); North Korea in South Korea (June 1983); Sendero Luminoso (“Shining Path”) in Peru (1984); Chad in Libya (1985); Farabundo Martí para la Liberación Nacional (FMLN) in El Salvador (1985–1988); and Sandinistas in Nicaragua (1986).
W. Hays Parks, Air War and the Law of War, The Air Force Law Review, Vol. 32, 1990, p. 77, footnote 259.
Sudan People’s Liberation Movement/Army (SPLM/A)
The Report on SPLM/A Practice notes that the SPLA successfully deceived a high-ranking commander of the governmental forces into landing at a rendez-vous secured by SPLA forces. The officer was lured in part by SPLA combatants wearing governmental uniforms. In another instance, a SPLA contingent captured a town “without firing a shot” by entering the town under the guise of friendly troops bringing supplies and salaries.
Report on SPLM/A Practice, 1998, Chapter 2.6.
