Norma relacionada
United States of America
Practice Relating to Rule 65. Perfidy
Section D. Simulation of surrender
The US Field Manual (1956) provides: “It is improper to feign surrender so as to secure an advantage over the opposing belligerent thereby.”
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, § 50.
The manual also stresses: “An individual or a party acts treacherously in displaying a white flag indicative of surrender as a ruse to permit attack upon the forces of the other belligerent.”
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 467.
The manual further states: “In addition to the ‘grave breaches’ of the Geneva Conventions of 1949, the following acts are representative of violations of the law of war (‘war crimes’): … treacherous request for quarter.”
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, § 504(b).
The US Air Force Pamphlet (1976) considers the feigning of surrender as a perfidious act.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 8-3(a).
The manual adds:
The use of a … white flag in order to deceive or mislead the enemy, or for any other purpose other than to … surrender, has long been recognized as an act of treachery … [This] expresses the customary and conventional law in this area.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 8-6(a).
The Pamphlet further provides:
In addition to the grave breaches of the Geneva Conventions of 1949, the following acts are representative of situations involving individual criminal responsibility: … treacherous request for quarter.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c)(3).
The US Instructor’s Guide (1985) notes that an
example of a treacherous act would be pretending to surrender in order to facilitate an attack upon an unsuspecting enemy. Such tactics are prohibited because they destroy the basis for the restoration of peace short of the complete destruction of one side or the other.
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 8.
The Guide further provides: “In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … pretending to surrender.”
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 13.
The US Naval Handbook (1995) states: “Feigning surrender in order to lure the enemy into a trap is an act of perfidy.”
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 12.1.2.
The Handbook further provides: “It is a violation of the law of armed conflict to kill, injure, or capture the enemy by false indication of an intent to surrender … Such [act] of perfidy [is a] punishable war [crime].”
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), § 12.7.
In addition, the Handbook states: “The following acts are representative war crimes: … treacherous request for quarter (i.e., feigning surrender in order to gain a military advantage).”
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), § 6.2.5(12).
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
IMPROPERLY USING A FLAG OF TRUCE.
a. Text. “Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused used a flag of truce;
(2) The accused made such use of the flag in order to feign an intention to negotiate, surrender, or otherwise suspend hostilities;
(3) The accused had no intention to negotiate, surrender, or otherwise suspend hostilities; and
(4) The conduct took place in the context of and was associated with armed conflict.
c. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(18), p. IV-14.
The US Naval Handbook (2007) states: “Feigning surrender in order to lure the enemy into a trap is one example of an act of perfidy.”
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, § 12.1.2.
The Handbook also states: “It is a violation of the law of armed conflict to kill, injure, or capture the enemy by false indication of intent to surrender. … Such acts of perfidy are punishable as war crimes.”
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, § 12.7.
The Handbook further states that “[t]reacherous request[s] for quarter (i.e., feigning surrender in order to gain a military advantage)” are examples of acts that could be considered war crimes.
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, § 6.2.6.
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
IMPROPERLY USING A FLAG OF TRUCE.
a. Text. “Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused used a flag of truce;
(2) The accused made such use of the flag in order to feign an intention to negotiate, surrender, or other wise suspend hostilities;
(3) The accused had no intention to negotiate, surrender, or otherwise suspend hostilities; and
(4) The conduct took place in the context of and was associated with hostilities.
c. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(18), p. IV-15.
The manual also states: “One may commit an act of treachery or perfidy by, for example, feigning an intent to negotiate under a flag of truce or a surrender”.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(17)(c)(4), p. IV-15.
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
…
(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
…
(18) IMPROPERLY USING A FLAG OF TRUCE.—Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2629, § 950v(b)(18).
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
Perfidious acts include the feigning of an intent to surrender …
[I]ndividual acts of perfidy did occur. On one occasion, Iraqi soldiers waved a white flag and laid down their weapons. When a Saudi Arabian patrol advanced to accept their surrender, it was fired upon by Iraqi forces hidden in buildings on either side of the street. During the same battle, an Iraqi officer approached Coalition forces with his hands in the air, indicating his intention to surrender. When near his would-be-captors, he drew a concealed pistol from his boot, fired, and was killed during the combat that followed.
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 632.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
Ҥ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(18) IMPROPERLY USING A FLAG OF TRUCE.—Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2009, § 950t(18).
