06A032 IHL Project

8/3/2019 06A032 IHL Project

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THECONCEPTOFPERFIDYININTERNATIONAL HUMANITARIANLAW

Subject: Human Rights and International Humanitarian Law

(A Project Submitted to the Faculty of Law as

A Partial Fulfilment of the B.S.C. LLB (Hons.) Degree)

Submitted to: Submitted

by:

Mr. Rishikesh Dave Bhaskar

Banerji

Faculty of Law Reg. no.

06A032 Gujarat National Law University

Semester VI

B.S.C LL.B.

(Hons.)


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THE CONCEPTOF PERFIDYIN INTERNATIONAL HUMANITARIAN LAW

Date of Submission: 18th March, 2009.

TTable of contentsable of contents

Sr. No.Sr. No. ContentsContents Page. No.Page. No.

1.1. AcknowledgementAcknowledgement 22

2.2. Research MethodologyResearch Methodology 33

3.3. Research questions and HypothesisResearch questions and Hypothesis 33

4.4. IntroductionIntroduction 44

5.5. Deceptions: Legal and IllegalDeceptions: Legal and Illegal 66

6.6. Prohibited Deceptions: What Constitutes PerfidyProhibited Deceptions: What Constitutes Perfidy88

77.. The Concept of PerfidyThe Concept of Perfidy 1010

8.8. General Definitions of PerfidyGeneral Definitions of Perfidy 1111

9.9. Drawing the Thin Line between Ruses and PerfidyDrawing the Thin Line between Ruses and Perfidy

1313

10.10. Recent Developments in the Concept of PerfidyRecent Developments in the Concept of Perfidy 1616

11.11. ConclusionConclusion 1717

12.12. BibliographyBibliography 1818

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ACKNOWLEDGEMENT

I wish to acknowledge my sincere thanks to Mr. Rishikesh Dave, Faculty of Human Rights

and International Humanitarian Law, who granted me an opportunity to research on this topic

as a partial fulfillment of the course. I also acknowledge my sincere thanks to the librarian and

other staff of the library for being helpful in providing me with the required research material

for accomplishment of this exiguous effort of mine. I sincerely thank you all.

Bhaskar Banerji

(06A032)

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RESEARCH METHODOLOGY

Research Questions

1. Are Deceptions allowed in an International Armed Conflict?

2. Are Stratagems and Ruses of war permitted an International Armed Conflict?3. What is the Concept of Perfidy?

4. What are the interpretations of the definitions of Perfidy?

5. Is Perfidy allowed in an International Armed Conflict?

6. Is there any distinction between Ruses of war and Perfidy?7. What are the Recent Developments in the Concept of Perfidy?

Hypothesis

International Humanitarian Law specifically prohibits Perfidy. However, the recent

developments suggest that the concept should be construed liberally.

Aims and objective

The aim of this project is to analyze the concept of Perfidy and trace its recent developments.

Research Methodology

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The research conducted during preparation of this report is purely doctrinal. Help of case laws

and judgments, library resources, reports consulted, internet sources has been taken to

incorporate the research work in this project.

Word Limit

No. of Words Used 2996.

INTRODUCTION

THE law of armed conflict permits deceiving the enemy through stratagems and ruses of war

intended to mislead him, to deter him from taking action, or to induce him to act recklessly,

provided the ruses do not violate rules of international law applicable to armed conflict.1

THE law of armed conflict, or the law of war, is that body of public international law

governing the conduct of hostilities and the protections of victims of war. It encompasses the

Law of The Hague and the Law of Geneva. The Law of The Hague deals principally with

weapons and methods of warfare and was codified by the 1899 and 1907 Hague Peace

Conferences.2 The law relating to the protection of war victims has been contained in the

1 D. SCHINDLER & J. TOMAN, THE LAWS OF ARMED CONFLICT 3 (3d ed. 1988) (Instructions for the

Government of Armies of the United States in the Field, art. 101, prepared by Francis Lieber, promulgated as

General Orders No. 100, by President Abraham Lincoln on April 24, 1863) [hereinafter Lieber Instructions];

Regulations Annexed to Hague Convention No. IV respecting the Laws and Customs of War on Land, Oct. 18,1907, art. 24, 36 Stat. 2277, T.S. No. 539 [hereinafter Hague Regulations]; Protocol Additional to the Geneva

Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts

(Protocol I), June 8, 1977, art. 37(2), 1125 U.N.T.S. 3 [hereinafter Geneva Protocol I]. These rules are

considered applicable to warfare at sea. See Hall, False Colors and Dummy Ships: The Use of Ruse in NavalWarfare, 42 NAVAL WAR C. REV. 52, 54-55 (1989) (flowchart for analysis of proposed deception in warfare

at sea).2

See The Convention with Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1823, T.S.No. 403, 89 U.N.T.S. 93; The Convention Regarding the Laws and Customs of Land Warfare, Oct. 18, 1907, 36

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various Geneva Conventions (of 1864, 1906, 1929, and 1949).3 Recently, this law has been

somewhat merged in the 1977 Protocols Additional to the 1949 Geneva Conventions, since

part III of Protocol I deals with methods and means of warfare. As a result, a new term, "rules

of international law applicable in armed conflict," was introduced by Geneva Protocol I to

encompass "the rules applicable in armed conflict set forth in international agreements to

which the Parties to the conflict are Parties and the generally recognized principles and rules

of international law applicable in armed conflict."4

The two fundamental principles of International Humanitarian Law are that of Chivalry and

Stratagems, which encompass both legal and illegal deceptions. Chivalry is the principle that

prohibits certain types of deceptions called perfidy, or treachery, in military operations.

Ruses are the legally permissible acts of deception. 5

Stat. 2277, T.S. No. 539, 99 U.N.T.S. 149.

3See The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forcesin the Field, Aug. 12, 1949, 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31 [hereinafter First Geneva

Convention]; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked

Members of the Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85 [hereinafter Second Geneva Convention]; Geneva Convention Relative to the Treatment of Prisoners of War,

Aug. 12, 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135 [hereinafter Third Geneva Convention];

Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T.

3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention] [hereinafter, collectively,

Geneva Conventions of 1949]; The Geneva Convention Relative to the Treatment of Prisoners of War, July 27,

1929, 47 Stat. 2021, T.S. No. 846, 118 L.N.T.S. 343; The Geneva Convention for the Amelioration of theCondition of the Wounded and the Sick of Armies in the Field, July 27, 1929, 47 Stat. 2074, T.S. No. 847, 118

L.N.T.S. 303; The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick inArmies in the Field, July 6, 1906, reprinted in, D. SCHINDLER & J. TOMAN, supra note 1, at 301; The Geneva

Convention for the Amelioration of the Wounded in Armies in the Field, Aug. 22, 1864, 22 Stat. 940, T.S. No.

377.

4 Geneva Protocol I, supra note 1, art. 2(b).5

Thomas C. Wingfield, Chivalry in the Use of Force, 32 U. TOL. L. REV. 111, 112 (2001) at 132.

6
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DECEPTIONS: LEGAL AND ILLEGAL

PERMITTED DECEPTIONS:

Stratagems and ruses of war permitted in armed conflict include such deceptions as

camouflage, deceptive lighting, dummy ships and other armament decoys, simulated forces,

feigned attacks and withdrawals, ambushes, false intelligence information, electronic

deceptions, and utilization of enemy codes, passwords and countersigns.6

6

UNITED STATES DEPARTMENT OF THE NAVY, LAW OF NAVAL WARFARE - NWIP 10- 2 640 n.41(1955) (reprinted as the appendix to R. TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA (1955));

UNITED STATES DEPARTMENT OF AIR FORCE, AIR FORCE PAMPHLET 110-34: COMMANDER'SHANDBOOK ON THE LAW OF ARMED CONFLICT 5-1 (1980) [hereinafter AIR FORCE PAMPHLET

110-34]; UNITED STATES DEPARTMENT OF AIR FORCE, AIR FORCE PAMPHLET 110-31:

INTERNATIONAL LAW--THE CONDUCT OF ARMED CONFLICT AND AIR OPERATIONS 8-3(b), 8-

4 (1976) [hereinafter AIR FORCE PAMPHLET 110-31]; UNITED STATES DEPARTMENT OF THE ARMY,

ARMY FIELD MANUAL 27- 10: THE LAW OF LAND WARFARE 51 (1956) [hereinafter ARMY FIELD

MANUAL 27-10]; UNITED STATES DEPARTMENT OF THE ARMY, ARMY PAMPHLET 27-161-2:INTERNATIONAL LAW VOLUME II 57 (1962) [hereinafter ARMY PAMPHLET 27-161-2]; BRITISH

MANUAL OF MILITARY LAW pt. 3, 312 (1958); 2 L. OPPENHEIM, INTERNATIONAL LAW, ATREATISE 340-42 (H. Lauterpacht ed. 7th ed. 1952); Geneva Protocol I, supra note 1, art. 37(2). See G.

HARTCUP, CAMOUFLAGE: A HISTORY OF CONCEALMENT AND DECEPTION IN WAR (1980); V.

MATSULENKO, CAMOUFLAGE: A SOVIET VIEW (SOVIET MILITARY THOUGHT) (United States Air

Force trans. 1989); and D. GLANTZ, SOVIET MILITARY DECEPTION IN THE SECOND WORLD WAR

(1989). These acts are not perfidious because they do not invite the confidence of the enemy with respect to

protection under the law. Geneva Protocol I, supra note 1, art. 37(2).

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Other permissible deceptions include traps; mock operations (such as the feigned amphibious

assault on Kuwait City during Operation Desert Storm); feigned retreats or flights; surprise

attacks; simulation of quiet and inactivity; using small units to simulate large units; using

dummy aircraft, vehicles, airfields, weapons, and mines to create a fictitious force; moving

landmarks and route markers; pretending to communicate with forces or reinforcements that

do not exist; making deceptive supply movements; and allowing false messages to fall into

enemy hands. It is permissible to attempt to frustrate target intelligence activity, for example

by the employment of ruses to conceal, deceive, and confuse reconnaissance means. The

prohibition in Geneva Protocol I against the use of the adversary's "military emblems, insignia

or uniforms" refers only to concrete visual objects and not to his signals and codes.7 The

United States does not support the prohibition in article 39 on the use of enemy emblems and

uniforms during military operations except in actual armed engagement.

Air Force Pamphlet 110-318 provides the following additional examples of lawful ruses:

(1) The use of aircraft decoys. Slower or older aircraft may be used as decoys to lure hostile

aircraft into combat with faster and newer aircraft held in reserve.

(2) Staging air combats.

(3) Imitation of enemy signals. No objection can be made to the use by friendly forces of thesignals or codes of an adversary. The signals or codes used by enemy aircraft or by enemy

ground installations in contact with their aircraft may properly be employed by friendly forces

to deceive or mislead an adversary.

(4) Use of flares and fires. The lighting of large fires away from the true target area for the

purpose of misleading enemy aircraft into believing that the large fires represent damage from

prior attacks and thus leading them to the wrong target is a lawful ruse.

7The travaux preparatoires of Protocol I are set forth in an article-by-article basis in H. LEVIE, PROTECTIONOF WAR VICTIMS: PROTOCOL I TO THE 1949 GENEVA CONVENTIONS (1981). See also M. BOTHE,

K. PARTSCH & W. SOLF, NEW RULES FOR VICTIMS OF ARMED CONFLICTS 1-603 (1982) [hereinafter

NEW RULES]; INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE

ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949

19-1304 (1987) [hereinafter ICRC COMMENTARY].

8 AIR FORCE PAMPHLET 110-31, supra note 6, 8-4(b).

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(5) Camouflage use. The use of camouflage is a lawful ruse for misleading and deceiving

enemy combatants.

(6) Operational ruses. The ruse of the "switched raid" is a proper method of aerial warfare in

which aircraft set a course, ostensibly for a particular target, and then, at a given moment,

alter course in order to strike another military objective instead. This method was utilized

successfully in World War II to deceive enemy fighter interceptor aircraft.

While it is common practice among nations to place national markings on both military

aircraft and vessels, it is unclear if international law requires nations to do so. The legality of

the use of unmarked military aircraft or vessels is unsettled as operational requirements

occasionally dictate that markings not be used.9 Failure to mark military aircraft and vessels

clearly results in the loss of certain privileges and immunities for such aircraft or vessels, and

quite likely for the crew as well.10

The use of deceptive measures to thwart precision guided weapons is legally permissible.

Flares, smoke, aerosol material and dissemination devices can lawfully be used as

countermeasures against visually guided, laser-guided, infrared, and television-guided

missiles. Chaff is a lawful countermeasure against active radar-homing missiles. Infrared-

absorbing paint and flare technology are lawful countermeasures against infrared sensors.It would be a legitimate ruse to use the electronic transponder aboard a combatant aircraft to

respond with the code used for identifying friendly aircraft ("IFF").

PROHIBITED DECEPTIONS: WHAT CONSTITUTES PERFIDY?

9

Compare Jacobsen, A Juridical Examination of the Israeli Attack on the U.S.S. Liberty, 36 NAVAL L.REV.41-44 (1986) (use of unmarked Israeli aircraft to attack U.S.S. Liberty on June 8, 1967) with AIR FORCEPAMPHLET 110- 31, supra note 6, 7-4 (superfluous marking not required, such as "when no other aircraft

except those belonging to a single state are flown").

10See Convention on the Law of the Sea, arts. 29, 107, U.N. Doc. A/CONF. 62/WP.10/REV. 2 (1982); andConvention on International Civil Aviation, Dec. 7, 1944, arts. 20, 89, 61 Stat. 1180, T.I.A.S. No. 1591, 15

U.N.T.S. 295 (reflecting customary international law on the importance of external markings on aircraft and

vessels).

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The use of unlawful deceptions is called "PERFIDY." Acts of perfidy are deceptions

designed to invite the confidence of the enemy to lead him to believe that he is entitled to, or

is obliged to accord, protected status under the law of armed conflict, with the intent to betraythat confidence.11 Feigning surrender in order to lure the enemy into a trap is an act of

perfidy.12

This definition appears for the first time in Geneva Protocol I;13 perfidy had not been

previously defined in treaty law. The United States supports the principle that "individual

combatants not kill, injure, or capture enemy personnel by resort to perfidy."14 The rationale

of this rule is that if protected status or protective signs, signals, symbols, and emblems are

abused they will lose their effectiveness and put protected persons and places at additional

risk.

11 As to the drafting history of the prohibition of perfidy in Art.37, para.1 API see in particular Furrer, 62-80.12

2 L. OPPENHEIM, supra note 6, at 342.

13 Geneva Protocol I, supra note 1, art. 37(1).14

Sixth Annual Conference, supra note 6, at 425 (remarks of U.S. Department of State Deputy Legal AdviserMatheson).

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THE CONCEPT OF PERFIDY

Perfidy means the breaking, or a breach, of faith, and it devolves from the concept of chivalry

that originated during the Middle Ages.15 The term perfidy refers to acts misleading the

adverse party into the belief that there is a situation affording protection under international

law (e.g. humanitarian agreement to suspend combat with the intention off attacking by

surprise the adversary relying on the agreement.16

The prohibition against perfidy was first codified in Article 23(b) of the Hague Regulations.17

As codified in Article 37 of Protocol I, perfidy means the abuse of a protected status under the

LOW to gain an advantage over the enemy.18 Article 37(1) of Protocol I states:

15See de Preux, in ICRC Commentary, 434 (para. 1498);Fordham University, Medieval Sourcebook: Humbertde Romans, On Markets & Fairs, c. 1270, available at http:// www.fordham.edu/halsall/source/1270romans.html

(last visited Feb. 20, 2004).

16 Protocol I, supra note 1, art. 37(1).17

Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulation Concerning theLaws and Customs of War on Land, The Hague, 18 October 1907 [hereinafter Hague Regulations], art. 23 (b).

Article 23(b) states, "[I]t is especially forbidden .... [t]o kill or wound treacherously individuals belonging to thehostile nation or army ...." Id. This provision stills applies as customary international law. Commentary on the

Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of

Non-International Armed Conflicts 515 [hereinafter Commentary, Protocol I] at 431.18

Commentary, Protocol I, Supra note 16, at 430-35; MICHAEL BOTHE ET AL., NEW RULES FOR VICTIMS

OF ARMED CONFLICTS: COMMENTARY ON THE TWO 1977 PROTOCOLS ADDITIONAL TO THE

GENEVA CONVENTIONS OF 1949, at 243 (1982).

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It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the

confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord,

protection under the rules of international law applicable in armed conflict, with intent to

betray that confidence, shall constitute perfidy. The following acts are examples of perfidy:

1. The feigning of an intent to negotiate under a flag of truce or of a surrender;

2. The feigning of an incapacitation by wounds or sickness;

3. The feigning of civilian, non-combatant status; and

4. The feigning of protected status by the use of signs, emblems or uniforms of the

United Nations or of neutral or other States or Parties to the conflict.19

The United States interprets Article 37 of Protocol I to reflect customary international law. 20

The intent of Article 37(1) is to prevent the dissolution of certain fundamental protections

under the Law of War (LOW). As the Commentary to Protocol I states, "The central element

of the definition of perfidy is the deliberate claim to legal protection for hostile purposes."21 If

parties to a conflict were allowed to lure an enemy into an unfavorable situation by feigning a

protected status, respect for these protections would slowly dissipate until they were

meaningless, with fateful consequences for the persons the LOW intends to protect. 22 As a

result, Article 37(1) limits perfidy to those acts involving the fundamental protectionsafforded the wounded and sick, noncombatants or civilians, neutral parties, and flags of truce

or surrender. Notably, Article 37(1)(a)-(d) only provides examples of prohibited acts of

perfidy, not an exhaustive list.23

19

Protocol I, supra note 1, art. 37(1).20

Michael J. Matheson, Remarks in Session One: The United States Position on the Relation of Customary

International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT'L L. &

POL'Y 419, 425 (1987) at 42521

Commentary. Protocol I, supra note 15, at 435.22

BOTHE ET AL., supra note 17, at 202-03.

23 Id. at 205.

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GENERAL DEFINITIONSOF PERFIDY:

The definition of Perfidy has been provided in many International Conventions. In order to

understand the concept of perfidy it is important to analyze all the definitions. The followinginternational conventions define perfidy:-

THE LIEBER CODE, 1863 The Lieber Code clearly laid down that 'the common law of

war allows even capital punishment for clandestine or treacherous attempts to injure

an enemy, because they are so dangerous, and it is so difficult to guard against them'.24

THE HAGUE REGULATIONS, 1923- The Hague Regulations25 declared that it was

'especially forbidden ... [t]o kill or wound treacherously individuals belonging to the

hostile nation or army'.26 The Hague Regulations treachery prohibition is believed to

broadly encompass various types of attacks on civilians and combatants, including

acts of perfidy.27

1ST ADDITIONAL PROTOCOLTOTHE GENEVA CONVENTION Provides the latest definition

of perfidy. The recent perfidy prohibition both refines the scope of prohibited conduct

and more precisely delimits its objects and purpose. Article 37(1) of AP I provides that

it is prohibited to kill, injure or capture an adversary by resort to perfidy'. Hnece, AP

I appear to limit the potential victims of perfidy to the Lieber Code scope of combatant

adversaries. Such an approach is logical given the first porotocols numerous

provisions protecting non-combatants.28Article 37(1) then defines acts of perfidy as

'acts inviting the confidence of an adversary to lead him to believe that he is entitled

24

US War Department, General Orders 100: Instructions for the Government of Armies of the United States inthe Field (1863) [hereinafter Lieber Code] Art. 101, reprinted in Laws of Armed Conflict, The Laws of Armed

Conflict: A Collection of Conventions, Resolutions, and Other Documents (3rd edn., Dordrecht: Nijhoff, 1988)[hereinafter Laws of Armed Conflict], at 3- 23.

25 Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulation Concerning the

Laws and Customs of War on Land, The Hague, 18 October 1907.26

Ibid., Art. 23(b).27

See M. Greenspan, The Modern Law of Land Warfare (Berkeley: University of California Press, 1959)(defining treachery not only to include assassinations, hiring assassins, putting a price on the enemy's head, 'dead

or alive' rewards, but also other acts which fall within the modern definition of perfidy); Y. Dinstein, The

Conduct of Hostilities under the Law of Armed Conflict (Cambridge: Cambridge University Press, 2004), 199,

202.

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to, or is obliged to accord, protection under the rules of international law applicable in

armed conflict, with intent to betray that confidence'.

DRAWINGTHE THIN LINE BETWEEN RUSESAND PERFIDY:

It is important not to confuse perfidy with legitimate ruses of war, which Article 37(2)

specifically permits.29 Legitimate ruses involve deception, but not a breach of faith involving

a protection applicable under the LOW.30Further, Article 37(1) of Protocol I does not prohibit

all the acts of perfidy occurring during armed conflict. Article 37(1) essentially focuses on

combat by only prohibiting those acts of perfidy that result in the death, injury, or capture of

an adversary.31 Furthermore, the act of perfidy must be the proximate cause of the death,

injury, or capture of the enemy.32 The Commentary to Protocol I considers this a specific

weakness of Article 37 because it may be almost impossible to determine where to draw the

line.33Additionally, if the intent of Article 37 is to prevent the dissolution of certain

fundamental protections under the LOW, limiting perfidious conduct only to those acts which

28 As non-combatants they fall within the definition of civilians and therefore under general protection from

attack. AP I, supra note 1 Arts 48-51.29

See Protocol I, supra note 1, art. 37(2). Article 37(2) of Protocol I provides:Ruses of war are not prohibited. Such ruses are acts which are intended to mislead an adversary or to induce

him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are

not perfidious because they do not invite the confidence of an adversary with respect to protection under the law.

The following are examples of such ruses: camouflage, decoys, mock operations and misinformation.

30 BOTHE ET AL., supra note 17, at 206-07. Bothe states: "The essential distinction between perfidy and

treachery on the one hand, and non-perfidious deception is that the latter neither contravenes any specific rulesof international law applicable in armed conflict, nor invites confidence of an adversary with respect to

protection under international law."31

Id. at 203-04; Commentary, Protocol I, supra note 16, at 432-33.32

BOTHE ET AL., supra note 17, at 204.33 Commentary, Protocol I, supra note 16, at 432-35.

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result in death, injury, or capture of the enemy may not go far enough in ensuring respect for

these protections.34

The Commentary to Protocol I also suggests that an attempted act of perfidy that Article 37(1)

would prohibit (if the act were successful) should likewise be prohibited. The rationale is that

a party should not benefit from the failure of an otherwise punishable act. Eminent author

Fleck disagrees, saying that failure to actually kill, injure, or capture the enemy through one

of the means listed in Article 37(1)(a)-(d) is not perfidious within the plain meaning of Article

37. Fleck submits that his position accords with the belief of most parties who participated in

Article 37's drafting.35

The positive and negative aspects of Additional Protocol I create the potential for confusion.

All abuses of protected status to kill, injure or capture the enemy violate the perfidy

prohibition. There is no need for an independent rule of IHL, such as those regarding misuse

of 'recognized emblems',36 to establish a violation. Ruses must not violate other IHL

prohibitions, and also must not be perfidious. So, for example, using a flag of truce to delay

the enemy either for a retreat or withdrawal is a misuse of a recognized emblem in violation

of Article 38(1) of AP I. Although it is not perfidious, it is still an impermissible ruse.37

The portion of Article 37 directly relevant to the fictional scenario at the beginning of this

article is paragraph (1)(c), which prohibits the killing, injuring, or capture of an enemy by

34BOTHE ET AL., supra note 17, at 204. The Commentary to Protocol I acknowledges that limiting prohibitedperfidy to only those acts intended to kill, injure, or capture creates a gray area not satisfactorily addressed by the

current version of Article 37(1). The Commentary states:

Moreover, it seems that a prohibition which is restricted to acts which have a definite result would give the

parties to the conflict a considerable number of possibilities to indulge in perfidious conduct which was not

directly aimed at killing, injuring, or capturing the members of the armed forces of an adverse party, but at

forcing them to submit to tactical or operational measures which will be to their disadvantage ... people will then

be killed, injured, or captured in the course of combat. It will be no easy matter to establish a causal relation

between the perfidious act that has taken place and the consequences of combat .... This gray area forms asubject of permanent controversy in practice as well as in theory.

Commentary, Protocol I, supra note 16, at 432-33.

35Dieter Fleck et al., The Handbook of Humanitarian Law in Armed Conflicts 76 (1995).

36 Protocol I, supra note 1, Art. 38.37

Y. Dinstein, The Conduct of Hostilities under the Law of Armed Conflict (Cambridge: Cambridge University

Press, 2004) at 204.

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"feigning ... civilian, non-combatant status."38 The original International Committee of the

Red Cross (ICRC) draft of Article 37(1)(c) submitted to the drafting committee reads "the

disguising of combatants in civilian clothing."39 The drafting committee found that the version

of Article 37(1)(c) as it currently reads was more accurate and comprehensive. While

ultimately rejected, the proposed ICRC draft indicates Article 37(1)(c)'s ultimate intent. Of

note, commentators consider the comma between the words "civilian" and "noncombatant" in

Article 37(1)(c) to be the conjunction "or" as reflected in the French translation of Protocol

I.40

As previously mentioned, Article 50 of Protocol I defines a civilian as anyone not fitting

Protocol I Article 43's definition of combatant.41 Under Article 4 of the GPW and Article 43

of Protocol I, members of the regular armed forces of a party, and certain other categories of

individuals, are considered combatants.42 An inherent characteristic of combatants is the

requirement that they wear a distinctive sign or emblem, or somehow ensure that they

distinguish themselves from the civilian population.43 This is the quid pro quo for being

accorded combatant immunity. It follows then that combatants who fail to distinguish

themselves from the civilian population, or actually disguise themselves as civilians, are

"feigning ... civilian, non-combatant status,"44 and if they kill, injure, or capture the enemy as

a result, they have violated Article 37(1)(c).

In discussing Article 37(1)(c), the Commentary states:

A combatant who takes part in an attack, or in a military operation preparatory to an attack,

can use camouflage and make himself virtually invisible against a natural or man-made

38 Protocol I, supra note 1, art. 37(1)(c).39Commentary, Protocol I, supra note 16, at 436-37; BOTHE ET AL., supra note 17, at 205-06.

40 BOTHE ET AL., supra note 17, at 206; Ipsen, Perfidy, EPIL 4, 131.41

Protocol I, supra note 3, art. 50.42

Geneva Convention Relative to the Treatment of Prisoners of War. Aug. 12, 1949, art. 4(A)(1), 6 U.S.T. 3316,75 U.N.T.S. 135 [hereinafter GPW].

art. 3; Protocol I, supra note 3, art. 43.43

Ibid Art. 4A(2).44

Protocol I, supra note 3, art. 37(1)(c).

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background, but he may never feign a civilian status and hide amongst a crowd. This is the

crux of the rule.45

It is understandable why this is the crux of the rule. An increased protection for civilians was

one of the primary goals of the drafters of Protocol I. Once combatants begin disguising

themselves as civilians, or failing to distinguish themselves from civilians, to gain an

advantage over the enemy, civilians will become suspect and ultimately targets in

international armed conflict. Combatants cannot be expected to honor protections accorded

under the LOW if their opponent continuously abuses these protections to gain military

advantage. Fleck made perhaps the strongest statement the author found on the importance of

Article 37(1)(c):

Of most importance in that respect is [Article 37(1)(c)], because the feigning of civilian, non-

combatant status in order to attack the enemy by surprise constitutes the classic case of

"treacherous killing of an enemy combatant" which was prohibited by Article 23(b) of the

Hague Regulations; it is the obvious case of disgraceful behavior which can (and should) be

sanctioned under criminal law as a killing not justified by the laws of war, making it a

common crime of murder. Obscuring the distinction between combatants and civilians is

extremely prejudicial to the chances of serious implementation of the rules of humanitarian

law; any tendency to blur the distinction must be sanctioned heavily by the internationalcommunity; otherwise the whole system based on the concept of distinction will break

down.46

Statements such as these from Fleck and from the Commentary should leave no doubt of the

importance the international community places on the fundamental principle of distinction.

RECENT DEVELOPMENTS INTHE CONCEPTOF PERFIDY:

45

Commentary, Protocol I, supra note 11, at 438.46 FLECK ET AL., supra note 34, at 471. See also BOTHE ET AL., supra note 17, at 205 ("Example (c)reinforces the principle of distinction between combatants and the civilian population and is therefore

indispensable to the protection of civilians against the hazards of war, a principal goal of Protocol I.").

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The recent humanitarian mission carried out by Colombian forces has raised a controversy

regarding the topic of perfidy. On 2nd July, 2008 the Colombian forces rescued 15 hostages

from the Fuerzas Armadas Revolucionarias de Colombia guerilla group. During the rescuemission Colombian forces disguised themselves as humanitarian activists and feigned the

non- combatant status.

The Colombian commandos and intelligence agents posed as aid workers and journalists, and

during the operation they wore the emblem of the International Committee of Red Cross. The

above action can be safely deemed to be perfidious capture. However, it is interesting to note

that there was hardly any criticism of the aforementioned mission. UN Secretary General47,

US Presidential Candidates48 and Human rights organizations welcomed the news and were

supportive of future efforts to free remaining hostages.49

Thus it can be clearly deciphered that there has been a metamorphosis of the concept of

Perfidy over the years. The touchstone of the concept lies on the intention of parties (i.e. bad

faith). Hence, interpretation of Ar. 37(1) should be done liberally.

CONCLUSION:

I wish to conclude my project by saying that perfidy is an unacceptable means of getting

advantage and is hence prohibited by International Humanitarian Law. However, the concept

47Press Release, 'Secretary-General Welcomes Liberation of 15 Colombian Hostages', 2 July 2008 [hereinafterUN Sec. Gen. Press Release], available online at http://www.un.org/apps/news/story.asp?

NewsID=27253&Cr=colombia&Cr1= (visited 7 September 2008).

48

'Candidates React to Hostage Rescue in Colombia', Washington Post, 2 July 2008, available online athttp://blog.washingtonpost.com/the-trail/2008/07/02/mccain_on_hostage_rescue_in_co.html?hpid=topnews

(visited 7 September 2008).49

Human Rights Watch stated that 'in light of reports that there were no civilian casualties, the Colombian securityforces should be commended for carrying out an effective mission that respected international humanitarian law'.

Human Rights Watch, 'Colombia: 15 Hostages Rescued by Security Forces', 2 July 2008 [hereinafter HRW Press

Release] available online at http:// hrw.org/english/docs/2008/07/02/colomb19247_txt.htm (visited 7 September

2008).

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of perfidy has undergone a change over a period of time and the contemporary situation

shows that Ar. 37(1) of the 1st Protocol is being interpreted liberally.

BIBLIOGRAPHY

BOOKS REFERRED:

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Akehursts, Modern Introduction to International Law, Peter Malanczuk, Seventh

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Alina Kaczorowska, Pubilc International Law, Old Bailey Press, First Ed.,2002

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