06A032 IHL Project

 HE  C  ONCEPT  ONCEPT  OF  P   ERFIDY  IN   ERFIDY  IN  I   NTERNATIONAL H  UMANITARIAN  L AW  UMANITARIAN  T 

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 06A032 Gujarat National

Reg. Law

no.

University

Semester VI B.S.C (Hons.)

LL.B.

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW

Date of Submission: 18th March, 2009.

Table of contents Sr. No.

Contents

Page. No.

1.

Acknowledgement

2

2.

Research Methodology

3

3.

Research questions and Hypothesis

3

4.

Introduction

4

5.

Deceptions: Legal and Illegal

6

6.

Prohibited Deceptions: What Constitutes Perfidy

8 7.

The Concept of Perfidy

10

8.

General Definitions of Perfidy

11

9.

Drawing the Thin Line between Ruses and Perfidy

13 10.

Recent Developments in the Concept of Perfidy 16

11.

Conclusion

17

12.

Bibliography

18 2

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW

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)

3

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW

RESEARCH METHODOLOGY

Research Questions 1. 2. 3. 4. 5. 6. 7.

Are Decepti Deceptions ons allowed allowed in in an Intern Internationa ationall Armed Armed Conflict Conflict?? Are Stratagem Stratagemss and Ruses of of war permitt permitted ed an Internatio International nal Armed Armed Conflict? Conflict? What What is is the the Conce Concept pt of of Perf Perfidy idy?? What are are the interpre interpretatio tations ns of the the definition definitionss of Perfidy Perfidy?? Is Perfid Perfidy y allowed allowed in an Internati International onal Armed Armed Conflict Conflict?? Is there there any distinctio distinction n between between Ruses Ruses of war war and Perfidy? Perfidy? What are are the Recent Development Developmentss in the the Concept Concept of Perfidy? Perfidy?

Hypothesis Inte Intern rnat atio ional nal Huma Humani nita tari rian an Law Law speci specifi fica call lly y prohi prohibi bits ts Perf Perfid idy. y. Howev However er,, the the recen recentt 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

4

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW The research conducted during preparation of this report is purely doctrinal. Help of case laws and judgme judgments nts,, libra library ry resour resources ces,, report reportss consul consulted ted,, intern internet et source sourcess has been taken 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 con flict.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]; 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 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 Naval Warfare, 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

5

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW 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 prohibits certain types of deceptions 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. 3

See The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in 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 the Condition 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 in Armies 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

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW

DECEPTIONS: LEGAL AND ILLEGAL PERMITTED DECEPTIONS: Stra Strata tagem gemss and and ruse rusess of war war perm permit itte ted d in arme armed d conf confli lict ct incl includ udee such such dece decept ptio ions ns as camouflage, deceptive lighting, dummy ships and other armament decoys, simulated forces, feigne feigned d attack attackss and withdr withdrawal awals, s, ambush ambushes, es, false false intell intellige igence nce inform informati ation, on, electr electroni onicc 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 NEUTRALITY AT SEA (1955)); UNITED STATES DEPARTMENT OF AIR FORCE, AIR FORCE PAMPHLET 110-34: COMMANDER'S HANDBOOK ON THE LAW OF ARMED CONFLICT ¶ 5-1 (1980) [hereinafter AIR FORCE PAMPHLET 110-34 110-34]; ]; UNIT UNITED ED STAT STATES ES DEPA DEPARTM RTMEN ENT T OF AIR AIR FORCE FORCE,, AIR FORCE FORCE PAMPH PAMPHLE LET T 110-31 110-31:: INTERNATIONAL LAW--THE CONDUCT OF ARMED CONFLICT AND AIR OPERATIONS ¶¶ 8-3(b), 84 (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 MANUAL 27-10]; 27-10]; UNITED UNITED STATES STATES DEPART DEPARTMEN MENT T OF THE ARMY, ARMY PAMPHLET PAMPHLET 27-161-2: 27-161-2: INTERNA INTERNATION TIONAL AL LAW VOLUME II 57 (1962) (1962) [hereinaf [hereinafter ter ARMY PAMPHLET PAMPHLET 27-161-2]; 27-161-2]; BRITISH BRITISH MANUAL MANUAL OF MILITAR MILITARY Y LAW pt. 3, ¶ 312 (1958); 2 L. OPPENHEIM, OPPENHEIM, INTERNAT INTERNATIONA IONAL L LAW, LAW, A TREATISE 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).

7

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW

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 the signals 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.

7

The travaux preparatoires of Protocol I are set forth in an article-by-article basis in H. LEVIE, PROTECTION PROTECTION OF 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]; RULES]; INTERNA INTERNATIO TIONAL NAL COMMITTE COMMITTEE E OF THE RED CROSS, CROSS, COMMENTARY 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).

8

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW (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. Flar Flares es,, smok smoke, e, aero aeroso soll mate materi rial al and diss dissem emin inat atio ion n devi device cess can can lawf lawful ully ly be used used as counte counterme rmeasu asures res agains againstt visual visually ly guided, guided, laserlaser-gui guided ded,, infrar infrared, ed, and televi televisio sion-gu n-guide ided d missiles. Chaff is a lawful countermeasure against active radar-homing missiles. Infraredabsorbing 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 FORCE PAMPHLET 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").

10

See Convention on the Law of the Sea, arts. 29, 107, U.N. Doc. A/CONF. 62/WP.10/REV. 2 (1982); and Convention 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).

9

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW

The The use use of unlaw unlawfu full dece decept ptio ions ns is call called ed "PERFIDY." Acts Acts of perfid perfidy y are decept deception ionss 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 betray that 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 Adviser  Matheson).

10

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW

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 Ages..15 The term ‘perfidy’ refers to acts misleading the adverse adverse party into the belief belief that there is a situation situation affording affording protection protection under international 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. enemy.18 Article 37(1) of Protocol I states:

15

See de Preux, in ICRC Commentary, 434 (para. 1498); Fordham University, Medieval Sourcebook: Humbert de Romans, On Markets & Fairs, c. 1270, available at http:// www.fordham.edu/halsall/sour www.fordham.edu/halsall/source/1270romans.html ce/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 the Laws 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 the hostile nation or army ...." Id. This provision stills applies as customary international 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  Non-International Armed Conflicts 515 [hereinafter Commentary, 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).

11

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW 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 feigning of an intent intent to negotia negotiate te under a flag of of truce truce or of a surren surrender; der; 2. The feignin feigning g of an incapaci incapacitati tation on by wounds or sicknes sickness; s; 3. The feigni feigning ng of civilian, civilian, non-combatant non-combatant status; status; and and 4. The feigni feigning ng of protecte protected d status status by the use of signs, signs, emblem emblemss or unifor uniforms ms 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   prote protecte cted d status status,, respect respect for these these protec protecti tions ons would would slowly slowly dissip dissipate ate until until they they were were meaningless, with fateful consequences for the persons the LOW intends to protect.22 As a result, result, Article Article 37(1) limits limits perfidy to those those acts acts involv involving ing the fundam fundament ental al protec protectio tions ns afforded the wounded and sick, noncombatants or civilians, neutral parties, and flags of truce or surren surrender der.. Notabl Notably, y, Articl Articlee 37(1)( 37(1)(a)a)-(d) (d) only only provid provides es exampl examples es of prohib prohibite ited d acts 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 425 21

Commentary. Commentary. Protocol I, supra note 15, at 435. 22

BOTHE ET AL., supra note 17, at 202-03. 23

Id. at 205.

12

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW

GENERAL DEFINITIONS OF 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 following international conventions define perfidy:•

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

war allows even capital capital punishment punishment for clandestine clandestine or treacherous treacherous attempts attempts to injure an enemy, because they are so dangerous, and it is so difficult to guard against them'.24 •

THE HAGUE R EGULATIONS 1923EGULATIONS, 1923-

The Hague Hague Regula Regulati tions ons25 decl declar ared ed that that it was was

'especially 'especially forbidden forbidden ... [t]o kill or wound treacherously treacherously individuals individuals belonging to the hostile nation or army'. army'.26 The Hague Regulations Regulations treachery treachery prohibition prohibition is believed to  broadly encompass various types of attacks on civilians and combatants, including acts of perfidy. perfidy.27 •

1

ST

ADDITIONAL PROTOCOL

TO THE

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 A P 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 co mbatant adver adversa sari ries es.. Such Such an appr approa oach ch is logi logica call given given the the firs firstt poro poroto tocol col’s ’s numer numerou ouss   provisions protecting non-combatants.28 Article 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 in the 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 Greenspan,, The Modern Law of Land Warfare Warfare (Berkele (Berkeley: y: Universi University ty of Californi Californiaa Press, 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.

13

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence'.

USES AND PERFIDY: DRAWING THE THIN LINE BETWEEN R USES

It is import important ant not to confus confusee perfi perfidy dy with with legit legitima imate te ruses ruses of war, war, which which Articl Articlee 37(2) 37(2) specifically permits.29 Legitimate ruses involve deception, but not a breach of faith involving a protection applicable under the LOW.30 Further, Article 37(1) of Protocol I does not prohibit all the acts of perfidy perfidy occurring during armed conflict. conflict. Article 37(1) essentially essentially focuses on combat by only prohibiting those acts of perfidy that result in the death, injury, or capture of  an adversary.31 Furthermor Furthermore, e, the act of perfidy must be the proximate proximate cause of the death, injury, or capture of the enemy enemy..32 The Commentary to Protocol I considers this a specific weakness weakness of Article Article 37 because it may be almost impossible impossible to determine determine where to draw the line.33Addi Additi tion onall ally, y, if the the inte intent nt of Arti Articl clee 37 is to preve prevent nt the the diss dissol olut utio ion n of cert certai ain n 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. misinformation. “ 30

BOTHE ET AL., supra note 17, at 206-07. Bothe states: "The essential distinction between between perfidy and treachery on the one hand, and non-perfidious deception is that the latter neither contravenes any specific rules of 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. Commentary, Commentary, Protocol I, supra note 16, at 432-35.

33

14

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW 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 o f 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, disagrees, saying that failure to actually actually kill, injure, or capture 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 All abus abuses es of prot protect ected ed stat status us to kill kill,, inju injure re or capt captur uree the the enem enemy y viol violat atee the the perfi perfidy dy  prohibition. There is no need for an independent rule of IHL, such as those regarding misuse of 'recognized 'recognized emblems', emblems',36 to esta establ blis ish h a viol violat atio ion. n. Ruse Rusess must must not not viol violat atee othe otherr IHL 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 34

BOTHE ET AL., supra note 17, at 204. The Commentary to Protocol I acknowledges that limiting prohibited  perfidy to only those acts intended to kill, injure, or capture creates a gray area not satisfactorily 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 a subject of permanent controversy in practice as well as in theory.” Commentary, Commentary, Protocol I, supra note 16, at 432-33. 35

36

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

15

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW "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 Articl Articlee 37(1)( 37(1)(c) c) as it curren currently tly reads reads was more more accura accurate te and compre comprehen hensiv sive. e. While 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  individual individuals, s, are considered considered combatants. combatants.42 An inhere inherent nt charact characteri eristi sticc of combat combatant antss is the requir requireme ement nt that that they they wear wear a distin distincti ctive ve sign sign or emblem emblem,, or someho somehow w ensure ensure that they they distinguish themselves from the civilian population.43 This is the quid pro quo for being accord accorded ed combat combatant ant immun immunity ity.. It follow followss then then that that combat combatant antss who fail fail to disti distingui nguish sh themselves themselves from the civilian population, population, or actually actually disguise themselves themselves as civilians, 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

39

40

Protocol I, supra note 1, art. 37(1)(c). Commentary, Commentary, Protocol I, supra note 16, at 436-37; BOTHE ET AL., supra note 17, at 205-06. BOTHE ET AL., supra note 17, at 206; Ipsen, ‘Perfidy’, ‘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).

16

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW  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 themse themselve lvess as civili civilians ans,, or faili failing ng to distin distingui guish sh themse themselve lvess from from civili civilians ans,, to gain gain an adva advant ntag agee over over the the enem enemy, y, civi civili lian anss will will beco become me susp suspec ectt and and ulti ultima mate tely ly targ target etss 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, noncombatant 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; Regulations; it is the obvious case of disgraceful disgraceful behavior 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 international commun communit ity; y; otherw otherwise ise the whole whole syste system m based based on the concept concept of disti distinct nction ion will will break  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.

ECENT DEVELOPMENTS IN THE CONCEPT OF PERFIDY: R ECENT

45

Commentary, Commentary, Protocol I, supra note 11, at 438. FLECK ET AL., supra note 34, at 471. See also BOTHE ET AL., supra note 17, at 205 ("Example (c) reinfo reinforce rcess the princi principle ple of distin distincti ction on betwe between en combat combatant antss and the civili civilian an popula populatio tion n and is theref therefore ore indispensable to the protection of civilians against the hazards of war, a principal goal of Protocol I."). 46

17

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW

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 rescue mission 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 47

Press Release, 'Secretary-General Welcomes Liberation of 15 Colombian Hostages', 2 July 2008 [hereinafter  UN Sec. Sec. Gen. Gen. Pres Presss Rele Releas ase] e],, avai availa labl blee onli online ne at http http:/ ://w /www ww.u .un. n.or org/ g/ap apps ps/n /new ews/ s/st stor ory. y.as asp? p?  NewsID=27253&Cr=colombia&C  NewsID=27253&Cr=colombia&Cr1= r1= (visited 7 September 2008). 48

'Candidates React to Hostage Rescue in Colombia', Washington Post, 2 July 2008, available online at http://blog.washingtonpost.com/ http://blog.washingtonpost.com/the-trail/2008/07/ the-trail/2008/07/02/mccain_on_hostage 02/mccain_on_hostage_rescue_in_co.html _rescue_in_co.html?hpid=topnews ?hpid=topnews (visited 7 September 2008). 49

Human Rights Watch stated that 'in light of reports that there were no civilian casualties, the Colombian security forces 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/colo hrw.org/english/docs/2008/07/02/colomb19247_txt.htm mb19247_txt.htm (visited 7 September  2008).

18

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW of perfidy has undergone a change c hange 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:

•

Brownlie, Ian, “Principles of Public International Law”, Oxford, Oxford University Press, 5th Ed. (1998).

•

Harris, D., J., “Cases and Materials on International Law”, London, Sweet and Maxwell Publications, Publications, 6th Ed. (2004).

•

Basic Facts of the United Nations, News and Media Division, UN Department of  Public Information, Information, United Nations, Nations, New York, York, 2004

•

Shaw, Malcolm, “International Law”, Cambridge, Cambridge University Press, 5th Ed. (2003).

•

Schabas, William, An Introduction to the International Criminal Court, Cambridge University Press, 2002.

•

Arsanjani, Mahnoush H., ‘Jurisdiction and Triggering Mechanism of the International Criminal Court’ in ‘Reflections on the International Criminal Court’, ed. Herman A.M. von. Hebel, Lamers, Johan, Schukking, Jolien, T.M.C Asser Press,

•

Kriangsak, Kittichaisaree, ‘International Criminal Law’, Oxford University Press, Oxford, 2001.

•

Balach Balachandr andran an M.K., M.K., Varghes Varghesee Rose, Rose, ed. ‘Intro ‘Introduc ductio tion n to Intern Internati ationa onall Humani Humanitar tarian ian Law’, International Committee of The Red Cross, Regional Delegation, New Delhi, 1999.

•

Oppenheim’s International Law, Sir Robert Jennings ed. (et al), Volume 1, Peace, Parts 2-4, Pearson Education Publications, Delhi, Ninth edition, (2003) 19

THE CONCEPT OF PERFIDY IN I NTERNATIONAL HUMANITARIAN LAW •

Akehurst’s, Modern Introduction to International Law, Peter Malanczuk, Seventh Ed.

•

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

20