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Commentary - Prohibition of perfidy
    [p.429] Article 37 -- Prohibition of perfidy


    [p.430] General remarks

    1483 Literally speaking, perfidy means the breaking of faith, and the problem of bad faith may present itself in time of peace or in time of armed conflict with regard to the whole field of international relations, whether at a political level, implicating only those participating in the decision-making process, or at the level of the application of the rules. (1)

    1484 The title of this article, "Prohibition of perfidy", as well as the definition of perfidy given in the article, should not give rise to confusion. The article is concerned only with acts that take place in combat, as is clear from the scope of this Part, as well as this Section. Thus this prohibition is formulated with reference to those participating in hostilities, and the present article only aims to provide for that aspect of the problem.

    1485 Article 35 ' (Basic rules), ' paragraph 1, which limits the choice of methods and means of warfare, is not only concerned with technical matters. For the Parties to the conflict and the combatants it also implies a certain type of conduct during combat which meets various criteria of honour (2) and humanity.

    1486 The rules regarding honour are basically concentrated in Articles 37 , 38 ' (Recognized emblems) ' and 39 ' (Emblems of nationality). ' However, various other provisions -- Articles 44 ' (Combatants and prisoners of war), ' paragraph 3 (open [p.431] carrying of arms), and 46 ' (Spies), ' paragraph 3 (the clandestine gathering of information) -- are directly related to the same principle. (3)

    1487 This correlation is actually so important that some delegations at the Diplomatic Conference wished to defer the discussion of the problem of perfidy until other provisions concerned in Part III had also been studied. (4) The Working Group of Committee III in practice followed up this suggestion.

    1488 Finally, this Part does not aim to replace the Hague Regulations of 1907, but is concerned with developing them, (5) and thus it is clear that the prohibition on the treacherous killing or wounding of individuals belonging to the nation or the army of the enemy, as formulated in Article 23 (b) of the Regulations, has survived in its entirety. (6) However, the term "trahison" in the French text is too restricted in its meaning, an for that reason the term "perfidie" (perfidy) was preferred here. (7)

    1489 It is not certain it is because of the inadequate wording of the Hague Regulations, whether decline in the respect for general international law, or a declining sense of morality (8) but the fact is that experts have always agreed [p.432] unanimously on the necessity of reaffirming this prohibition. (9) This was also the occasion for providing a general definition of perfidy for the first time. This definition though both very useful and welcome, is not without weaknesses.

    Paragraph 1 -- Scope of the prohibition and definition

    1490 Paragraph 1 explicitly prohibits a particular category of acts of perfidy, as well as giving a definition of acts of perfidy. Despite the wish which was expressed repeatedly during the preliminary discussions and during the Conference itself, (10) it was not the prohibition of perfidy ' per se ' which was the prime consideration of Article 37 , but only the prohibition of a particular category of acts of perfidy. (11)

    ' First sentence -- The scope of the prohibition '

    1491 Following the Hague Regulations (Article 23(b) ), (12) the prohibition only concerns the killing, injuring or capturing of an adversary by resort to perfidy. For reasons given above, the term "treachery", which was considered to be too narrow, was abandoned in favour of the term "perfidy"; moreover, the capture of the adversary was added to the two former prohibitions on "killing" and "injuring". However, bearing these considerations in mind, the present Article 37 is limited to the framework defined by the 1907 Regulations, and therefore the present article only condemns perfidy in the sense of the first sentence of the article. (13) Nevertheless, this does not mean that even within these limitations, the interpretation of perfidy will always be easy.

    1492 The problems arising from this provision seem to have been aptly revealed by members of a delegation to the Diplomatic Conference in a study of the results of the Conference. According to the authors of this study, the prohibition of perfidy has its weak points. If only the fact of killing, injuring or capturing an adversary by resort to perfidy constitutes a perfidious act, the question arises what an unsuccessful attempt would be called. 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 the adverse party, but at forcing them to submit to tactical or operational measures which will be to their disadvantage [p.433] (raising the white flag for the sole purpose of deflecting or delaying an attack is not a direct violation of the prohibition contained in the first sentence even though it is a violation of Article 23(f) of the Hague Regulations). On the other hand, 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. The authors consider that it follows that there remains a sort of grey area of perfidy which is not explicitly sanctioned as such, in between perfidy and ruses of war. This grey area forms a subject of permanent controversy in practice as well as in theory. (14)

    1493 These are real difficulties, but they should not be allowed to become out of proportion. First, it seems evident that the attempted or unsuccessful act also falls under the scope of this prohibition. Secondly, a treaty should not be interpreted so as to conflict with a peremptory norm of general international law, (15) and therefore it should not be interpreted in this way.

    1494 The fact is that the first sentence of Article 37 is devoted essentially to combat -- as is evident from the context and the list of examples -- and it is aimed at regulating one of the problems of combat: acts of killing, injuring or capturing with resort to perfidy. On the other hand, this article has the advantage of giving a definition of perfidy with a general scope in the second sentence. Although the problems which were pointed out above cannot always be resolved by resorting to Article 37 , it should be possible to resolve them in the context of the Protocol as a whole, with the aid of the general principles of law and without at all giving the impression that there is such a concept as permitted perfidy. Moreover, Article 38 ' (Recognized emblems) ' and Article 39 ' (Emblems of nationality) ' make a by no means insignificant contribution to reinforcing Article 37 , particularly by the absolute quality of the prohibitions formulated in them. Finally, there is more to an international treaty than the literal reading of all the words in the document may suggest; it represents one step forward in the ongoing evolution in relations between States.

    1495 If any doubt should remain regarding the basic meaning, Article 1 ' (General principles and scope of application), ' paragraph 2, should suffice to remove these doubts. This emphasizes particularly that, in cases not covered by the Protocol or by other international agreements, combatants remain under the protection of the principles of humanitarian law derived from established custom, from the principles of humanity and the dictates of public conscience. However, in the sense of the present article, and only in this sense, it is true that there are breaches of faith which do not specifically fall under the scope of the prohibition laid down here or under Article 85 ' (Repression of breaches of this protocol), ' paragraph 3 (f). Nevertheless, this is once more without prejudice to general international law and the other rules of the Protocol.

    [p.434] ' Second sentence -- The definition of perfidy '

    1496 The first sentence of Article 37 prohibits the killing, injuring or capturing of an adversary by resort to perfidy. This makes it appropriate to have a definition of perfidy, which forms the object of the second sentence.

    1497 The essential concept of perfidy is not difficult to grasp: a broken word, dishonesty, unfaithful breaking of promises, deliberate deception, covert threats -- these are only a few aspects of this spectre to which the fundamental rule of laws ' pacta sunt servanda ' or ' fides etiam hosti servanda ' is opposed. On the other hand, it is more difficult to define this concept precisely in a particular social order. In every society, law has had a social, religious, moral or ethical basis, at least at the beginning. (16)

    1498 However, these have been described as:

    "three powerful spirits, which from time to time have moved over the face of the waters, and given a predominant impulse to the moral sentiments and energies of mankind. These are the spirits of liberty, of religion and of honour". (17)

    This sense of honour, which was nourished during the Middle Ages of Europe by chivalry, particularly in tournaments and in jousting, has contributed to the establishment of the rules which finally became assimilated into the customs and practices of war, in accordance with the principle that the law of the powerful tends to become common law. (18) There were rules for attack and rules for defence, and the knight always trusted the word of another knight, even if he were an enemy. Perfidy was considered a dishonour which could not be redeemed by any act, no matter how heroic. (19)

    1499 Perfidy is injurious to the social order which it betrays, regardless of the values on which this social order is founded. However, as our age is characterized by a great diversity of classification of values, it was natural that the first proposals concerned with defining the concept of perfidy were based on the concept of trust, (20) which forms the basis of the security of international relations. This concept seemed to be too abstract for some authorities, and it was proposed that perfidy be defined in relation to a situation protected by international law (21) However, the feeling persisted that the problem went beyond the rule of law, while at the same time encompasssing it. Finally, Canada, Ireland and the United Kingdom submitted an amendment that obtained a majority of votes, (22) and [p.435] overcame the resistance of those who would have preferred to have abstained from any definition as they considered the attempt to be too difficult. (23)

    1500 The definition is based on three elements: inviting the confidence of an adversary, the intent to betray that confidence (subjective element) and to betray it on a specific point, the existence of the protection afforded by international law applicable in armed conflict (objective element). (24) In its turn, Article 2 ' (Definitions), ' sub-paragraph (b), specifies that this last concept refers to "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 which are applicable to armed conflict". This is a relatively wide interpretation, and consequently the definition of perfidy extends beyond the prohibition formulated in the first sentence. For example, it encompasses war at sea, even though this subject is not dealt with in the Protocol. (25) As regards the characteristic material element of this wrongful act, this consists of the intentional and conscious deception of the adversary regarding a matter on which the protection provided for by the applicable law explicitly depends. Thus the formula implies a totally clear and consistent interpretation of the relevant legal rule and the act which is the condition which is the condition of its application. (26) The central element of the definition of perfidy (27) is the deliberate claim to legal protection for hostile purposes. The enemy attacks under cover of the protection accorded by humanitarian law of which he has usurped the signs. It is by inviting the other's confidence with the intention or the will to betray it that renders perfidy a particularly serious illegality, as compared with other violations of international law, and which constitutes for its perpetrator an aggravating circumstance. In doing so, he destroys the faith that the combatants [p.436] are entitled to have in the rules of armed conflict, shows a lack of the minimum respect which even enemies should have for one another, and damages the dignity of those who bear arms. As a result of these consequences, perfidy destroys the necessary basis for reestablishing peace.

    ' Third sentence -- The list of examples '

    1501 The idea of clarifying the rule of the prohibition of perfidy in the form of a list of concrete examples arose at the beginning of the discussions for reasons of both a practical and technical nature. (28) from a practical point of view, it is obvious that the enumeration of concrete situations facilitates the task of those who are responsible for giving instructions to the combatants. From a technical point of view, it is a not unimportant auxiliary element for realising a concept which is difficult to define in concrete terms.

    1502 As this is a list of examples, it obviously does not have an exhaustive character. (29) Moreover, each example should be understood in the context of the paragraph taken as a whole, and not in isolation. To strike an adversary after allaying his suspicion by feigning an incapacitation by wounds or sickness is a perfidious act in the sense of Article 37 . However, feigning an incapacitation by imaginary wounds with the intent of bringing about an interruption in an adversary's attack, though it certainly constitutes perfidious conduct in the sense of the second sentence, does not so obviously fall under the scope of the prohibition of the first sentence. (30) feigning an incapacitation by a purely imaginary wound, with the sole intent of justifying the desire to surrender, a desire which may be quite sincere for that matter, is neither an act of perfidy nor a prohibited ruse. It is simply an expedient, used to reveal the wish to withdraw from combat definitively.

    1503 With regard to the list itself, the Conference amended the proposals submitted by the ICRC, (31) particularly as a matter of drafting, though there were some [p.437] substantive modifications. At times, opinion was divided within the Working Group with regard to the choices which some considered to be debatable. At any rate, it was finally agreed that Article 37 should be restricted to a short list of clear examples, leaving aside borderline cases. (32) The discussion was mainly concerned with sub-paragraph (c), which relates to the feigning of a civilian or noncombatant status, and as a result the problem of guerrillas. However, to begin with, it would be appropriate to examine sub-paragraphs (a) and (b).

    ' Sub-paragraph (a) ' -- "the feigning of an intent to negotiate under a flag of truce or of a surrender"

    1504 According to Article 85 ' (Repression of breaches of this protocol), ' paragraph 3 (f), the perfidious use of a flag of truce is a grave breach if it causes the death or serious injury to body or health of an adversary; such perfidious use of the flag of truce was already prohibited in Article 23(f) of the Hague Regulations. In general, combatants can never be too scrupulous about respecting the conditions pertaining to their non-belligerent relations. (33) This rule also covers the opening of negotiations, their pursuit and possibly their repudiation, as well as surrender, the conditions of which are defined in Article 41 ' (Safeguard of an enemy hors de combat) ' (34)

    ' Sub-paragraph (b) ' -- "the feigning of an incapacitation by wounds or sickness"

    1505 It is appropriate to refer to the First and Second Conventions, which apply to the battlefield, and impose the obligation of respecting and protecting the wounded, sick and shipwrecked in all circumstances (Article 12 ). In addition, reference should be made to Article 41 of the Protocol ' (Safeguard of an enemy hors de combat), ' which prohibits any attack on any person who is recognized, or who in the circumstances should be recognized, to be ' hors de combat. ' Paragraph 2 of this article defines the conditions which render a person ' hors de combat. ' If a person who is known to be ' hors de combat ' is attacked wilfully, and this results in his death or causes serious injury to his body or his health, this constitutes a grave breach under Article 85 ' (Repression of breaches of this Protocol), ' paragraph 3(e). The counterpart to these protections, the feigning of being ' hors de combat, ' therefore constitutes an act of perfidy. Under the same conditions, the perfidious use of the distinctive emblem of the red cross or the red crescent or other recognized protective signs, in violation of the article with which we are concerned [p.438] here, is also a grave breach under Article 85 ' (Repression of breaches of this Protocol), ' paragraph 3 (f). This perfidious use always involves the abuse of the adversary's confidence. Thus, for example, feigning death simply to save one,s life would not be an act of perfidy, while feigning death to kill an enemy once his back is turned, would constitute an act of perfidy. (35)

    ' Sub-paragraph (c) ' -- "the feigning of civilian, non-combatant status"

    1506 The inclusion of this example brought Committee III to the heart of the problem. (36) To reject it would have meant compromising the fundamental distinction between civilians and combatants, which forms the basis for the law of armed conflict. (37) To accept it without restrictions would have meant destroying the compromise which had been achieved with regard to Article 44 ' (Combatants land prisoners of war), ' which in some circumstances allows a guerrilla combatant who cannot distinguish himself from the civilian population to retain his status as a combatant, by the sole fact of his carrying his arms openly (Article 44 -- ' Combatants and prisoners of war, ' paragraph 3, second sentence). The fact that under the terms of the definition of perfidy it is not sufficient to prove the feigning or the disguise of the combatant in civilian dress, but that it is also necessary to prove the intention to mislead in the sense given in the same definition, has not sufficed to allay the suspicion of those who advocated the cause of guerrillas. For the combatant of Article 44 ' (Combatants and prisoners of war), ' the fact of being or having been in civilian dress at one time or another will, according to the latter, always mean that they fall under the scope of Article 37 , i.e., the accusation of perfidy, if sub-paragraph (c) is not qualified by a safeguard clause. It was finally decided (38) that this clause would be included, not in Article 37 , but in Article 44 ' (Combatants and prisoners of war), ' paragraph 3, where it can be found in the following form: "Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37 , paragraph 1(c)." The example has therefore survived, but with the reservation stipulated in Article 44 ' (Combatants and prisoners of war). '

    1507 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 background, but he may not feign a civilian status and hide amongst a crowd. This is the crux of the rule. There are a number of special situations, as described in Article 44 ' (Combatants and prisoners of war), ' paragraph 3, second sentence, but there is no double standard. (39)

    [p.439] ' Sub-paragraph (d) ' "the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict"

    1508 This example is not contestable, but it brings into play three different factors.

    1509 With regard to the United Nations, it is appropriate to state that the wrongful use of its signs, emblems or uniforms can constitute an act of perfidy in the sense of Article 37 (41) only in cases where the personnel of the United Nations have the status of neutral or protected persons, (40) and not in situations where members of United Nations armed forces intervene in a conflict as combatants, even when this is for peacekeeping purposes. However, this type of abuse remains unlawful.

    1510 The term "neutral and/or other States not Parties to the conflict" can also be found in particular in Articles 2 ' (Definitions), ' 19 ' (Neutral and other States not Parties to the conflict) ' and 31 ' (Neutral or other States not parties to the conflict). ' The Conventions used the term "neutral States" to cover all States not Parties to the conflict. In the formula adopted by the Protocol, the term "neutral States" only covers States with a neutral status; hence the need to add the term "other States not Parties to the conflict". (42) As neutral countries were already mentioned in the Conventions, particularly in Article 27 of the First Convention, it was considered useful to retain this concept, which corresponds to the concept of neutrality in the traditional sense, i.e., to the law of neutrality. Obviously the term "other States not Parties to the conflict" refers to all States that do not participate in the conflict.

    1511 Finally, the reference to neutral signs or emblems is not considered to affect the law governing the use of neutral flags in war at sea (43) any more than Article 37 as a whole affects the existing, generally recognized rules of international law applicable to the use of flags in the conduct of armed conflict at sea. (44) However, with this reservation, it is understood that the definition of perfidy given in Article 37 , like the prohibition formulated in the first sentence, applies just as much to war at sea or war in the air as to war on land. The prohibition of perfidy in war is, by its very nature, indivisible.

    Paragraph 2 -- Ruses of war

    1512 The law of armed conflict requires that military operations be conducted within the confines of the rules that are imposed, in good faith, without resort to perfidy or to perfidious attacks, as we have seen above. Within these limitations, the art [p.440] of warfare is a matter, not only of force and of courage, but also of judgment and perspicacity. (45) In addition, it is no stranger to cunning, skill, ingenuity, stratagems and artifices, in other words, to ruses of war, or the use of deception. There are numerous examples of these throughout history. (46) However, as imagination is too often lacking in those who invoke the right to use such practices, the ruse of war has many times served as a pretext for pure and simple violations of the rules in force. Obviously this should be condemned extremely severely. The purpose of this paragraph is to draw the borderline between the ruse which is prohibited because it is perfidious or implies a violation of the law of armed conflict, and the ruse which is permitted. (47)

    ' First sentence -- The non-prohibition of ruses of war '

    1513 Article 24 of the Hague Regulations explicitly states that "ruses of war and the employment of measures necessary for obtaining information about the enemy and the country are considered permissible". This principle, which was embodied in the Hague Regulations, was not contested by the Diplomatic Conference, although the wording of Article 24 , which confuses ruses of war and gathering of information in a single provision, leaves a lot to be desired. It is not surprising therefore that agreement was easily reached (48) on the usefulness of reaffirming, in the Protocol, the admissibility of this method of combat, (49) which is rooted in custom without confusing it with the gathering of information which is actually a separate question.

    1514 In fact, the real problem does not consist of knowing whether ruses of war are permitted, but of determining which are the ruses of war that are permissible. The ruse is very often the only course open to a weak combatant, and the law of armed conflict, if it is to be respected, should ensure that the combatants have equal chances. However, just as the use of force requires regulation -- which is the object of the Protocol as a whole -- the recourse to a ruse should meet certain conditions which do not jeopardize these rules.

    [p.441] ' Second sentence -- The definition of ruses of war '

    1515 A ruse of war consists either of inducing an adversary to make a mistake by deliberately deceiving him, or of inducing him to commit an imprudent act, though without necessarily deceiving him to this end. Such operations are perfectly lawful on the express condition that they do not infringe any applicable rule of either the Protocol as a whole, or, a fortiori, the rule relating to the prohibition on perfidy. Any ruse based on the violation of a rule of the Protocol by the wrongful use of emblems of a particular nationality, for example, in violation of Article 39 ' (Emblems of nationality) ' is a prohibited ruse, rather than an act of perfidy, in the sense of the Protocol at any rate. (50) If this form of deception in addition invites the confidence of the adversary with regard to the protection provided for by the law of armed conflict, for example, by using the uniforms of neutral countries, it does constitute an act of perfidy. Thus a distinction should be made between a ruse, a prohibited ruse, and an act of perfidy. A ruse can never legitimize an act which is not lawful. In most cases it consists of a form of feigning, as shown in the list of examples given below, but it should never veil a violation. If it consists of an outright violation, rather than a veiled one, for example, covering an attack by a shield of prisoners of war, it is prohibited for this reason alone, without there being any visual deception.

    1516 A ruse can resort to acoustic means (such as simulating the noise of an advancing column), optical means (creation of fictitious positions), the use of information (circulating misleading messages), operational means (simulated attacks). It can induce the adversary to make an imprudent and reckless move without resorting to any simulation, for example, by submitting an isolated post to pressure in order to encourage an appeal for reinforcements which will then be attacked as they are advancing in conditions disadvantageous to them. Within the limits assigned to it, the ruse is not only in no way unlawful, but is not immoral either. In many cases it will permit a successful operation with less loss of life than through the simple use of force.

    1517 However, mention should be made of a particular category of weapons. Modern warfare makes a great deal of use of delayed-action weapons, such as mines and explosive or non-explosive booby-traps which are activated by the target itself, in other words, by the person or vehicle which makes contact with the device. The purpose of these weapons is to obstruct the enemy's mobility. If their whereabouts is not indicated, or if they are camouflaged, these devices may actually assume a perfidious character in a wide sense, or even in a legal sense. (51) The problem was examined at length by the Ad Hoc Committee, and the Working Group finally formulated a number of proposals on this subject. (52) These proposals were taken up again and further elaborated, particularly in Articles 2 and 6 of Protocol II, annexed to the Convention of 10 October 1980 on the [p.442] prohibitions or restrictions on the use of certain conventional weapons (see supra, p. 405): "Protocol on prohibitions or restrictions on the use of mines, booby-traps and other devices".

    1518 By "booby-trap" Article 2 means:

    "any device or material which is designed, constructed or adapted to kill or injure and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act".

    Article 6 , entitled "Prohibitions on the use of certain booby-traps" reads as follows:

    "1. Without prejudice to the rules of international law applicable in armed conflict relating to treachery and perfidy, it is prohibited in all circumstances to use:
    a) any booby-traps in the form of an apparently harmless portable object which is specifically designed and constructed to contain explosive material and to detonate when it is disturbed or approached, or
    b) booby-traps which are in any way attached to or associated with:
    i) internationally recognized protective emblems, signs or signals;
    ii) sick, wounded or dead persons;
    iii) burial or cremation sites or graves;
    iv) medical facilities, medical equipment, medical supplies or medical transportation;
    v) children's toys or other portable objects or products specially designed for the feeding, health, hygiene, clothing or education of children;
    vi) food or drink;
    vii) kitchen utensils or appliances except in military establishments, military locations or military supply depots;
    viii) objects clearly of a religious nature;
    ix) historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples;
    x) animals or their carcasses.

    2. It is prohibited in all circumstances to use any booby-trap which is designed to cause superfluous injury or unnecessary suffering."

    1519 This Convention is undoubtedly independent of the Protocol which, as stated above, does not contain any prohibitions on specific weapons. However, the Protocol denies the Parties to the conflict an unlimited right with regard to their choice of the methods or means of warfare. It prohibits any weapons, as well as methods of warfare of a nature to cause superfluous injury or unnecessary suffering (Article 35 -- ' Basic rules '). It prohibits killing or injuring by resort to perfidy (paragraph 1 of the article under consideration here), and it protects the civilian population (Article 51 -- ' Protection of the civilian population '), the wounded, sick and shipwrecked (Article 10 -- ' Protection and care '), medical and religious personnel (Article 15 -- ' Protection of civilian medical and religious personnel '), and objects indispensable to the survival of the civilian population (Article 54 -- ' Protection of objects indispensable to the survival of the civilian [p.443] population '). To associate booby-traps at any category of persons or objects protected by the Protocol would be to infringe this paragraph, by inviting the adversary's confidence as regards the protection provided for in the Protocol, with the intention of killing or wounding him. It is therefore prohibited and even perfidious, whether the Party to the conflict is a Party to the Convention on conventional weapons, or not. Moreover, one could consider that this Convention, which has taken up virtually all the proposals submitted during the Diplomatic Conference, (53) provides for an interpretation of prohibited ruses within the meaning of this paragraph, in the field of delayed-action weapons.

    ' Third sentence -- The list of examples '

    1520 The list of examples of ruses of war corresponds to the proposals presented by the ICRC in Article 35 of its draft, and did not provoke any debate. It was impossible to enumerate in the Protocol all the operations described under this heading in military manuals, and it was necessary to restrict this to an indication of certain categories. These were given only by way of example and by no means form a comprehensive list.

    1521 Some military manuals actually give a fairly extensive list of procedures which are commonly described as ruses of war: setting up surprise attacks, ambushes, retreats, simulated operations on land, in the air or at sea; simulating quiet and inactivity; camouflaging troops, weapons, depots or firing positions in the natural or artificial environment; taking advantage of the night or of favourable weather conditions (fog, etc.); constructing installations that will not be used; putting up dummy aerodromes or placing in position dummy canon and dummy armoured vehicles, and laying dummy mines; use of small units to simulate large forces and equipping them with a strong avant-garde or numerous advanced bases; transmitting misleading messages by radio or in the press; knowingly permitting the enemy to intercept false documents, plans of operations, despatches or news items which actually bear no relation to reality; using the enemy wavelengths, passwords (54) and wireless codes to transmit false instructions; pretending to communicate with reinforcements which do not exist; organizing simulated parachute drops and supply operations; moving land marks and route markers or altering road signs; removing the signs indicating rank, unit, nationality or special function from uniforms; giving members of one military unit the signs from other units to make the enemy believe that it is faced with a more important force; using signals for the sole purpose of deceiving an adversary; resorting to psychological warfare methods by inciting the enemy soldiers to rebel, to mutiny or desert, [p.444] possibly taking weapons and transportation; inciting the enemy population to revolt (55) against its government etc. (56)

    1522 Obviously this list is not and does not purport to be comprehensive. In the first place, it does not take into account the problems raised by certain types of weapons, but this point was examined above. (57) Moreover, the imagination of man is too inventive for one to think that everything it could come up with can be covered in a list. Finally, the situations in combat and their evolution are unforeseeable and will always give rise to new ideas. It does not take into account the conditions of war at sea where, for example, use is still made of dummy ships or warships camouflaged by artificial superstructures, but the legality of certain type of camouflage is controversial.

    Conclusion

    1523 The prohibition of perfidy is a basic rule of the conduct of combat. According to the Protocol, perfidy consists of the deliberate use of international law protection in the sense of the law of armed conflict (for example the use of the red cross emblem, a flag of truce, the simulation of a protected situation) to deceive the adversary. Thus it does not consist only of the infringement, for the same purpose, of a rule prescribing some form of conduct (for example, prohibition on the use of enemy uniform to assist military operations).

    1524 The rule prohibits acts performed in combat: killing, injuring and capturing by resort to perfidy. It covers attempted and unsuccessful acts. If an act of perfidy results in the death, or serious injury to body or health, it constitutes a war crime in the sense of Article 85 ' (Repression of breaches of this Protocol '), paragraph 3(f).

    1525 A ruse of war is not prohibited as long as there is no intention to deceive the adversary by inviting his confidence that the rules will be duly respected and that they will afford protection, provided that the adversary is entitled to have such confidence, and provided that the ruse does not infringe any rule of obligatory conduct.



    ' J. de P. '


    NOTES

    (1) [(1) p.430] On the subject of this distinction, see "The High Command Case", 12 ' Law Reports, ' 1949, p. 69;

    (2) [(2) p.430] Although the principle is not contested, opinions vary on the fundamental reason for its existence. Some authors consider that it is based on the necessity of forbidding anything which makes the attainment of peace more difficult; others simply state that although morality is not a recognized source of law, it nevertheless remains a condition of its existence. See also F. Lieber, op. cit., Art. 30;

    (3) [(3) p.431] This is also the case with regard to numerous provisions of the Protocol as a whole. The various rules which prohibit protecting military targets from attack by using protected persons or objects for this purpose provide a good illustration. These prohibitions are explicitly concerned with medical units (Art. 12, para. 4), medical aircraft (Art. 28, para. 1), the civilian population (Art. 51, para. 7), and cultural objects (Art. 53, sub-para. (b)). Article 58, sub-paras. (a) and (b) is no doubt derived from a humanitarian principle, but it is also derived from the principle of honour when it urges the Parties to the conflict to remove civilian elements from military targets "to the maximum extent feasible". The prohibition on the use of medical aircraft which have been granted protection in order to obtain a military advantage or intelligence data (Art. 28, paras. 1 and 2) is another example. The requirement that protected personnel and installations are used only for tasks for which this protection has been authorized reflects a similar concern. This is true for medical personnel (Art. 8, sub-paras. (c) and (k)), and for civil defence (Art. 67, para. 1(b)), and for medical transports (Art. 8, sub-para. (g)). The prohibition on the perfidious use of protective signs is explicitly confirmed in Art. 85 , para. 3(f). The rule is also the same for signals (Art. 18, paras. 6 and 8). All these cases are concerned with avoiding the wrongful application for purposes which would not be honest as they would be different from those for which the protection was authorized. The same is true of relief actions (Art. 70, para. 3(c));

    (4) [(4) p.431] O.R. XIV, p. 245, CDDH/III/SR.27, and pp. 261 and 263, CDDH/III/SR.28;

    (5) [(5) p.431] This point was not contested; for the statement to this effect, see O.R. V, p. 133, CDDH/ SR.13, para. 33; p. 180, CDDH/SR.17, para. 40; O.R. XIV, p.264, CDDH/SR.28, para. 22; O.R. XV, p. 271, CDDH/215/Rev.1, para. 40; see also ' CE 1971, Report ', pp. 103-104, para. 522;

    (6) [(6) p.431] According to M. Greenspan, op. cit., p. 317, this rule prohibits assassination, recruitment of hired killers, placing a price on the head of an adversary, or the offer of a reward for his capture "dead or alive"; proscription and outlawry of an enemy, treacherous request of quarter, and the treacherous simulation of death, wound or sickness, or pretended surrender, for the purpose of putting the enemy off his guard and then attacking him. It does not seem to prohibit attacking enemy combatants individually, whether this is in the area of combat, in occupied territory or elsewhere, even though in principle the rule which prohibits killing except in combat is still applicable. However, methods of guerrilla warfare do not seem to conform with this (cf. ' US Field Manual 27-10, ' para. 31, and D. Fleck, "Ruses of War and Prohibition of Perfidy", 13 RDPMDG, No. 2, 1974, p. 278);

    (7) [(7) p.431] This remark had already been made at the Brussels Conference in 1874 by a delegate who pointed out that the term "trahison" was not applicable to an enemy. Cf. ' Reaffirmation, ' p. 80;

    (8) [(8) p.431] At the Conference itself a representative affirmed that the protection of the civilian population and the prohibition of perfidy were the principal objectives of Protocol I (O.R. XIV, p. 323, CDDH/III/SR.33, para. 33);

    (9) [(9) p.432] ' CE 1972, Report ', vol. I, p. 108, para. 2.415;

    (10) [(10) p.432] ' CE 1971 ', Report, p. 103, para. 521; ' CE 1972, Report ', vol. II, p. 52, CE/COM III/C 9 and vol. I, p. 130; O.R. XIV, p. 268, CDDH/III/SR.28, para. 43;

    (11) [(11) p.432] This conclusion, as stated above, is not diluted by the wording of the title of the article, which should be read in context;

    (12) [(12) p.432] "It is especially forbidden to kill or wound treacherously individuals belonging to the hostile nation or army";

    (13) [(13) p.432] The fact that the intention was restricted in this way obviously does not mean that one can conclude from this by a contrario reasoning that acts of perfidy are authorized in other cases;

    (14) [(14) p.433] Cf. M. Bothe, K. Ipsen, K.J. Partsch, "Die Genfer Konferenz über humanitäres Völkerrecht, Verlauf und Ergebnisse", 38 ' ZaöRV ', No. 1-2, 1978, pp. 25-26;

    (15) [(15) p.433] Vienna Convention on the Law of Treaties, 1969, Art. 53;

    (16) [(16) p.434] In Islam, to take this example, the obligation to respect all the clauses of a treaty, both in the letter and the spirit, was a strict and actually a sacred duty. Cf. M.A. Draz, "Le droit international public et l'Islam", RICR, March 1952, p. 207;

    (17) [(17) p.434] G.I.A.D. Draper, "The Interaction of Christianity and Chivalry in the Historical Development of the Law of War", IRRC, January 1965, p. 7, quoting Hallam;

    (18) [(18) p.434] Ibid., p. 17. On the other hand, the alliance of the military order of chivalry and the Christian religion in the Crusades had very serious consequences (see ibid., pp. 10-16);

    (19) [(19) p.434] Ibid., p. 20;

    (20) [(20) p.434] ' CE 1971, Report ', p. 105;

    (21) [(21) p.434] ' CE 1972, Report ', Vol. II, pp. 63-64 (CE/COM III/C 70);

    (22) [(22) p.434] O.R. III, pp. 164, CDDH/III/233;

    (23) [(23) p.435] Ibid., pp. 163, CDDH/III/223;

    (24) [(24) p.435] "It is necessary that there was treacherous intent and that the adversary's confidence was betrayed surreptitiously" (translated by the ICRC), Ph. Bretton, "Le problème des "méthodes et moyens de guerre et de combat" dans les Protocoles additionnels aux Conventions de Genève du 12 août 1949", RGDIP, January-March 1978, p. 1, at p. 11. However, it should be noted that the use of enemy uniforms, which is prohibited in Art. 39, was not retained in the list of typical examples of perfidy quoted in the article under consideration here (cf. O.R. III, p. 163, CDDH/III/223). Despite the provisions of Art. 39, the Conference considered that it could not accord to the protection granted to the signs of nationality of the belligerents the same status as the protection granted by international law to persons specifically entitled to such protection (the wounded and sick, parlementaires etc.);

    (25) [(25) p.435] Nevertheless, this concerns only the general prohibition of perfidy and the concept of perfidy. The recognized rules relating to war at sea remain as they are: cf. Art. 39, para. 3 (see also infra, sub-para. (d), p. 439);

    (26) [(26) p.435] Art. 84 invites the High Contracting Parties to communicate to each other the laws and regulations adopted in order to ensure the implementation of the Protocol. Compliance with this obligation, which could, in particular, involve the exchange of military manuals, would certainly contribute to clarifying these situations;

    (27) [(27) p.435] It can be argued whether this"juridical" definition completely covers the concept of perfidy on the battlefield, in particular with regard to wars which go on for a long time, when the adversaries have come to know each other. The juridical element remains dominant, but various other factors such as morals, the concept of honour (cf. D. Fleck, "Ruses of war...", op. cit., p. 272), and the knowledge that each one has of the ideas of the adversary on these different points, all equally contribute to establishing a certain level of confidence resulting in the correct application of the legal rules. However, these elements could be included in the concept of good faith;

    (28) [(28) p.436] ' CE 1971, Report ', p. 105, CE/COM III/C 1;

    (29) [(29) p.436] The error made with regard to Art. 23 of the Hague Regulations should therefore not be repeated. Omitting the adverb "especially", which precedes the list of prohibitions enumerated under letters (a) to (h), it was concluded rather simply by an a contrario reasoning that the methods of combat which were not included in this list were authorized with the sole exception of the Martens clause, or an incontestable rule of customary law to the contrary. This reasoning was unsound (cf. D. Fleck, "Ruses of war...", op. cit., p. 280);

    (30) [(30) p.436] In this respect, see the considerations put forward above, p. 432. The ICRC draft (Art. 35) qualified as perfidious the acts given by way of example, "when carried out in order to commit or resume hostilities", a phrase which some would have wished to supplement with the word "immediately" : "in order to commit or resume hostilities immediately";

    (31) [(31) p.436] The draft presented by the ICRC listed in Art. 35: "(a) the feigning of a situation of distress, notably through the misuse of an internationally recognized protective sign; (b) the feigning of a cease-fire, of a humanitarian negotiation or of a surrender; (c) the disguising of combatants in civilian clothing." The other proposals submitted by the Rapporteur to the Working Group of Committee III include: abusing the provisions of an international convention to gain an advantage; the use of the distinctive signs of the enemy or enemy uniform during combat (CDDH/III/GT/54) (in this respect, see the ICRC proposals at the second session of the Conference of Government Experts, ' CE 1972, Report ', vol. II, p. 5, Art. 31, as well as "the creation, prior to an attack, of an impression with the enemy of being a non-combatant" (O.R. III, p. 162, CDDH/III/ 80));

    (32) [(32) p.437] O.R. XV, p. 382, CDDH/236/Rev. 1, para. 17, and p. 426, CDDH/III/338;

    (33) [(33) p.437] See in particular the Hague Regulations, Art. 35; see also M. Greenspan, op. cit., p. 320;

    (34) [(34) p.437] A question which is sometimes raised is whether prisoners of war who attack their guards while they are being detained are committing an act of perfidy; this is not very likely, as prisoners of war are not bound by any duty of allegiance to the Power detaining them (Third Convention, Art. 87, para. 2), and the fact that the captivity is based only on a relationship of force, but such acts can compromise the application of the Third Convention;

    (35) [(35) p.438] O.R. XV, p. 382, CDDH/236/Rev.1, para. 16, and p. 426, CDDH/III/338;

    (36) [(36) p.438] See in particular O.R. XIV, p. 264, CDDH/III/SR.28, para. 23;

    (37) [(37) p.438] With regard to this example, see the statement by a delegation at the time of the adoption of Art. 37, at a plenary meeting; O.R. VI, p. 115, CDDH/SR.39;

    (38) [(38) p.438] O.R. XV, p. 382, CDDH/236/Rev.1, para. 18;

    (39) [(39) p.438] For proof that Art. 44 in no way invites terrorism, see M. Bothe, K. Ipsen, K.J. Partsch, op. cit., p. 35;

    (40) [(40) p.439] In principle this is always the case when the United Nations plays the role of an observer; cf., for example, the agreement on the withdrawal of Israeli and Syrian forces of 31 May 1974, and the Protocol with regard to the United Nations force responsible for observing this withdrawal, UN, 2 ' Monthly Chronicle, ' No. 6, June 1974, pp. 26-27;

    (41) [(41) p.439] O.R. XV, p. 382, CDDH/236/Rev.1, para. 18;

    (42) [(42) p.439] On this subject, see commentary Art. 2, sub-para. (c), supra, p. 61;

    (43) [(43) p.439] O.R. XV, p. 382, CDDH/236/Rev.1, para. 18;

    (44) [(44) p.439] Art. 39, para. 3;

    (45) [(45) p.440] D. Fleck,"Ruses of War...", op. cit., p. 270, quoting Clausewitz;

    (46) [(46) p.440] Ibid., pp. 273-274;

    (47) [(47) p.440] Is the ruse of war as important in our time as it was in the past when armies were in combat at a short distance from each other? Such ruses, which could formerly be decisive for the result of a battle, could today only be of marginal value at the most. However, this combat technique is not absent from the modern battlefield. "Instruction in ruses of war might well be rudimentary in highly technical armies whereas it was fundamental in "amateur" armies, whose tactics were based largely on surprise, ambushes, trickery, switching of uniforms, incitement of the enemy to rebellion, and so forth. A long list, which those disposing of multiple facilities might regard as fairly complete, would appear by no means comprehensive to others who had to fight from a position of numerical or technical inferiority"(O.R. XIV, p. 263, CDDH/III/SR.28, para. 20). However, it has been said that, even in highly technical armies, operations of deception such as the deflection by electronic means of jet bombers to targets in their own countries are far from unimportant;

    (48) [(48) p.440] However, for these reservations, see O.R. XIV, p. 260, CDDH/III/SR.28, para. 6;

    (49) [(49) p.440] While making these reservations, which will be examined below, Lieber states that "deception in war is admitted as a just and necessary means of hostility" and is "consistent with honorable warfare" (F. Lieber, op. cit., Art. 101.);

    (50) [(50) p.441] Cf. K. Ipsen, who seems to regret the weakness of this definition in "Perfidy", in Bernhardt (ed.), op. cit., Instalment 4, 1982, p. 131;

    (51) [(51) p.441] See O.R. XVI, p. 284, CDDH/IV/SR.28, para. 6; ICRC, ' Weapons that may cause..., ' op. cit., p. 50, para. 160; ' Lucerne Report, ' pp. 68-71, paras. 242 and 247-259;

    (52) [(52) p.441] See O.R. XVI, pp. 590-591, 593-594, 598-599, CDDH/IV/226;

    (53) [(53) p.443] See supra, note 52;

    (54) [(54) p.443] This point is sometimes contested; see M. Greenspan, op. cit., p. 319, note 26, and D. Fleck, "Ruses of War...", op. cit., p. 274, quoting Grotius;

    (55) [(55) p.444] But not by inviting the enemy population to listen in by announcing information about prisoners of war in such a way that it is actually a pretext for the use of a psychological weapon (see M. Greenspan, op. cit., p. 324);

    (56) [(56) p.444] Cf. ' US Field Manual 27-10, ' para. 51; Swiss Army, ' Manuel des lois et coutumes de la guerre, ' 1963, chiffre 36; M. Greenspan, op. cit., pp. 319-320;

    (57) [(57) p.444] See supra, pp. 441-442;