Hague IV, 1907

1. Perfidy and Uniforms Hague IV, 1907 • Art. 23(b): It is especially forbidden to kill or wound treacherously individuals belonging to the hostile nation or army; • Art. 23(f): It is especially forbidden to make improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention; • Art 24: Ruses of war and the employment of measures necessary for obtaining information about the enemy and the country are considered permissible. • Art 29: soldiers not wearing a disguise who have penetrated into the zone of operations of the hostile army, for the purpose of obtaining information, are not considered spies.

2. Perfidy and Uniforms FM 27-10, Para 54 • In practice, it has been authorized to make use of national flags, insignia, and uniforms as a ruse. The foregoing rule (HR, art. 23, par. (f) ) does not prohibit such employment, but does prohibit their improper use. It is certainly forbidden to employ them during combat, but their use at other times is not forbidden.

3. Perfidy and Uniforms AP I, Art 37Perfidy • 1. 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 is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.

4. Perfidy and Uniforms AP I, Art 37Commentary Para 1500 – The definition [of perfidy] is based on three elements: 1. Acts inviting confidence of adversary 2. Intent to betray confidence (Subjective element) 3. Actual betrayal

5. Perfidy and Uniforms AP I, Art 37Commentary • 1492 – [T]he 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 with will be to their disadvantage. . . . 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.”

6. Perfidy and Uniforms AP I, Art 37Perfidy • The following acts are examples of perfidy: • (a) the feigning of an intent to negotiate under a flag of truce or of a surrender; • (b) the feigning of an incapacitation by wounds or sickness; • (c) the feigning of civilian, non-combatant status; and • (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.

7. Perfidy and Uniforms Examples of Perfidy

8. Perfidy and Uniforms Examples of Perfidy

9. Colombia Hostage Rescue Permissible Perfidy?

10. Ruses AP I, Art 37Ruses • 2. 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 that law. The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation.

11. Perfidy and Uniforms Where do uniforms fit in this discussion?

12. Perfidy and Uniforms AP I, Art. 39 • 1. It is prohibited to make use in an armed conflict of the flags or military emblems, insignia or uniforms of neutral or other States not Parties to the conflict. • 2. It is prohibited to make use of the flags or military emblems, insignia or uniforms of adverse Parties while engaging in attacks or in order to shield, favour, protect or impede military operations. • 3. Nothing in this Article or in Article 37, paragraph 1 (d), shall affect the existing generally recognized rules of international law applicable to espionage or to the use of flags in the conduct of armed conflict at sea. • NOTE: US OBJECTS TO THIS RULE!

13. What is the US View?

14. Perfidy and Uniforms FM 27-10, Para 74Necessity of Uniform • Members of the armed forces of a party to the conflict and members of militias or volunteer corps forming part of such armed forces lose their right to be treated as prisoners of war whenever they deliberately conceal their status in order to pass behind the military lines of the enemy for the purpose of gathering military information or for the purpose of waging war by destruction of life or property. Putting on civilian clothes or the uniform of the enemy are examples of concealment of the status of a member of the armed forces.

15. Perfidy and Uniforms Where do uniforms fit in this? • Three possible outcomes (based on the clothing choices of combatants): • 1) Perfidy • 2) Forfeit POW Status / Protections • Can be tried as a spy or saboteur under domestic law of the capturing state • 3) Retain POW Status

16. Perfidy and Uniforms Where do uniforms fit in this? • 4 Questions to ask: • What? • Enemy uniform? • Non-standard uniform (bearing distinctive sign) • Civilian clothes? • Who? • Regular forces? • Irregular or guerilla forces? • When? • IAC? • Before preparing? • Preparing for attack? • During attack? • Why? • To betray confidence? • Spying? • Sabotage? • Infiltrate?

17. Perfidy and Uniforms What? • Analysis differs depending on what the person is wearing • Three options: • Enemy’s uniform • Non-standard “uniform” including a distinctive sign recognizable at a distance • Civvies

18. Perfidy and Uniforms Who and When? • Remember AP I, Art 44? • Different rules for “guerillas” and regular armed forces • Combatants must carry arms openly / distinguish themselves • “during engagements” AND • “while engaged in a military deployment preceding the launching of an attack in which he is to participate”

19. Detention and Internment Who? • 7. This Article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict. ~ AP I Art 44

20. Perfidy and Uniforms When?Ferrell Article • Fleck states that Germany and several other States understand "military deployment" to mean "any movement towards the point from which an attack is to be launched." The Commentary to Protocol I supports this point, stating that the United States, the United Kingdom, Australia, Canada, the Netherlands, and the Republic of Korea all made a declaration of understanding regarding Article 44(3)'s second sentence that "the term 'deployment' signifies any movement towards a place from which an attack is to be launched." The Commentary to Protocol I interprets this understanding to mean that deployment begins when combatants move from an assembly or rendezvous point with the intention of advancing on their objective.

21. Perfidy and Uniforms Why? • Whether one’s choice of clothing is perfidious depends on why the individual is wearing such clothing • What are possible reasons?

22. Perfidy and Uniforms Why • “In international armed conflict, standard uniforms should be the norm; non-standard uniforms, the rare exception; civilian attire, even rarer. But risk of denial of prisoner of war status, while a serious consideration, does not answer the commander's question: Is wearing something less than standard uniform illegal? The answer in treaty law and state practice is clear: Wearing a partial uniform, or even civilian clothing, is illegal only if it involves perfidy . . . Military personnel wearing non-standard uniform or civilian clothing are entitled to prisoner of war status if captured. Those captured wearing civilian clothing may be at risk of denial of prisoner of war status and trial as spies.” • W. Hays Parks, Special Forces’ Wear of Non-Standard Uniforms, 4 Chi. J. Int’l L. 493 (2003).

23. Perfidy and Uniforms ICRC Study • Rule 106: Combatants must distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. If they fail to do so, they do not have the right to prisoner-of-war status.

24. Perfidy and Uniforms Why • “Violation of the law of war (perfidy) occurs when a soldier wears civilian clothing--not a non-standard uniform--with intent to deceive, and the deception is the proximate cause of the killing, wounding, or capture of the enemy. Perfidy does not exist when a soldier in civilian attire or non-standard uniform remains identifiable as a combatant, and there is no intent to deceive.” • W. Hays Parks, Special Forces’ Wear of Non-Standard Uniforms, 4 Chi. J. Int’l L. 493 (2003).

25. Perfidy and Uniforms Concluding Observations • Perfidy (bad faith) = not okay, ruses (“fair tricks”) = okay • AP I Commentary lists three elements of perfidy • Invite confidence • Intent to betray (subjective) • Existence of LOW protection (objective) • Fourth? (effect = killing, injuring, capturing) • “Gray area” persists (attempts?) • Related to uniform/non-uniform use: • Three possibilities: • 1) perfidy • 2) loss of protection (e.g., spying) • 3) no loss of protection • Must answer the 4 W’s (what, who, when, why) • What: enemy uniform; non-standard uniform; civvies? • Who: regular or irregular; SOF? • When: Preparing or Executing or Activities Prior? • Why: what’s your intent?