Treachery and Perfidy. Prohibited under the law of war. (FM 27-10, para. 50; HR. art. 23b.) Perfidy involves injuring
the enemy by his adherence to the law of war (actions are in bad faith). Perfidy degrades the protections and mutual
restraints developed in the interest of all Parties, combatants, and civilians. In practice, combatants find it difficult to
respect protected persons and objects if experience causes them to believe or suspect that the adversaries are abusing their
claim to protection under the LOW to gain a military advantage. (FM 27-10, para. 50.)
Feigning and Misuse. Distinguish feigning from misuse. Feigning is treachery that results in killing, wounding, or
capture of the enemy. Misuse is an act of treachery resulting in some other advantage to the enemy. According to GP I,
Article 37(1), the killing, wounding, or capture via "[a]cts 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 [are perfidious, thus prohibited acts]." (U.S. considers customary law.) Article 37(1)
does not prohibit perfidy per se, only certain perfidious acts that result in killing, wounding, or capturing, although it
comes very close. The ICRC could not gain support for an absolute ban on perfidy at diplomatic conference. Note,
however, that the U.S. view includes breaches of moral, as well as legal, obligation as being a violation, citing the
broadcasting of an announcement to the enemy that an armistice had been agreed upon when it had not as being
treacherous. (FM 27-10, para 50.) Note that in order to be a violation of GP I, Article 37, the feigning of surrender or an
intent to negotiate under a flag of truce must result in a killing, capture, or surrender of the enemy. Simple misuse of a
flag of truce, not necessarily resulting in one of those consequences is, nonetheless, a violation of Article 38 of Protocol I,
which the U.S. also considers customary law. An example of such misuse would be the use of a flag of truce to gain time
for retreats or reinforcements. (HR, art 23(f))
Feigning incapacitation by wounds/sickness. (GPI, art. 37(1)(b).)
Feigning surrender or the intent to negotiate under a flag of truce. (GP I, Art 37(1)(a).)
Feigning civilian, noncombatant status. "Attacking enemy forces while posing as a civilian puts all civilians at
hazard." (GP I, art 37(1)(c); NWP 1-14M, para. 12.7.)
Feigning protected status by using UN, neutral, or nations not party to the conflict's signs, emblems, or uniforms.
(GP I, art 37(1)(d).)
Misuse of Red Cross, Red Crescent, and cultural property symbol. Designed to reinforce/reaffirm HR, Article 23f.
GWS requires that wounded & sick, hospitals, medical vehicles, and in some cases, medical aircraft be respected and
protected. Protection lost if committing acts harmful to enemy. Cultural property symbols include 1954 Hague Cultural
Property Convention, Roerich Pact, and 1907 Hague Conventions symbol.
Espionage. (FM 27-10, para. 75; GP I, art. 46.) Acting clandestinely (or on false pretenses) to obtain information for
transmission back to their side. Gathering intelligence while in uniform is not espionage. Espionage is not a law of war
violation. No protection, however, under Geneva Conventions for acts of espionage. If captured, a spy may be tried
under the laws of the capturing nation. E.g., Art. 106, UCMJ. Reaching friendly lines immunizes spy for past espionage
activities. Therefore, upon later capture as a lawful combatant, the alleged "spy" cannot be tried for past espionage.
Reprisals. (FM 27-10, para 497.) An otherwise illegal act done in response to a prior illegal act by the enemy. The
purpose of a reprisal is to get the enemy to adhere to the law of war. Reprisals are authorized if the following
requirements are met: it's timely; it's responsive to enemy's act; must first attempt a lesser form of redress; and must be
proportional. Prisoners of war and other protected persons "in your control" cannot be objects of reprisals. Protocol I
prohibits reprisals against numerous targets such as the entire civilian population, civilian property, cultural property,
objects indispensable to the survival of the civilian population (food, livestock, drinking water), the natural environment,
installations containing dangerous forces (dams, dikes, nuclear power plants) (GP I, arts. 51-56). The U.S. position is that
reprisals are prohibited only when directed against protected persons as defined in the Geneva Conventions. U.S. policy
is that a reprisal may be ordered only at the highest levels (NCA).
Chapter 2
16
Law of War
Previous Page
