Journal of Conflict & Security Law ß Oxford University Press 2012; all rights reserved.
For permissions, please e-mail: [email protected]
doi:10.1093/jcsl/krs022
Advance Access published on 22 September 2012
.......................................................................
Of Wolves and Sheep: A Purposive Analysis of Perfidy
Prohibitions in International Humanitarian Law
Mike Madden*
Abstract
A combatant in an armed conflict, like a wolf in sheep’s clothing, can seek to gain
a tactical or strategic advantage by resort to deception and trickery. International
Humanitarian Law (IHL), however, distinguishes between permissible ruses of
war and illegal acts of perfidy. How, then, should combatants conduct themselves
so as to avoid violating IHL’s perfidy prohibitions? This article argues that belligerents should interpret prohibitions against perfidy in a purposive manner
(looking to causative links that may exist between perfidy and harm) in order
to avoid eroding the protection that IHL affords to designated groups. A close
analysis of potentially perfidious land, air and sea combat practices will further
reveal that some accepted practices may need to be reassessed and/or ceased if
States wish to comply with purposively interpreted perfidy prohibitions.
1. Introduction
It came to pass one day that a wolf, who had previously been unable to penetrate
the defences of a nearby flock of sheep, found the fleece of a skinned sheep lying
on the ground. The wolf cunningly wrapped himself in the sheepskin, and made
his way into the midst of the flock, undetected, with the intention of attacking a
choice lamb. However, just as the disguised wolf was about to pounce on his
prey, a shepherd came among the flock looking for a sheep to slaughter for
supper. The shepherd inadvertently selected the wolf-sheep, killed him and
ate him.1 The moral of this story could be expressed as follows: those who
*
1
CD, BA (Royal Military College of Canada), MA (Dalhousie University), LLB
(Dalhousie University’s Schulich School of Law), JSD (candidate) and Adjunct
Professor, Dalhousie University’s Schulich School of Law. Email: maddenrainbow@
yahoo.com. I would like to thank Bill Fenrick, whose comments on an earlier draft of
this article were most helpful. I would also like to thank the Law Foundation of Nova
Scotia for its generous award of a Millennium Graduate Fellowship that greatly
facilitated the writing of this Article. The opinions and views expressed in this
Article are solely those of the author acting in his personal capacity and they are
not intended to, and do not necessarily reflect, the views of the Government of
Canada, the Canadian Forces, or the Office of the Judge Advocate General.
This story derives originally from Aesop’s Fables, written at some time between 620–
560 BC. An alternate version of the fable suggests that, while the disguised wolf is
among the sheep, a second wolf attacks the flock and kills the wolf-sheep for supper.
..............................................................................
Journal of Conflict & Security Law (2012), Vol. 17 No. 3, 439–463
440
Mike Madden
perpetrate fraudulent and deceitful acts often come to harm as a result of their
conduct.
In contemporary armed conflicts, one might think of non-combatants as
sheep: they are ill-prepared to defend themselves, and they generally seek to
live in peace, untouched by combat inasmuch as this is possible. Combatants, on
the other hand, are much more like wolves: they are hostile, dangerous and can
present a threat to civilian populations. Furthermore, combatants can and will
often seek to gain tactical and strategic advantages through trickery and deception—or, metaphorically, by donning sheep’s clothing. How, then, should combatants conduct themselves so as to avoid the fate of the fabled wolf?
This question will essentially serve as the focus of the ensuing discussion
on prohibitions against perfidy in international humanitarian law (IHL). An
analysis of conventional and customary international law of armed conflict
(LOAC)2 at the outset of this article will demonstrate that many ambiguities
and grey areas exist in the laws that purport to distinguish between permissible
ruses of war and illegal acts of perfidy. An explanation of the rationale underlying perfidy prohibitions will help to illuminate the problems that flow from
ambiguities in the present law, and will provide context for the author’s proposition that prohibitions against perfidy should be interpreted purposively (by
importing concepts of causation commonly used within domestic legal systems)
in order to avoid eroding protections that LOAC seeks to afford to designated
groups, including civilians, in armed conflicts. Finally, investigation into potentially perfidious practices in each of the land, air and sea environments will
reveal that some more careful analysis of these practices might be necessitated
by States if they wish to avoid running afoul of IHL’s perfidy prohibitions.
Ultimately, while recognizing that much of the LOAC relating to perfidy is
vague, I will argue that States should interpret and apply this law in a manner
that will avoid diluting the protections offered to designated groups in armed
conflicts. This kind of purposive interpretation (which is consistent with general
rules of international law that require the law to be interpreted in accordance
with its object and purpose)3 may require States to reassess and/or cease
commonly accepted combat practices.
2
3
Throughout this article, reference to ‘International Humanitarian Law’ and ‘Law of
Armed Conflict’ will be made interchangeably.
See, for instance, Vienna Convention on the Law of Treaties (23 May 1969, entered
into force 27 January 1980) 1155 UNTS 331, at article 31 (‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in the light of its object and purpose’) (emphasis
added) (VCLT).
Purposive Analysis of Perfidy Prohibitions in IHL
441
2. Conventional and Customary Law Relating to Perfidy
A. Perfidy in General
The origins of a prohibition against perfidy in international law are somewhat
unclear. At least one scholar has attempted to demonstrate that a prohibition
existed as early as in the middle ages, during the age of chivalry when noble
knights were the dominant participants in armed conflicts,4 although there are
some indications that the rule can be traced back even further to the seventh
century, at least within the Islamic realm of Caliph Abu Bakr.5 However, the
first large, modern multi-lateral treaty to codify such a prohibition was the
1907 Hague Regulations, which, at Article 23(b), rendered it forbidden for
combatants to ‘kill or wound treacherously individuals belonging to the hostile
nation or army’,6 and at Article 24 permitted ‘ruses of war and the employment of measures necessary for obtaining information about the enemy’.7 This
prohibition against treachery ‘is believed to broadly encompass various types
of attacks on civilians and combatants, including acts of perfidy’.8 The
synonymy, or ‘historic overlap’, between treachery and perfidy has generally
been acknowledged by IHL scholars.9 However, while the above provisions
reflected customary international law at the time they were codified, it should
be noted that they failed to meaningfully explain how one might distinguish
between legal ruses of war and illegal acts of treachery.10 Ideally, the present
article will provide some guidance as to how one might better understand
the differences between permissible ruses of war and illegal perfidy for the
future.
A more contemporary and detailed prohibition against perfidy can be found
in Additional Protocol I to the Geneva Conventions, which, at Article 37(1)
stipulates, ‘it is prohibited to kill, injure or capture an adversary by resort to
perfidy’, while defining perfidy as any ‘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
4
5
6
7
8
9
10
See generally, TC Wingfield, ‘Chivalry in the Use of Force’ (2001) 32 U Tol L Rev 111
(reviewing the history of chivalry and perfidy in armed conflict since the middle ages).
See LC Green, The Contemporary Law of Armed Conflict (Manchester University
Press 1993) at 20.
Hague Regulations Respecting the Laws and Customs of War on Land, Annexed to
Hague Convention (IV) (18 October 1907) 2 AJIL Supp 90 (Hague Regulations).
ibid.
JC Dehn, ‘Permissible Perfidy? Analysing the Colombian Hostage Rescue, the
Capture of Rebel Leaders and the World’s Reaction’ (2008) 6 J Intl Crim Justice
627, 632.
ibid 636.
Y Dinstein, The Conduct of Hostilities Under the International Law of Armed Conflict
(CUP 2004) 199.
442
Mike Madden
intent to betray that confidence’.11 Even more recently, Article 8(2)(b)(xi) of the
Rome Statute of the International Criminal Court listed ‘killing or wounding
treacherously individuals belonging to the hostile nation or army’ as a ‘war
crime’.12 Since 172 States have ratified Additional Protocol I,13 121 States
have ratified the Rome Statute14 and 35 States have ratified the Hague
Regulations,15 it is evident that a vast majority of States are bound by at least
some form of treaty-based perfidy prohibition.
However, leading scholars seem to agree that even States that have not ratified treaties outlawing perfidious forms of combat are nonetheless subject to a
prohibition against such conduct at customary international law. For instance, in
their recent comprehensive survey of customary IHL, Jean-Marie Henckaerts
and Louise Doswald-Beck found that ‘killing, injuring or capturing an adversary
by resort to perfidy is prohibited’ in both international and non-international
armed conflicts.16 Michael Schmitt has echoed this proposition, stating that
various elements of older perfidy prohibitions are ‘now unquestionably customary’.17 Finally, the San Remo Manual on International Law Applicable to
11
12
13
14
15
16
17
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts (Protocol I) (opened for
signature 8 June 1977, entered into force 7 December 1979) 16 ILM 1391) (AP I).
Rome Statute of the International Criminal Court (opened for signature 17 July 1998,
entered into force 1 July 2002) 2187 UNTS 90 UN Doc A/CONF 183/9 (Rome
Statute).
International Committee of the Red Cross, International Humanitarian Law—
Treaties & Documents (2005) 5http://www.icrc.org/ihl.nsf/INTRO?OpenView4 accessed 28 June 2012.
United Nations Treaty Collection, Rome Statute of the International Criminal Court
(13 January 2011) 5http://treaties.un.org/Pages/ViewDetails.aspx?src ¼TREATY&
mtdsg_no¼XVIII-10&chapter ¼18&lang ¼ en4accessed 28 June 2012.
ICRC (n 13).
J-M Henckaerts and L Doswald-Beck, Customary International Humanitarian Law:
Volume I—Rules (CUP 2005) 221 (Customary IHL Study); although there is surely
scope for one to argue that rules of perfidy are different in international and
non-international armed conflicts (see, for instance, Dehn (n 8), for the suggestion
that some forms of perfidy are more permissible in the context of state actions against
an insurgent terrorist group within an ongoing non-international armed conflict), for
the purposes of this article I am prepared to provisionally accept the Customary IHL
Study’s assertion that the rules are essentially the same in both types of conflict, as this
will allow my ensuing discussion to focus more narrowly on the content and meaning
of the perfidy rules themselves. Although the ensuing discussion will cover both
international and non-international armed conflicts, there may be occasions in this
article where terms are used that only relate to one type of conflict (e.g. the terms
“combatant” and “espionage” refer to concepts that only apply within international
armed conflicts). In such cases, the terms should be understood as having their normal
meanings; no suggestion is made within this article that any other (non-perfidy) rules
of IHL apply equally in both international and non-international armed conflicts.
M Schmitt, ‘Asymmetrical Warfare and International Humanitarian Law’ (2008) 62
Air Force L Rev 1, 22. See also L René Beres, ‘Religious Extremism and
International Legal Norms: Perfidy, Preemption, and Irrationality’ (2008) 39 Case
W Res J Intl L 709, 722, fn 62 (noting, in relation to the perfidy prohibitions contained
Purposive Analysis of Perfidy Prohibitions in IHL
443
Armed Conflicts at Sea prepared by international lawyers and naval experts,
which purports to be a ‘contemporary restatement’18 of the naval IHL based in
large part upon ‘state practice during [the twentieth] century, in particular practice since the Second World War’,19 stipulates that perfidy is prohibited.20
Looking at how rules of customary and conventional international laws of
armed conflict operate together with one another, it is important to recall two
things: first, customary international law applies concurrently with treaty law21
(at least to the extent that the two sources do not contradict one another), and
second, customary international law is binding upon all states, ‘except for such
states as have dissented from the start of that custom’.22 Thus, if the definition of
(and prohibition against) perfidy at customary international law is identical to
definitions and prohibitions within a given treaty instrument, and if no States
have objected to the custom, then it follows that the provisions of the given
treaty apply to all States as part of customary international law. In terms of the
present discussion, it is apparent that both the prohibition against and the definition of perfidy found at Rule 65 of Henckaerts and Doswald-Beck’s
Customary IHL Study23 corresponds verbatim with the prohibition found at
Article 37(1) of Additional Protocol I.24 Furthermore, the Customary IHL
Study notes that ‘no official contrary practice was found with respect to either
international or non-international armed conflicts. No party has claimed the
right to resort to perfidy’.25 In other words, if one accepts that customary IHL
relating to perfidy is, in fact, what the Customary IHL Study asserts it to be,26
18
19
20
21
22
23
24
25
26
within Additional Protocol I and the Hague Regulations, ‘it is widely recognized that
these rules are binding on the basis of customary international law’.)
L Doswald-Beck (ed), San Remo Manual on International Law Applicable to Armed
Conflicts at Sea (CUP 1995) 5 (San Remo Manual).
ibid 67.
ibid 29.
MN Shaw, International Law (6th edn, CUP 2008) 96–97.
ibid 91.
J-M Henckaerts and L Doswald-Beck (n 16) 221–25.
AP I (n 11) above.
J-M Henckaerts and L Doswald-Beck (n 16) at 223 (emphasis added). The Customary
IHL Study may have been somewhat loose with words in stating that no party claims a
right to resort to perfidy. It may have been more accurate for the study to state, ‘no
party claims a right to kill, injure, or capture by resort to perfidy’.
The Customary IHL Study, supported as it is by its two-part second volume containing some 4400 pages of persuasive evidence of state practice that serves to ground the
rules enumerated in Volume I (see J-M Henckaerts and L Doswald-Beck, Customary
International Humanitarian Law: Volume II—Practice (CUP 2005)) probably reflects
the present state of customary international humanitarian law in many areas, including in relation to the law of perfidy. However, the methodology and some of the
conclusions of the study have been extensively criticized. See, for instance,
C Emanuelli, International Humanitarian Law (Éditions Yvon Blais 2009) 36–41
(arguing that the Customary IHL Study failed to explain whether rules were consentor consensus-based, and that the study failed to ‘weigh’ various types of state practice
when finding customary law); see also W Hays Parks, ‘The ICRC Customary Law
Study: A Preliminary Assessment’ (2005) 99 ASIL Proc 208 (noting the study’s failure
444
Mike Madden
then Article 37 of Additional Protocol I would apply equally to all states as
part of customary IHL, regardless of whether States have ratified that treaty,
and regardless of whether they are fighting in international or non-international
armed conflicts.
B. Perfidy as a War Crime
A distinction must be made, however, between forms of perfidy that are apparently permissible, forms that are merely illegal under IHL, and perfidy that
constitutes criminal conduct amounting to a war crime. For instance, the
Rome Statute recognizes that only ‘killing or wounding treacherously’ constitutes a war crime.27 In other words, the perfidious capturing of an enemy is
non-criminal, in spite of the fact that it is illegal under Article 37 of
Additional Protocol I. The Customary IHL Study similarly recognized that
‘killing, injuring or capturing by resort to perfidy is illegal under customary
international humanitarian law, but only acts that result in serious bodily
injury, namely killing or injuring, would constitute a war crime’.28 A corollary
to this proposition is that any perfidy that does not lead to the killing, wounding
or capture of an enemy is neither illegal nor criminal under IHL.29 Thus, in a
naval context, one commentator has suggested that ‘there could be a use of
deceptive lighting that is perfidious but not prohibited. For example, a ship
that attempts to pass itself off as a merchant in order to break out of a blockaded
port might not rise to the level of treachery that is banned’.30 This assessment of
27
28
29
30
to accurately consider State deeds during actual armed conflicts, rather than just state
words in manuals and legislation, as evidence of customary IHL); LM Nicholls, ‘The
Humanitarian Monarchy Legislates: The International Committee of the Red Cross
and its 161 Rules of Customary International Humanitarian Law’ (2006) 17 Duke J
Intl & Comp L 223 (suggesting that the study may have been more of an effort to
develop IHL than to restate its existing rules); and JB Bellinger III and WJ Haynes II,
‘A US Government Response to the International Committee of the Red Cross Study
Customary International Humanitarian Law’ (2007) 89 Intl Rev Red Cross 443
(noting, among other things, the study’s failure to account for positions taken by
specially affected States, such as nuclear States, in determining customary IHL rules).
Rome Statute (n 12) art 8(2)(b)(xi).
J-M Henckaerts and L Doswald-Beck (n 16) 225.
This reality has been recognized in publications of the International Committee of the
Red Cross. See, for instance, F Kalshoven and L Zegveld, Constraints on the Waging
of War: An Introduction to International Humanitarian Law (4th edn, CUP 2011)
(copyright held by ICRC, 2011) 94:
Although the ‘acts inviting confidence . . . with intent to betray it’ are stated to
‘constitute perfidy’, carrying out such acts is not enough to constitute a crime.
Instead, the acts are a qualifying element which, together with the material
element: the actual killing, injuring or capturing of the adversary, constitutes
the crime of ‘perfidious killing’ (etc.).
MG Morris, ‘‘Hiding Amongst a Crowd’ and the Illegality of Deceptive Lighting’
(2007) 54 Naval L Rev 235, 251.
Purposive Analysis of Perfidy Prohibitions in IHL
445
such a deceptive practice seems to be correct in law, and it highlights the fact
that, while there may be very good reasons and some State31 and academic32
support for the idea of outlawing all perfidious conduct in armed conflicts, only
perfidious acts leading to capture, injury or death are presently illegal, and only
the latter two constitute war crimes.
The above distinction between illegal and criminal acts in breach of IHL
is significant, since, as Dehn has suggested, ‘a non-criminal violation of IHL
is a nominally permissible rule for nations’,33 in that only limited repercussions
might arise against a State from its lesser breaches of the law. Notwithstanding
this hypothesis, I believe that it is still important to identify, observe and enforce
even non-criminal provisions of IHL, since doing so helps to serve what Mark
Dumbl has described (in a somewhat related context) as an ‘expressive’ international legal objective: ‘to augment the moral value of law, stigmatize those
who break it, and establish an authoritative public, and transnational, narrative’.34 Thus, even allegations of non-criminal breaches of IHL, such as those
that could arise from the capture of an adversary by resort to perfidy, should be
investigated and adjudicated, if only through the general international legal
regime dealing with State responsibility.
C. Perfidy in the Naval Environment
While the preceding discussion of the rules of IHL dealing with perfidy is generally relevant in the domains of land, air and sea warfare, some unique exceptions to the rules apply exclusively in a naval context. For instance, while Article
37(1)(d) of Additional Protocol I lists, as an example of perfidy, ‘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’, the same treaty, at Article
39(3), qualifies this prohibition: ‘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’. The rules applicable to the use of flags during armed conflicts at sea that
31
32
33
34
See, for instance, D Fleck, ‘Ruses of War and Prohibition of Perfidy’ (1974) 13 Revue
de Droit Penal et de Droit de la Guerre 269, 287 (noting that, when Additional
Protocol I was being drafted, “Israeli government experts suggested a general
clause to the effect that ‘any act of perfidy towards the enemy is forbidden’”).
See generally BC Greene, ‘Bridging the Gap that Exists for War Crimes of Perfidy’
(August 2010) The Army Lawyer 45 (wherein the author advocates for the criminalization of all forms of perfidy, regardless of whether they result in harm to an adversary, through the ‘grave breaches’ regime that is created within the Geneva
Conventions).
Dehn (n 8) 639.
MA Drumbl, ‘The Expressive Value of Prosecuting and Punishing Terrorists:
Hamdan, The Geneva Conventions, and International Criminal Law’ (2007) 75 Geo
Wash L Rev 1165, 1170.
446
Mike Madden
are referred to in Article 39(3) have typically included a right of belligerent
vessels to fly the flags of other States in order to deceive enemy forces:
As a matter of customary law, for reasons buried in history but probably
related to weapons technology of days gone by, it was a permissible ruse of
war for enemy merchant vessels to fly false colours and to disguise themselves as neutral vessels or as merchant vessels. The only qualification was
that a warship must cease using false colours before it started firing. This
use of false flags was inconsistent with the practice in land warfare.35
In other words, it is generally prohibited for parties to use the ‘signs’ (flags) of a
neutral state, but it may be permissible for a belligerent naval vessel to fly a
neutral, or even an enemy State’s flag from its mast so long as it does not engage
in any attacks while wearing false colours.
It is open to debate whether a rule of customary international law permitting
the use of false flags at sea still exists. Dieter Fleck observed, in 1974, that ‘the
use of such flags for the purpose of deception has been a controversial issue at all
times’,36 and, while he suggested that ‘commanders of warships have used false
flags for the purpose of deception very frequently in recent times’,37 it is worth
noting that the most recent example of such a practice that he cited took place
in 1916.38
Likewise, the drafters of the 1995 San Remo Manual articulated a rule that
‘warships and auxiliary vessels [. . .] are prohibited from launching an attack
whilst flying a false flag’,39 but the authors expanded upon their reasoning in
the accompanying ‘Explanation’ to the Manual as follows:
Deception at sea has been a most remarkable feature in naval history.
Warships were entitled to disguise themselves if they so wished by, for
instance, flying other colours. [. . .] From the outset, a number of participants were uncomfortable with this specific feature in naval warfare, in
particular with regard to the feigning of neutral status. [. . .] The question
logically arose whether the traditional rules on deception at sea should
not be departed from.40
However, the group of San Remo participants and advisors (which included
distinguished legal scholars, naval officers and military legal officers from over
35
36
37
38
39
40
WJ Fenrick, ‘Legal Aspects of Targeting in the Law of Naval Warfare’ (1991) 29 Can
YBk Intl L 238, 246.
Fleck (n 31) 293.
ibid.
ibid 293–94.
San Remo Manual (n 18) 28 (emphasis added).
L Doswald-Beck (ed), San Remo Manual on International Law Applicable to Armed
Conflicts at Sea—Explanation (CUP 1995) 184 (San Remo Explanation) (emphasis
added).
Purposive Analysis of Perfidy Prohibitions in IHL
447
20 States)41 avoided answering the specific question of whether it remains permissible for warships to fly false flags when they concluded that ‘a total prohibition on deception in naval armed conflict [was] unachievable’.42 With respect,
the San Remo participants seem to have conflated a very discrete and controversial issue (whether customary IHL still allows naval vessels to wear false
colours), with a much more general and settled legal issue (whether deception
in naval warfare is permitted by IHL). Thus, while the San Remo Manual’s rule
prohibiting the launching of attacks while flying a false flag seems to implicitly
affirm old customary laws of naval warfare permitting the wearing of false colours under other circumstances, the fact that ‘a number of participants’ (many of
whom could have included senior naval officers from different States) expressed
doubt as to the legality of this practice in present times suggests that the custom
may no longer be regarded as legitimate under IHL.
Thus, while a preponderance of authorities, including Additional Protocol I
and the San Remo Manual, all attest to the ongoing existence of a rule of IHL
permitting warships to fly false flags up until the moment immediately preceding
an attack, it is possible that repetitions of this rule are merely mechanical rather
than critical in nature: restatements of the rule fail to examine the law from a
contemporary perspective, and may ignore important indicia of State practice
that refute the existence of such a rule. It would be safest, then, for my purposes
of articulating what IHL laws relating to perfidy presently state, to say that
warships might be permitted to fly false flags, including the flags of neutral
States or States not party to a conflict, under some circumstances, but certainly
not while engaged in an attack. Unfortunately, until a more extensive survey of
state practice is performed, one cannot say more about the naval ‘false flag’
exception to general prohibitions against perfidy in IHL.
3. Ambiguities and Grey Areas in the Law of Perfidy
Having described the relevant treaty and customary law dealing with perfidy, it
is now possible to examine how that body of law might be interpreted in order to
identify ambiguous aspects of the law that are vulnerable to exploitation by
parties to an armed conflict. Thus, the ensuing discussion will focus not on
the question of whether a rule of law permitting or prohibiting an activity
exists (eg does a naval exception to the prohibition against flying false flags
exist at IHL), but instead on the question of what the previously identified
perfidy rules actually mean, with particular concentration on problematic and
vague elements of the various laws.
Recalling from Article 37(1) of Additional Protocol I that perfidy itself is not
illegal in armed conflicts, and that only perfidious acts leading to death, injury or
41
42
See San Remo Manual (n 18) 46–55 for a list of contributors (and their affiliations) to
the San Remo Round Table processes.
San Remo Explanation (n 40) 184 (emphasis added).
448
Mike Madden
capture of an adversary are illegal, it would be useful to know, precisely, how a
combatant might kill, injure or capture someone by resort to perfidy. In other
words, what kind of connection between a perfidious act and subsequent harm to
an adversary is required in order for the perfidy prohibition to be engaged?
A. To ‘Kill, Injure or Capture By Resort to Perfidy’: Identity Requirements
It is obvious from a plain reading of Article 37(1) that a combatant infringes a
rule of IHL when he kills, wounds or captures an enemy, while himself resorting
to perfidy. The issue becomes more complicated, however, when a separation
exists between the belligerent who causes harm to the enemy and the belligerent
who perfidiously deceives the enemy. Consider the following example: a soldier
from Army X, by feigning wounds, entices an enemy combatant to lay down arms
and render him medical assistance. When the enemy combatant is thus vulnerable and exposed, a second soldier from Army X shoots and kills the enemy
combatant from a position of cover. As this example demonstrates, a strictly
textual interpretation of Article 37(1) will not help us to determine whether a
perfidious breach of IHL has been committed by Army X, since the combatant
who engaged in a perfidious practice did not actually (or directly) cause harm to
his enemy. Similarly, in a night time maritime environment, it is easy to imagine a
scenario in which an auxiliary vessel from Blue Navy, while deceptively lit so as
to appear as a vessel engaged in fishing, provides third-party targeting information regarding the identity and location of a Red Navy unit within visual range to
a second over-the-horizon warship from Blue Navy. If this information subsequently leads to a fatal surface-to-surface missile attack against the Red Navy
vessel by the Blue Navy warship, then has the Blue Navy violated IHL’s perfidy
prohibitions? No attacks were launched by the hypothetical auxiliary ship (that
was perfidiously disguised as a non-combatant vessel engaged in fishing), so the
letter of Article 37(1) may have been respected, but it seems that a reasonably
broad interpretation of the Additional Protocol I provision is needed in this case
if the perfidy prohibition is to have meaningful effect.
As the above examples demonstrate, some kind of ‘identity’ connection between a belligerent who engages in perfidy and one who concurrently kills,
wounds or captures an adversary is implicitly contemplated within Article
37(1) in order for a violation of IHL to have occurred. Clearly, when the same
entity commits both perfidy and an aggressive act that harms the enemy, then a
violation of IHL’s perfidy prohibitions has taken place. However, when an identity separation exists between deceiving and attacking forces, some ambiguity
exists in the law regarding the level of cooperation or connection that must be
present between these forces in order to establish an illegal form of perfidy.
B. To ‘Kill, Injure or Capture By Resort to Perfidy’: Temporal Requirements
Again, it is relatively clear from the wording of Article 37(1) that IHL’s perfidy
provisions are violated when a soldier causes harm to an enemy while engaged in
Purposive Analysis of Perfidy Prohibitions in IHL
449
a perfidious practice. However, the law is less clear about the permissibility of
killing, wounding or capturing an enemy when a temporal separation exists
between a perfidious practice and an associated aggressive act. For instance,
the wording of Article 37(1) does not reveal whether a soldier who avoids suffering from the onslaught of an enemy attack by feigning death, but then rejoins
the battle by killing enemy forces immediately after the enemy has advanced
past him, has committed a perfidious violation of IHL.43 What if the soldier
waits an hour, or a day, and then rejoins the battle—would such a time lapse
change the legal analysis of that soldier’s actions? Likewise, consider a scenario
in which a warship succeeds in transiting a hostile choke point or narrow straight
both by assuming a deceptive lighting posture and by transmitting false
Automatic Identification System (AIS)44 data suggesting that the warship is a
civilian cruise liner, but the warship then launches a missile strike against enemy
forces immediately after clearing the choke point (and ceasing deceptive measures). Technically, there is no temporal overlap between the ship’s perfidious
conduct and its attack on the enemy, so it is difficult to conclude whether the
warship has committed an act of impermissible perfidy.
Intuitively, tacticians, strategists and legal scholars will surely recognize that a
line must be drawn between hostile acts that are sufficiently separated in time
from perfidious practices as to be legal, and aggressive acts that follow so closely
after perfidious conduct that they must be considered illegal. The problem, of
course, is that treaty-based and customary IHL offer no guidance as to the
correct conceptual placement of that distinguishing line. Thus, it becomes necessary for parties governed and affected by IHL to interpret the content of the
relevant perfidy laws with a view to achieving the intended objectives of the
43
44
Karlshoven and Zegveld provide an analysis of this classic example of perfidious
conduct in their text (n 29) 95, but the authors neglect to consider the question of a
temporal link between perfidy and harm in their discussion:
A combatant on the battlefield may feign death to avoid capture and, either,
rejoin his own forces or get behind the enemy lines. This is misleading rather
than perfidious conduct. It is a ruse of war. But if the combatant feigns death
with intent to kill or injure an adversary, who then approaches him on the
assumption that he is wounded and in need of help, this brings the case
within the notion of perfidy in Article 37(1)(b). Even then, the combatant
feigning death with intent to kill or injure becomes guilty of a violation of
Article 37(1) only if he actually kills or injures the adversary. For, it is worth
repeating, the article does not prohibit perfidy per se but, rather, ‘to kill, injure
or capture an adversary by resort to perfidy’.
AISs are designed to automatically transmit information regarding a ship’s identity,
type, position, course and speed to other ships and to shore authorities. Most ships
making international voyages have been required to employ AIS as part of their
obligations under the International Convention for the Safety of Life
at Sea (opened for signature 1 November 1974, entered into force 25 May 1980)
1184 UNTS 3 (SOLAS), since modifications to that convention came into effect on
31 December 2004. See International Maritime Organization, Automatic Identification
System (AIS) (13 January 2011) 5http://www.imo.org/Safety/mainframe.asp?
topic_id¼7544 accessed 28 June 2012.
450
Mike Madden
provisions, both with respect to the ‘identity’ link and the ‘temporal’ link between perfidious conduct and the killing, injuring or capture of an enemy.
4. Purposive Interpretation of Perfidy Prohibitions
As the above discussion demonstrates, some interpretation of international law
relating to perfidy is necessary in order to give the law more concrete meaning.
Although, at first glance, it might seem as if a vast array of interpretive techniques could be employed in furtherance of this task, the overarching rule applicable to the interpretation of treaties (and therefore to any interpretation of
the treaty-based prohibition of perfidy that is contained with Article 37 of AP I)
is that treaties must be ‘interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of
its object and purpose’.45 In other words, if there is ambiguity in the meaning of
a treaty, then the overall object and purpose of the treaty and its provisions
should be considered as part of any attempt to resolve the ambiguity.
The object and purpose of AP I, the Geneva Conventions and IHL generally,
is humanitarian: this body of law seeks to minimize the suffering that armed
conflict necessarily imposes on humanity through a variety of rules that regulate
the conduct of hostilities. Aggressive perfidy is prohibited under IHL because it
detracts from that level of basic trust, or ‘minimum of confidence’ that ‘parties to
an armed conflict place in each other even on the battlefield’.46 There is a
near-universal consensus that perfidy prohibitions exist within the LOAC in
order to prevent any dilution of the protections that parties to an armed conflict expect for themselves, and that they expect for neutral states, NonGovernmental Organizations (NGOs), civilians and other non-combatants.47
The general danger that the prohibition seeks to avoid is perhaps best summarized by Greene, in the following manner:
Perfidious conduct that results in capture or military advantage represents a serious problem for parties, combatants, and civilians involved
in international armed conflict. In addition to the harm resulting from
45
46
47
VCLT (n 3) art 31.
Fleck (n 31) 272.
See, for instance, J Ashley Roach, ‘Ruses and Perfidy: Deception During Armed
Conflict’ (1992) 23 U Tol L Rev 395, 401 (‘the rationale of this rule is that if protected
status or protected signs, signals, symbols, and emblems are abused they will lose their
effectiveness and put protected persons and places at additional risk’); Wingfield (n 4)
135 (‘the underlying rationale is to avoid dilution of the absolute nature of these
symbols when encountered, reinforcing the legal protections which they bestow and
enact’); Dehn (n 8) 632 (‘the policies underlying this definition [of perfidy] are based
on the necessity of good faith between belligerent participants in an armed conflict
and the future risk of harm to those with protected status under IHL’).
Purposive Analysis of Perfidy Prohibitions in IHL
451
bad faith, perfidious conduct threatens to erode the protections provided
by the law of armed conflict.48
Keeping this purpose and the ambiguities in perfidy laws that were discussed
above in mind, an appropriate, purposive interpretation of IHL’s perfidy prohibitions can now be proposed.
Article 37(1) of Additional Protocol I stipulates that ‘it is prohibited to kill,
injure or capture an adversary by resort to perfidy’.49 The words ‘prohibited’,
‘kill’, ‘injure’ and ‘capture’ are unambiguous in their meanings, so dispute is not
likely to arise regarding interpretations of these terms. The phrase ‘by resort to
perfidy’, however, could be construed in a variety of ways along a continuum of
increasingly broad interpretations. A very narrow construction of this important
phrase might mean that illegal perfidy only occurs when the same individual
both commits a perfidious practice and inflicts harm upon his adversary, and
when the two events occur at the same point in time. In contrast, a broader
interpretation of the phrase might render it illegal for any element of an armed
force to kill, injure or capture an adversary after any other element of that force
has engaged in a perfidious practice, at any time during the same armed conflict.
The phrase ‘by resort to perfidy’ is thus the key to understanding IHL’s perfidy
prohibitions.
If the purpose that underlies perfidy prohibitions is to be respected, however,
and if IHL’s goal of maintaining protection for designated groups is to be
achieved, then it is clear that a broad, purposive interpretation of the phrase
‘by resort to perfidy’ is necessitated. The problems with narrower interpretations
of the law are evident:
if an emblem [or, arguably, any kind of protected status] is protected in
some circumstances but not in others, that must have the effect of diluting
its efficacy as a protected emblem in all circumstances due to the uncertainty which combatants may have as to its status in a particular conflict.50
Simply put, protections that are abused in armed conflicts will cease to be respected in armed conflicts.
Thus, IHL’s perfidy prohibitions should be interpreted purposively—that is, in
such a manner as to further the purpose that underlies the prohibitions in the
first place. It would be impossible, or at least undesirable, to articulate a set of
comprehensive rules explaining how this kind of purposive interpretation should
be carried out, since no rigid set of rules could properly account for the kind of
creativity that armed forces are capable of displaying in their attempts to
48
49
50
Greene (n 32) 49.
AP I (n 11) above.
C Griggs, ‘False Colours in the Law of Naval Warfare’ [2003] NZ Armed F L Rev 5, 9.
452
Mike Madden
deceive their adversaries:51 ‘the types of perfidy that could be used to gain a
military advantage are limited only by a belligerent’s imagination’.52 However,
the various hypothetical situations discussed above make it clear that any insistence upon strict temporal and identity connections between forces engaged in
perfidy and forces committing hostile acts will serve to defeat the underlying
purpose of perfidy prohibitions by permitting otherwise impermissible treacherous acts as to be viewed as acceptable perfidy. A more appropriate method of
interpreting the phrase ‘by resort to perfidy’ (and therefore a more appropriate
method for applying perfidy laws in general) would emphasize the concept of
causation—a concept that is already known to both domestic and international
criminal law,53 rather than technical ‘time and place’ elements of the offense. In
other words, the question of whether illegal perfidy has taken place should be
answered by determining whether an alleged act of perfidy caused the death,
injury or capture of an enemy.
The matter of causation can at times be complex even within domestic legal
systems, so critics of the interpretive approach proposed within this article might
claim that it is overly complicated and unworkable. In response to such objections, it can be argued that at least the concept of causation is one that is one
known to the law. In Canada, for instance, domestic jurisprudence emanating
from the Supreme Court of Canada (SCC) has developed two reasonably simple
tort-based tests for causation: the ‘but for’ test, and the ‘material contribution’
test.54 The ‘but for’ test establishes causation of a tortious injury where the
injury would not have occurred ‘but for’ the actions of the tort-feasor, and is
the primary test for causation.55 The ‘material contribution’ test is applied as a
secondary test for causation where it is impossible for a plaintiff to prove ‘but
for’ causation due to factors beyond the plaintiff’s control;56 liability for tortious
conduct can be established under this test where the defendant’s actions materially contributed to harm suffered by the plaintiff. Both of these tests for causation have also been employed by high courts outside of Canada,57 and these or
51
52
53
54
55
56
57
Fleck (n 31) 290, (‘it is impossible to draw up an exhaustive catalogue of examples
because any list of perfidious acts of war is bound to be incomplete’).
Greene (n 32) 50.
See, for instance, Rome Statute (n 12) art 28(a) (wherein the doctrine of command
and superior responsibility is described as applying in cases where crimes are committed ‘as a result of’ a leader’s failure to exercise proper control over subordinates;
some concept of causation is arguably now a sine qua non condition for a finding of
superior responsibility in international criminal law at the ICC).
See, generally, Resurfice Corp v Hanke [2007] 1 SCR 333 (for a discussion of how the
‘but for’ and ‘material contribution’ tests apply under different circumstances. This
case has a distinctively Canadian flavour to it, in that the injury suffered by the
plaintiff occurred in a hockey rink while the plaintiff was operating an ice-resurfacing
machine, or ‘Zamboni’).
ibid paras 21–22.
ibid para 25.
See, for instance, McGhee v National Coal Board [1972] 3 All ER 1008, 1 WLR 1
(HL) (UK) (for a British decision acknowledging the utility of the ‘but for’ test generally, and of the ‘material contribution’ test under certain restricted circumstances).
Purposive Analysis of Perfidy Prohibitions in IHL
453
similar concepts of causation are incorporated into the domestic and international criminal law that is applied by courts and tribunals around the world.58
In the context of IHL’s perfidy prohibitions, either one of these tests could
practically be applied to establish whether illegal perfidy has taken place, although the ‘but for’ test is probably the better test since it places a more appropriately demanding burden of proof on a claimant State that alleges a violation
of IHL. So, rather than having to demonstrate that a belligerent engaged in
perfidy while simultaneously killing an enemy, or, alternately, rather than
having to propose where the temporal/identity connection lines should be
drawn in each case, a claimant State would only need to demonstrate three
things in order to make out a claim of illegal perfidy: first, that a belligerent
engaged in perfidy; second, that some harm (killing, wounding or capturing) was
inflicted against armed forces of the claimant State; and, third, that the harm
would not have taken place ‘but for’ the alleged perfidious act.
Finally, in assessing whether it would be feasible to import a ‘but for’ causation test from domestic tort law into the domain of IHL, it is worth noting
that the suggestion has been made convincingly in the past by at least one
well-respected scholar. In 2005, Michael Schmitt argued that the test for whether
a civilian has directly participated in hostilities (so as to lose the general protection from targeting that extends to civilians during armed conflicts) should
include consideration of whether a belligerent force could have been harmed by
its adversary ‘but for’ the involvement of the civilian in question.59 Schmitt
further advocated this approach to identifying civilians who directly participate
in hostilities when he served as part of a group of experts60 consulted by the
International Committee of the Red Cross when that organization was preparing its Interpretive Guidance on the Notion of Direct Participation in Hostilities
under International Humanitarian Law.61 Thus, while the approach to interpreting perfidy prohibitions under IHL that I am proposing in this article is
58
59
60
61
I Bantekas, ‘On Stretching the Boundaries of Responsible Command’ (2009) 7 J Intl
Crim Justice 1197, 1199 (‘In all criminal justice systems some form of causality is
required, whether legal or factual’).
M Schmitt, ‘Humanitarian Law and Direct Participation in Hostilities by Private
Contractors or Civilian Employees’ (2005) 5 Chi J Intl L 511, 533:
Direct participation, therefore, seemingly requires ‘but for’ causation (in other
words, the consequences would not have occurred but for the act), causal proximity (albeit not direct causation) to the foreseeable consequences of the act,
and a mens rea of intent. In other words, the civilian must have engaged in an
action that he or she knew would harm (or otherwise disadvantage) the enemy
in a relatively direct and immediate way.
See M Schmitt, ‘The Interpretive Guidance on the Notion of Direct Participation in
Hostilities: A Critical Analysis’ (2010) 1 Harv Natl Sec J 5, 29 (wherein the author
describes how he recommended the ‘but for’ approach to the consultative group of
experts, and how a similar, but ‘less legalistic’ test was ultimately adopted by the
ICRC).
N Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities
under International Humanitarian Law (ICRC 2009).
454
Mike Madden
somewhat novel, it is not completely foreign to IHL, and it may provide this
specialized body of international law with some valuable cross-pollination from
the garden of domestic tort law.
At this point, it might be useful to demonstrate how this purposive interpretive technique could be applied in practice. Thus, ensuing sections of this
article will discuss some perfidy case studies in each of the land, air and sea
environments, in order to evaluate the legality of potentially prohibited practices when these practices are viewed through the lens of a purposively interpreted provision of IHL. Analysis of these case studies should help to illustrate
that the proposed causation-based test for establishing illegal perfidy is both
workable and desirable in the field of IHL.
5. Potentially Prohibited Practices in Air Warfare
While not much academic energy has been devoted to study of perfidy in general, there is a particular lacuna in commentary dealing with the subject of
perfidy in air warfare. This phenomenon might be explained by the fact that
aircraft are often thought of as having little opportunity to engage in perfidious
conduct. For instance, one commentator, after asserting an apparently accepted
rule that belligerent aircraft are forbidden from using enemy markings,
explained the prohibition as follows: ‘an aircraft, once airborne, is generally
unable to change its markings prior to actual attack as could a warship.
Additionally, the speed with which an aircraft can approach a target (in comparison with warships) would render ineffective any attempt to display true
markings at the instant of attack’.62
It is true that fixed wing aircraft generally move at very high speeds and do not
have the ability to change markings while in flight. However, the same is not
necessarily true of rotary-wing aircraft: it would not be difficult for a helicopter’s
flight engineer, while proceeding at slow speeds, to place or remove magnetic
markings from the side of the aircraft prior to an attack, even in mid-air. Thus, if
a helicopter were to wear some sort of civilian aircraft markings while in flight,
it is conceivable that the aircraft could transit through a hostile area under
cover of protection afforded to non-combatants by IHL. There is no question
that such conduct would constitute perfidy, and that it would be illegal under
IHL if the helicopter crew killed, injured or captured an enemy while false
markings were worn on the helicopter.
However, if one were to purposively interpret prohibitions against perfidy,
then it would be equally illegal for the aircraft to switch her markings from false
civilian insignia to proper military insignia immediately before launching an
attack.63 Any killing of the enemy in such a scenario, while not taking place
62
63
Roach (n 47) 415.
The author recognizes, in this hypothetical situation, that many, if not most, military
attack helicopters are distinguishable in design from civilian helicopters, at least to
Purposive Analysis of Perfidy Prohibitions in IHL
455
concurrently with perfidious practices, would still be ‘by resort to perfidy’, since
the hypothetical helicopter would have transited into an attack position only by
deceptively holding itself out to be a non-combatant aircraft. In the language of
causation, the helicopter would not have been able to commit the harm ‘but for’
the perfidy that allowed it to transit, unscathed, through hostile territory.
The danger of allowing an aircraft to perfidiously abuse non-military emblems
and insignia is readily apparent: the deceived force, having perhaps abstained
from attacking the helicopter due to its civilian markings, may not risk making
the same mistake a second time, and might be willing to shoot down legitimately
civilian helicopters in the future. In other words, there is good reason why IHL
should prevent aircraft from wearing false markings (protecting non-combatants
and other designated groups in armed conflicts), and the plain words of relevant
perfidy prohibitions (which prevent killing ‘by resort to perfidy’) can support a
purposive interpretation that upholds the spirit of the prohibition in the first
place. The purposive interpretation that would prevent aircraft from wearing
false markings should therefore be viewed as the correct one, and the one most
consistent with the object and purpose of the perfidy prohibition contained
within treaty-based IHL.
The above hypothetical example is one that merits consideration/reconsideration by armed forces if they wish to fully comply with the letter and spirit of
IHL. For instance, Columbian forces recently carried out an operation raising
questions concerning their compliance with IHL rules concerning perfidy when
they used two white helicopters ‘disguised as those of a fictitious NGO’ to effect
the rescue of several hostages from an insurgent guerrilla group, and to capture
key leaders of the group.64 In short, some recent State practice has failed to
comply with perfidy rules of air warfare, so it is evident that more critical discussion of the rules and their application is now apposite; furthermore, as I have
argued above, any such discussion would benefit from a new focus on causative
aspects of illegal perfidy.
6. Potentially Prohibited Practices in Land Warfare
In land-based warfare, one of the simplest ways to confuse an enemy is by
dressing in a deceptive manner. Thus, the following case study will consider
the application of IHL’s perfidy prohibitions in the context of ruses and perfidious acts involving the use of civilian clothing by members of a belligerent armed
force. My intent, in the ensuing discussion, is to focus on perfidy considerations
64
trained eyes. Nonetheless, some military helicopters (such as certain search and rescue
and tactical helicopters) could be passed off as civilian helicopters under appropriate
circumstances.
Dehn (n 8) 630. It should be noted that this incident took place in the context of a
non-international armed conflict, and, as mentioned previously (n 16) there is some
debate about whether perfidy rules applicable in international armed conflicts apply
equally within non-international armed conflicts.
456
Mike Madden
rather than on laws dealing with espionage, although some discussion of the
latter concept will be necessary due to intersections between perfidy and espionage laws.
An excellent starting point for the present case study can be found in a
modified version of a hypothetical scenario that William Ferrell described in
his comprehensive article on the subject of special forces’ use of deceptive uniforms in combat.65 In Ferrell’s fictional scenario, he considered the legality of an
operation wherein a reconnaissance force infiltrated a hostile urban environment by wearing civilian clothing, and then moved into a position of overwatch
on a hill outside of the city in order to provide covering fire (while still dressed in
civilian clothing) immediately prior to the commencement of an attack on the
enemy by a different special forces assault team.66 In order to adjust this scenario for a perfidy-specific analysis, I will consider essentially the same hypothetical facts, except that I will assume the reconnaissance force changes from
civilian clothing into military uniforms prior to opening fire on the enemy
from an overwatch position.
Ferrell correctly points out in his article that an assaulting force dressed in
black jumpsuits, even if these suits bear no national or military insignia, would
not violate IHL (as long as the local population does not customarily wear such
clothing), since such dress is typically worn by special forces and since it distinguishes the assaulters as combatants.67 He likewise correctly asserts that the
reconnaissance force does not violate IHL when gathering information and intelligence for the assault in civilian clothing, since this essentially amounts to
permissible espionage under the LOAC:68 the reconnaissance force personnel
are members of an armed force; they are in territory controlled by an adverse
party; they are gathering information on the enemy; and, they are out of uniform.69 Espionage is not a violation of IHL, but individuals who engage in
espionage are not entitled to prisoner of war status, and, if captured, they are
liable to be tried for violations of domestic laws of the capturing State in which
the espionage occurred.70 Finally, Ferrell accurately notes that the reconnaissance force would be guilty of illegal perfidy if they killed or wounded any
enemy forces while providing covering fire for an attack while dressed in civilian
clothing;71 such an allegation could be clearly made out where, as in this case,
combatants perfidiously dress in civilian clothing while they are engaged in a
65
66
67
68
69
70
71
See, generally, WH Ferrell, ‘No Shirt, No Shoes, No Status: Uniforms, Distinction,
and Special Operations in International Armed Conflict’ (2003) 178 Mil L Rev 94.
ibid 94–95.
ibid 137.
ibid 138.
The reconnaissance force personnel fall outside of the exclusory scope of art 46(2) of
AP I’s definition of who is not a spy, or, stated more simply, they could properly be
categorized as spies under international law.
Dinstein (n 10) 210–11.
Ferrell (n 67) 138.
Purposive Analysis of Perfidy Prohibitions in IHL
457
firefight with enemy forces, and where there is no temporal disconnect between
their acts of perfidy and the harm that they inflict on their adversaries.
The legal analysis is altered, however, if we assume that the reconnaissance
force changes into proper military attire before opening fire on the enemy; such
a scenario might take place where a special forces team first engages in espionage (moving about a town in civilian clothing), but then changes into proper
uniforms while leaving the town for a position of overwatch in preparation for
attack, after they have finished collecting all relevant intelligence. Under such
circumstances, if a ‘but for’ causation test is applied, then it becomes evident
that the reconnaissance force does not violate IHL’s perfidy prohibitions. While
it is true that the reconnaissance force can evade detection by the enemy while
operating inside of the hostile city as a result of having dressed in civilian clothing, this fact alone cannot lead to the conclusion that harm to the enemy by the
reconnaissance force only occurs as a result of such deception. In other words, if
one accepts that a reconnaissance force or other supporting element could reasonably have been transported into an overwatch position in advance of the
assault by some means other than by resort to perfidy (by airborne insertion,
for example), then one cannot say that the reconnaissance/overwatch force
killed or injured the enemy by resort to perfidy—the perfidy and the harm to
the enemy do not share a sufficient causal connection to render the harm illegal
under IHL.
Military strategists who fear that IHL may become too restrictive upon forces
that engage in combat should be encouraged by the above analysis of perfidy
prohibitions, since, even when these laws are interpreted purposively, much
scope remains for armed forces to craft and implement legitimate tactics for
the accomplishment of their missions.72 The key consideration, as the above
example demonstrates, is whether a perfidious act directly causes death, injury
or capture of an enemy. Where such a causative link does not exist, then any acts
of perfidy will remain within the permissible boundaries of IHL. In any event,
however, some additional consideration of perfidy prohibitions might be in
order when operations such as the one described above are planned by armed
forces. As Ferrell (a United States Marine Corps lawyer) candidly acknowledged in his article, ‘the above fictional scenario is typical of a mission that
special operations forces train for, and may be called on to perform, in
today’s world-environment’,73 but as both his and my analysis show, such operations may or may not violate IHL’s perfidy prohibitions depending on very
72
73
The scope of actions that remain available to military commanders under the interpretation of perfidy prohibitions that is proposed within this article is expansive,
particularly when contrasted with the more limited scope that would remain open
to commanders if interpretations such as those advocated by Greene (a US military
lawyer) (n 32) (suggesting that all perfidy should be criminalized, regardless of
whether harm results), and Morris (n 30) (suggesting that any deceptive lighting of
warships violates IHL’s perfidy prohibitions) were to be adopted.
Ferrell (n 67) 95.
458
Mike Madden
subtle factual distinctions. Commanders would therefore be well advised to
consider the scope of these purposively interpreted perfidy prohibitions, and
the consequences to both individuals (if they are caught in hostile territory in
civilian clothing) and the State (if military personnel harm enemy forces while
dressed in civilian clothing) that might flow from an overly permissive command
attitude towards the wearing of civilian clothing by military personnel on
operations.74
7. Potentially Prohibited Practices in Naval Warfare
Leaving aside the contentious issue of a naval exception to general prohibitions
against flying false flags (discussed above at Section 2(C)), another naval practice—deceptive lighting—merits scrutiny to ascertain whether it complies with
IHL’s perfidy prohibitions. Because there has not been much academic commentary on the legality of this questionable practice, however, my analysis of
deceptive lighting will be rather comprehensive: I will consider first whether
deceptive lighting constitutes perfidy, and second, if it does constitute perfidy,
whether it is illegal.75
A. Deceptive Lighting—Generally
I adverted previously in this article to a naval practice of deceptive lighting, or of
‘changing the configuration of lights aboard a warship so that—to a casual or
distant viewer—the ship appears to be something other than it really is’.76
Different classes and sizes of ships carry different lights while at sea, and are
identifiable at night based on the characteristics of these lights. Thus, if a warship changes her normal lighting configuration, then she may be able to deceive
an enemy regarding her location, identity and intentions. Morris notes that the
practice is apparently accepted as a legitimate ruse of war by the US Navy,77 and
the practice is equally encouraged within Canada’s naval training scheme. For
instance, the Canadian Forces Maritime Command Combat Readiness/Training
Requirements publication requires ships to implement a deceptive lighting
plan in order to accomplish Combat Readiness Requirement 6R03 (Advanced
74
75
76
77
For more in-depth discussion relating to the use of non-standard uniforms by military
forces, see W Hays Parks, ‘Special Forces Wear of Non-Standard Uniforms’ (2003) 4
Chi J Intl L 493; see also M McAndrews, ‘Wrangling in the Shadows: The Use of
United States Special Forces in Covert Military Operations in the War on Terror’
(2006) 29 BC Intl & Comp L Rev 153.
For a more focused discussion on the legality of deceptive lighting under different
circumstances, see M Madden, ‘Naval Chameleons: Re-Evaluating the Legality of
Deceptive Lighting Under International Humanitarian Law’ (2011) 6 Cdn Naval
Rev 4.
Morris (n 30) 236.
ibid.
Purposive Analysis of Perfidy Prohibitions in IHL
459
Anti-Surface Warfare Exercise) and Combat Training Requirement 7T11
(Under Water Warfare Signature Reduction).78
In his article specifically assessing the legality of deceptive lighting practices,
Morris concludes that ‘under even the most minimalist reading of Additional
Protocol I the use of deceptive lighting to engage in an attack is a prohibited act
of perfidy’,79 because the practice, ‘instead of simply confusing or misleading the
enemy, invites the enemy to think that the combatant enjoys some sort of protected status with regards to international humanitarian law’.80 With respect,
I am of the opinion that Morris’ conclusion is incorrect in many circumstances,
as it fails to distinguish between different kinds of deceptive lighting practices—
some of which do not amount to perfidy.
B. Understanding When Deceptive Lighting Constitutes Perfidy
The first issue that must be resolved when determining the legality of deceptive
lighting is whether deceptive lighting constitutes perfidy. Recall that perfidy is
defined as ‘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’.81 In other words, a deceptive lighting measure will amount to perfidy
only if it causes the enemy to believe that the deceiving vessel is not a targetable
combatant—that is, that the vessel is protected under IHL.
The interesting feature of a vessel’s lights at sea, however, is that they only
reveal certain limited pieces of information about the vessel: if a vessel is lit
properly in accordance with COLREGs, then the vessel’s lights can give some
indication of size (in the case of power-driven vessels of more than 50 metres
length), aspect (port/starboard side, bow/stern), rate of turn (based on the speed
at which a red sidelight disappears and a green one appears, for instance) and
nature of the vessel (engaged in fishing, sailing, etc). However, none of these
pieces of information, alone, can clearly distinguish a vessel as a combatant, and
thus as a non-protected target for a belligerent force.
Under almost all contemporary circumstances, however, certain lighting configurations should signify that a vessel is a non-combatant. For instance, a vessel
‘engaged in fishing’82 will, for all practical purposes, always be a non-combatant
78
79
80
81
82
CFCD 102(K) Maritime Command Combat Readiness / Training Requirements (Chief
of the Maritime Staff 2009) 246, 272.
Morris (n 30) 257.
ibid.
AP I (n 11) art 37(1).
It should be noted that there is an important difference between a vessel ‘engaged in
fishing’ as defined at Rule 3(d) of Convention on the International Regulations for
Preventing Collisions at Sea (opened for signature 20 October 1972, entered into force
15 July 1977), 1050 UNTS 16 (COLREGs) (‘the term “vessel engaged in fishing”
means any vessel fishing with nets, lines, trawls or other fishing apparatus which restrict manoeuvrability, but does not include a vessel fishing with trolling lines or other
460
Mike Madden
vessel, since no warship operating under any kind of normal circumstances
would engage in fishing so as to hamper her manoeuvrability. Similarly, a sailing
vessel could equally be thought of as always having non-combatant status,
since naval forces no longer employ sailing vessels for combat purposes.83
Consequently, any vessels displaying the lights of a sailing vessel or a vessel
engaged in fishing should be thought of, prima facie, as being protected
non-combatants under IHL. I appreciate that, with some creativity, one could
imagine a scenario in which a navy’s supply chain has been destroyed to the
extent that its warships are forced to engage in fishing for sustenance, or wherein
a coastal State acquires (and arms) sailing vessels for the purposes of defending
its littoral waters, but I think that these scenarios fall well outside of reasonably
foreseeable courses of action for any navy now in existence, so military legal
advisors would probably be prudent to recognize (at least) an initial presumption
regarding the protected status of sailing vessels and vessels engaged in fishing.
Given that some lighting configurations obviously signal that a vessel is a
non-combatant (and is therefore protected under IHL), it becomes possible to
discern between perfidious and non-perfidious deceptive lighting. For instance, a
warship that rigs and displays lights indicating that she is a vessel engaged in
fishing would satisfy all the elements of the definition of perfidy: the deceiving
vessel would invite the confidence of the enemy by leading him to believe he is
obliged to accord the deceiving vessel (as a purported ‘vessel engaged in fishing’)
protection under IHL, with the intent to betray that confidence (by not actually
being engaged in fishing). However, a large warship that typically only wears one
masthead light but that rigs a temporary, makeshift second masthead light aft of
and higher than her forward masthead light, while perhaps deceiving the enemy
as to her identity, would not be engaged in perfidy, since she would not be
suggesting to the enemy that she is entitled to protection under IHL. Rather,
such a warship would simply be complying (possibly in spite of an exemption for
warships) with the requirements of COLREGs regarding lights for power-driven
vessels of her size. In other words, a warship that alters her lighting configuration
to deceive the enemy regarding her identity, but not her status as a power-driven
vessel (that may or may not be a combatant), does not engage in perfidy, since
such ruses do not cause the enemy to believe that the deceiving vessel is protected under IHL—they merely make the enemy’s task of identifying combatants from within the class of power-driven vessels more difficult.
A similar example of non-perfidious deceptive lighting could include lighting
two warships in a manner that suggests the lead vessel is towing the follow-on
83
fishing apparatus which do not restrict manoeuvrability’), and a simple ‘fishing vessel’
(as one might use the term in common parlance). The latter type of vessel, while
perhaps designed for fishing, would not be entitled to display special lights under
COLREGs r 26(c) except when actually ‘engaged in fishing’, and would display
lights for a power-driven vessel under other normal circumstances.
I recognize that some navies, including the Canadian Navy, use sailing ships as navigation and seamanship training vessels for their officer cadres. It would be difficult to
conceive of these vessels, however, as having any useful combat functions.
Purposive Analysis of Perfidy Prohibitions in IHL
461
vessel:84 on the one hand, this lighting arrangement would typically be seen
where tugs are found towing other ships into port or to shipyards. On the
other hand, however, it is not uncommon for warships to train for and to
engage in towing other disabled warships. Thus, it might confuse the enemy to
rig warship lights in a tug-and-tow configuration, but regardless of whether the
warships are actually connected in that relationship, such a lighting arrangement
would not suggest to the enemy that the vessels are necessarily non-combatants
entitled to protection under IHL. Likewise, a warship could deceptively light
herself to indicate that she is ‘restricted in her ability to manoeuver’85 (RAM).
Such a lighting arrangement could indicate that the warship is a vessel servicing a
navigation mark86 (which would suggest a civilian, non-combatant vessel), but it
could equally indicate that the warship is launching or recovering an aircraft.87
Since many warships frequently land or launch helicopters, a warship would not
be engaging in perfidy if it displayed RAM lights: again, regardless of whether
such a warship were RAM or not, she would not be necessarily taking herself out
of the class of possible combatants by displaying RAM lights.
As the preceding discussion demonstrates, it would be inaccurate to simply
state, as Morris has stated, that ‘the use of deceptive lighting to engage in an
attack is a prohibited act of perfidy’.88 Some forms of deceptive lighting, when
they cause an enemy to refrain from attacking due to a belief that the deceiving
warship is protected under IHL, are perfidious. Other forms of deceptive lighting, when they do not make the ostensible claim that the deceiving warship is a
non-combatant vessel, are simply ruses that do not rise to a level of perfidy.
To state the matter more simply, if a warship lights itself in a way that suggests
that it is, by its very nature or by its conduct, something that could never reasonably be a combatant, then the warship has engaged in perfidy. However, if a
warship lights itself in a manner that is deceptive, but that nonetheless admits of
a reasonable possibility that the vessel is a combatant, then the deception
amounts merely to a ruse, rather than perfidy.
C. Understanding When Perfidious Deceptive Lighting Violates IHL
As the preceding section indicates, it would be perfidious for a warship to deceptively light herself as a vessel engaged in fishing. If, however, a warship
rigged such a lighting arrangement in order to pass through a hostile choke
point while attempting to permanently disengage from the relevant armed conflict, then clearly the perfidy would be permissible, since, as a purely defensive
84
85
86
87
88
See COLREGs (n 84) r 24 (for a description of the lighting requirements for towing
and towed vessels).
ibid r 27(b).
ibid r 3(g)(i).
ibid r 3(g)(iv).
Morris (n 30) 257.
462
Mike Madden
act, the perfidious deceptive lighting would not result in the death, injury or
capture of enemy forces.
A more complicated situation would arise if a warship transited through a
hostile choke point while deceptively lit as a vessel engaged in fishing, only to
attack enemy forces once clear of the choke point and after having ceased deceptive measures. In this scenario, if the ‘but for’ test for causation of harm is
applied to evaluate the perfidy, it is likely that the deceiving warship would have
committed illegal perfidy, since the warship would only have arrived in her
attack position by virtue of her perfidious conduct. In other words, if the warship
was only able to launch the attack by perfidiously repositioning herself on the
other side of a hostile choke point, then the perfidious deceptive lighting that
facilitated her transit through the choke point would constitute illegal perfidy.
If, however, a warship perfidiously transited a hostile choke point merely as a
matter of convenience or expediency, and later engaged in an attack on enemy
forces, then the legal result of her conduct may be entirely different. Essentially,
one must ask whether the harm could reasonably have been inflicted on the
enemy by some means other than by resort to perfidy. If this question is answered in the affirmative, then clearly the alleged perfidy did not cause the
subsequent harm to enemy forces, and it is therefore permissible. Alternately,
if the harm could only reasonably have been inflicted by resort to perfidy, then a
sufficient causative link between the perfidy and the harm exists so as to render
the perfidy illegal.
As the above hypothetical scenarios suggest, any assessment of perfidious
conduct must carefully consider the facts surrounding the alleged conduct in
order to determine whether a causative link between perfidy and harm is present
in a particular instance—even a purposive interpretation of IHL’s perfidy prohibitions cannot eliminate the need for careful factual analysis of military actions in order to ensure their compliance with the law, since subtle differences in
facts regarding the timing or methods of an attack can drastically alter the legality of any attacks. However, the purposive, causative approach to interpreting
IHL’s perfidy prohibitions that is proposed within this article at least offers
armed forces, military legal advisors and IHL jurists a starting point for judging
belligerent conduct in armed conflicts. It imbues the phrase ‘by resort to perfidy’
with a meaning that has some substance, and that can be applied to factual
scenarios such as those discussed within this article.
8. Conclusion
It might seem simplistic to introduce a sophisticated legal discussion by reference to a fable involving wolves and sheep. The story of the wolf in sheep’s
clothing, however, has tremendous relevance for States and participants in
armed conflicts: deception is a valuable tool for military commanders, but it
must be used selectively in order to comply with the LOAC. As the preceding
discussion has likely made clear, military practices that flirt near the line dividing
Purposive Analysis of Perfidy Prohibitions in IHL
463
permissible ruses of war from illegal perfidy are both politically and militarily
unsound. Such borderline practices weaken the protections that IHL seeks to
afford to non-combatants, and they undermine overall State war efforts.
Thus, while belligerent forces may not be able to change their aggressive and
dangerous natures as ‘wolves’ in armed conflicts, they can nonetheless avoid the
fate of the fabled wolf—that is, they can avoid coming to harm as a result of
their own treachery—by considering and applying IHL’s perfidy prohibitions in
a purposive manner. An armed force must assess the legality of any planned
perfidy by asking whether subsequent harm to the enemy would be achievable
‘but for’ the perfidy. If aggressive military gains are not otherwise achievable,
then belligerents must refrain from engaging in perfidy, and must recognize that
any resort to illegal perfidy contrary to IHL will likely result in significant
long-term setbacks for the force. So says the wisdom of the ancients.