Perfidy

In the context of war, perfidy is a form of deception in which one side promises to act in good faith (e.g., by raising a flag of surrender) with the intention of breaking that promise once the enemy has exposed themselves (e.g., by coming out of cover in order to capture or kill the enemy). Perfidy constitutes a breach of the laws of war and thus making it a war crime as it 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 international law to gain a military advantage.

Perfidy is specifically prohibited under the 1977 Protocol I Additional to the Geneva Conventions of 12 August 1949, which states:

"Article 37. – Prohibition of perfidy 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. 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. 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.

Article 38. – Recognized emblems 1. It is prohibited to make improper use of the distinctive emblem of the red cross, red crescent or red lion and sun or of other emblems, signs or signals provided for by the Conventions or by this Protocol. It is also prohibited to misuse deliberately in an armed conflict other internationally recognized protective emblems, signs or signals, including the flag of truce, and the protective emblem of cultural property. 2. It is prohibited to make use of the distinctive emblem of the United Nations, except as authorized by that Organization.

Article 39. – Emblems of nationality 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."

Perfidy was part of the customary laws of war long before the prohibition of perfidy was included in Protocol I. For example, in the 1907 Hague Convention IV - The Laws and Customs of War on Land, Article 23 includes: "In addition to the prohibitions provided by special Conventions, it is especially forbidden....(b) To kill or wound treacherously individuals belonging to the hostile nation or army;....(f) To make improper use of a flag of truce, of the national flag, or of the military insignia and military uniform of the enemy, as well as the distinctive badges of the Geneva Convention;...."

During the Pacific Theatre of World War II, Japanese soldiers often booby-trapped their dead and wounded and/or faked surrenders or injuries to lure American troops into a trap then surprise attack them. One example of this was the "Goettge Patrol" during the early days of the Guadalcanal Campaign in 1942 in which a fake Japanese surrender resulted in more than 20 American dead. This incident, along with many other perfidious actions of the Japanese throughout the Pacific War, led to an American tendency to shoot the dead or wounded Japanese soldiers and those who were attempting to surrender and not take them as POWs easily.

At the Dachau Trials, the issue of whether the donning of enemy uniforms in order to approach the enemy without drawing fire was within the laws of war was established under international humanitarian law at the trial in 1947 of the planner and commander of Operation Greif, Otto Skorzeny. Skorzeny was found not guilty by an American military tribunal of a crime by ordering his men into action in American uniforms. He had passed on to his men the warning of German legal experts, that if they fought in American uniforms, they would be breaking the laws of war, but they probably were not doing so just by wearing American uniforms. During the trial, a number of arguments were advanced to substantiate this position and that the German and U.S. military seem to be in agreement on it. In its judgement, the tribunal noted that the case did not require that the tribunal make findings other than those of guilty or not guilty, so consequently, no safe conclusion could be drawn from the acquittal of all accused.