It is prohibited to kill or injure 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 the law of international armed conflict, with the intent to betray that confidence, constitute perfidy.
This Rule is derived from Art. 37 (1) of AP/I.[614] See also Para. 12.1.2 of NWP.[615]
Betrayal of confidence is the nucleus of perfidy. In the past, perfidy used to be called “treachery” (see Art. 23 (b) of the 1907 Hague Regulations).[616] In introducing and defining the term perfidy, Art. 37 (1) of AP/I denotes the same concept.
Not all perfidious action (i.e., acts involving a betrayal of confidence) is prohibited. The prohibition in Art. 37 (1) of AP/I covers only those instances in which the adversary, through perfidy, is killed, injured or captured.
Art. 8 (2) (b) (xi) of the Rome Statute of the ICC declares the following to be a war crime in international armed conflicts: “[k]illing or wounding treacherously individuals belonging to the hostile nation or army”. Art. 8 (2) (e) (ix) of the Rome Statute declares the following to be a war crime in a non-international armed conflict: “[k]illing or wounding treacherously a combatant adversary”.
The Group of Experts was divided on the question whether, as a matter of customary international law, the prohibition includes “capture” by perfidy. The majority of the Group of Experts reached the conclusion that perfidious capture is not an integral part of customary international law. It is not included in the 1907 Hague Regulations, which only prohibits (Art. 23 (b)) “to kill or wound treacherously”. A prohibition against capture by perfidy is also not recognized by several States. On the other hand, perfidious killing or injuring is undeniably considered customary international law.
The minority of the Group of Experts relied on the ICRC Customary IHL Study, which reaches the conclusion that capture is included in the customary prohibition.[617] According to this view, the omission of capture from the Rome Statute of the ICC affects the definition of the war crime, but not the scope of the substantive rule of the law of international armed conflict.
All members of the Group of Experts agreed that unlawful perfidious action does not go beyond killing, injuring (or capturing). A clear example of perfidious action which is not prohibited as “perfidy” under customary international law or under AP/I, is the destruction of property (which does not entail killing or injuring of — or even capturing — an adversary).
A typical example of perfidy would be to open fire upon an unsuspecting enemy after having displayed the flag of truce, thereby inducing the enemy to lower his guard.
It is useful to analyze a scenario in which an ambulance is used by combatants to move from one point to another. This abuse of the ambulance is perfidious, but it does not fall under the prohibition of perfidy according to customary international law or AP/I, unless the combatants — availing themselves of the protective status of the ambulance — do so in order to kill, injure (or capture) the enemy by advancing surreptitiously against enemy forces. Nevertheless, in view of Rule 112 (a), the activity will be still be prohibited because of the improper use of the distinctive emblem.
Prohibited perfidy must not be confused with espionage. The essence of prohibited perfidy is the killing or injuring (or capturing) of a person. By contrast, espionage focuses on the clandestine gathering certain useful information of military value, and it does not pertain to killing or injuring (or capturing) of a person. For a definition of espionage, see Rule 118.
Rule 111 (a) applies also in non-international armed conflict (see also Art. 8 (2) (e) (ix) of the Rome Statute of the ICC).[618]
Art. 37 (1) of AP/I: “(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.”
Para. 12.1.2 of NWP (“Prohibited deceptions”): “The use of unlawful deceptions is called “perfidy”. Acts of perfidy are deceptions designed to invite the confidence of the enemy to lead him to believe that he is entitled to, or is obliged to accord, protected status under the law of armed conflict, with the intent to betray that confidence. Feigning surrender in order to lure the enemy into a trap is one example of an act of perfidy.”
Art. 23 of the 1907 Hague Regulations: “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.”
Rule 65 of the ICRC Customary IHL Study, with discussion at pages 221–226: “Killing, injuring or capturing an adversary by resort to perfidy is prohibited.” (underlining added), with at page 225: “On the basis of this practice, it can be argued that killing, injuring or capturing by resort to perfidy is illegal under customary international law but that only acts that result in serious bodily injury, namely killing or injuring, would constitute a war crime. This argument is also based on the consideration that the capture of an adversary by resort to perfidy nevertheless undermines a protection provided under international humanitarian law even though the consequences may not be grave enough for it to constitute a war crime.”
This Rule is derived from Art. 37 (1) (a) − (d) of AP/I.[619]
Rule 111 (b) illustrates the prohibition of perfidy defined in Rule 111 (a) without exhausting the scope of the prohibition.
Combatants are obliged to accord protection to civilian, neutral or other protected persons. Feigning such privileged status would therefore be liable to lead a combatant to believe that he is obliged to accord protection. If such an act — which invites the confidence of the enemy — is committed with intent to betray that confidence, the conduct is perfidious. Still, not every perfidious act is unlawful. A perfidious act is prohibited only when it entails killing, injuring (or capturing) an adversary.
The mere fact that a person is fighting in civilian clothing does not constitute perfidy, although the person may thus become an “unprivileged belligerent” (the term “unlawful combatant” is also used, see paragraph 4 of the Commentary on Rule 10 (b) (i); see also the Commentary on Rule 117). “Unprivileged belligerents” do not enjoy combatant privilege and can be prosecuted and punished under the domestic law of the enemy for mere participation in hostilities. As opposed to unlawful perfidy, “unprivileged belligerency” is not in itself a war crime. For unlawful perfidy, there must always be an intention to betray confidence, as in the case of a person who advances to an advantageous position under the cover of being a civilian in order to fire on, and kill or injure, an unsuspecting enemy.
“Other protected status” (in addition to civilian and neutral status) includes inter alia UN personnel.
The applicability of Rule 111 (b) to non-international armed conflicts is multi-layered. Neutrality in the legal sense does not exist in non-international armed conflict. Neither do distinctions between combatant, “unprivileged belligerent” and civilian status, at least not on the side of the non-State organized armed group. It is still, however, prohibited to kill, injure (or capture) an enemy after having intentionally misled him by pretending to be a civilian (who is protected by Common Art. 3[620] of the 1949 Geneva Conventions against acts of violence while not participating actively in the hostilities).
Improper use of the distinctive emblem of the Red Cross, Red Crescent or Red Crystal, or of other protective emblems, signs or signals provided for by the law of international armed conflict.
Whereas Rule 111 hinges on the perfidious nature of the acts set forth in it, Rule 112 includes absolute prohibitions of certain activities at all times.
Special rules apply in the case of naval warfare, see paragraph 3 of the Commentary on Rule 112 (c).
The prohibition of perfidy does not cover the whole spectrum of unlawful acts linked to deception. There are specific prohibitions of “improper” conduct, which is prohibited per se, irrespective of whether or not the acts concerned constitute prohibited perfidy. Moreover, prohibitions of “improper conduct” do not require proof of any specific intent to betray the confidence of the enemy. For an example of the interplay between perfidy and “improper” conduct, see the ambulance scenario given in paragraph 9 of the Commentary on Rule 111 (a).
An example of “improper use” referred to in Rule 112 (a) would be transportation of munitions in an aircraft bearing the distinctive emblem of the Red Cross.
Other protective emblems will include inter alia the protective sign indicating cultural property (see Rule 94), the protective sign for civil defence (see Rule 91), and the sign for works and installations containing dangerous forces (see paragraph 5 of the Commentary on Rule 44).
The prohibition of improper use of protective emblems, signs or signals applies regardless of whether the Belligerent Party is a Contracting Party to the particular treaty that has established the emblem, sign or signal in question.
The Rome Statute of the ICC makes “improper use … of the distinctive emblems of the Geneva Conventions” punishable when “resulting in death or serious personal injury” (see Art. 8 (2) (b) (vii) of the Rome Statute of the ICC).[623]
Rule 112 (a) applies also in non-international armed conflict.
Art. 38 (1) of AP/I: “(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.” See also Para. 8.5.1.6. of NWP (“Permitted use”): “Protective signs and symbols may be used only to identify personnel, objects, and activities entitled to the protected status that they designate. Any other use is forbidden by international law.”
Art. 23 (f) of the 1907 Hague Regulations: “In addition to the prohibitions provided by special Conventions, it is especially forbidden: … (f) 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”.
Traditionally, the flag of truce is a white flag.[626]
Naturally, aircraft in flight cannot hoist the flag of truce. However, the flag of truce may be improperly used by combatants on the ground who have no intention of negotiating a truce. These can be ground forces seeking to protect themselves from air attacks, or aircrews who are engaged in combat on the ground. It is therefore important to emphasize that any improper use of the flag of truce is prohibited at all times (irrespective of any intent to kill, injure (or capture) an adversary).
The Rome Statute of the ICC makes ”improper use … of a flag of truce” punishable in international armed conflict when “resulting in death or serious personal injury”.[627]
Rule 112 (b) also applies in non-international armed conflict.
Art. 32 of the 1907 Hague Regulations (“Flags of truce”): “A person is regarded as a parlementaire who has been authorized by one of the belligerents to enter into communication with the other, and who advances bearing a white flag. He has a right to inviolability, as well as the trumpeter, bugler or drummer, the flag-bearer and interpreter who may accompany him.”
Art. 8 (2) (b) (vii) of the Rome Statute of the ICC, declaring the following to be a war crime: “Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury.”
This Rule is based on Art. 23 (f) of the 1907 Hague Regulations,[628] in which there is a prohibition against “improper use of … the military insignia and uniform of the enemy”. See also Art. 39 (2) of AP/I.[629] See also Para. 12.5.3 of NWP.[630]
The prohibition on the use of enemy uniforms pertains only to “improper use”. When such use is not “improper”, it would be legal. One example will be the use of overcoats from captured enemy warehouses in order to protect against the weather (provided that all enemy insignia are removed therefrom). This is also true of a POW who attempts to escape, wearing the uniform of the enemy.[631]
AP/I contains an exception with regard to the existing generally recognized rules of international law applicable to espionage or to the use of flags during naval warfare.[632] With regard to espionage (see Section R), the exception relates to Rule 122 whereby a member of the armed forces of a Belligerent Party — having been engaged in espionage — rejoins his own forces but is subsequently captured by the enemy, he may no longer be prosecuted for his previous acts. This applies even if he has used a false uniform during his clandestine actions. With regard to the law of naval warfare, it is accepted — or at least tolerated — that a warship displays the enemy flag (or a neutral flag), as long as it displays its true colours prior to an actual armed engagement.[633] This exception does not apply in air warfare.
Opinions among the members of the Group of Experts were divided as to whether the qualifying words appearing in Art. 39 (2) of AP/I — “while engaging in attacks or in order to shield, favour, protected or impede military operations” — fully reflect customary international law. Some members of the Group of Experts took the position that any use of enemy uniform for deception purposes, even before or after an attack, is improper.
The Rome Statute of the ICC makes ”improper use … of the flag or of the military insignia and uniform of the enemy” punishable when resulting in death or serious personal injury.[634]
The term “military emblem”, as referred to in Rule 112 (c) includes markings of military aircraft (see Rule 1 (x)). The use of “military emblems” of the enemy by a Belligerent Party is “improper” under Rule 112 (c), whether the enemy markings are painted on a military aircraft or on any other type of aircraft.
Rule 112 (c) applies also to non-international armed conflict.
Art. 39 (2) of AP/I: “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.”
Para. 12.5.3 of NWP: “The law of land warfare does not prohibit the use by belligerent land forces of enemy flags, insignia, or uniforms to deceive the enemy either before or following an armed engagement. Once an armed engagement begins, a belligerent is prohibited from deceiving an enemy by wearing an enemy uniform, or using enemy flags and insignia; combatants risk severe punishment if they are captured while displaying enemy colors or insignia or wearing enemy uniforms in combat.”
Para. 1576 of the ICRC Commentary on AP/I, pertaining to Art. 39 of AP/I: “A prisoner of war who escapes may be inclined to put on the uniform of the enemy in order to conceal, facilitate or protect his escape and hinder the search for him. If he is caught before successfully completing his escape, he will be liable to disciplinary punishment (Third Convention, Art. 93, paragraph 2). If he is captured again after successfully escaping, he is not liable to any punishment (Third Convention, Art. 91, paragraph 2). Under the provisions of the Hague Regulations, there is no doubt whatsoever that wearing an enemy uniform is not prohibited in this case.”
See Art. 39 (3) of AP/I: “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.”
Para. 12.5.1 of NWP (“Enemy Flags, Insignia, and Uniforms — At Sea”): “Naval surface and subsurface forces may fly enemy colors and display enemy markings to deceive the enemy. Warships must, however, display their true colors prior to an actual armed engagement.”
Para. 856 (4) of the Canadian Joint Doctrine Manual: “Certain types of ruses are not permitted. Warships and auxiliary vessels are prohibited from opening fire while flying a false flag. They may, however, display the enemy flag or a neutral flag during pursuit. Such conduct at sea is accepted or at least tolerated, whether the ship in question is pursuing an enemy ship or is trying to escape from it.”
This Rule is based on Art. 39 (1) of AP/I.[635] See also Para. 12.3.2. of NWP.[636]
Rule 112 (d) — unlike Rule 112 (c) — refers not to “improper use” but to “use”. The reason is that any use of flags, military emblems, insignia or uniforms of Neutrals (except under conditions of naval warfare, as explained in paragraph 3 of the Commentary on Rule 112 (c)) is unlawful. See also paragraph 5 of the Commentary on Rule 114 (c).
Rule 112 (d) does not apply in non-international armed conflict, since there is no neutrality in the legal sense. However, any use of the flags, military emblems, insignia or uniforms of a foreign State not taking part in the hostilities will be regarded as improper.
Art 39 (1) of AP/I: “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.”
Para. 12.3.2 of NWP (“Neutral flags, insignia and uniforms — In the Air”): “Use in combat of false or deceptive markings to disguise belligerent military aircraft as being of neutral nationality is prohibited.”
This Rule is based on Art. 38 (2) of AP/I.[637] See also Para. 12.4 of NWP.[638]
The UN flag is not a protective emblem on the same line as the distinctive emblems of the Red Cross, Red Crescent or Red Crystal but indicates a connection with the UN, in the same way as the flag of a Neutral indicates nationality. When the UN is present in a conflict area in a purely peacekeeping, humanitarian or other impartial function, the UN flag has a protective function. The UN personnel must then be respected and protected as long as they are entitled to the protection given to civilians (see Rule 98).
Even when the UN is engaged in an armed conflict as a Party thereto, so that its position is analogous to that of a Belligerent Party, and its personnel is not entitled to the protection of civilians, there must be no improper use of the distinctive emblem of the UN. Such unauthorized use would be similar to the improper use of the military emblems or uniforms of the enemy, prohibited in Rule 112 (c).
The Rome Statute of the ICC makes ”improper use … of the flag … of the United Nations” punishable when resulting in death or serious personal injury.[639]
Rule 112 (e) applies also in non-international armed conflict.
Art. 38 (2) of AP/I: “It is prohibited to make use of the distinctive emblem of the United Nations, except as authorized by that Organization.”
Para. 12.4 of NWP (“The United Nations Flag and Emblem”): “The flag of the United Nations and the letters ”UN” may not be used in armed conflict for any purpose without the authorization of the United Nations.”
Ruses of war are permitted. Such ruses are acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no Rule of the law of international armed conflict and which do not meet the definition of perfidy in Rule 111 (a).
Belligerent Parties are entitled, under the law of international armed conflict, to make use of any ruses of war they may wish to avail themselves of, as long as the acts do not infringe any rule of that law and do not constitute prohibited perfidy.
Ruses of war may result in the death of an adversary. This is not prohibited per se as long as such ruses of war do not amount to prohibited perfidy (see Rule 111 (a)) insofar as they do not include the element of betrayal of confidence. In particular, there must be no improper use of civilian, neutral, enemy or other protected status (See Rule 112).
Specific examples of lawful ruses of war in air or missile warfare are given in Rule 116 on an illustrative basis.
Rule 113 applies also in non-international armed conflict.
Art. 24 of the 1907 Hague Regulations: ”Ruses of war and the employment of measures necessary for obtaining information about the enemy and the country are considered permissible.”
Art. 37 (2) of AP/I: “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 the law. The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation.”
The feigning of the status of a protected medical aircraft, in particular by the use of the distinctive emblem or other means of identification reserved for medical aircraft.
This Rule highlights acts of perfidy which are particularly apposite to air or missile combat operations. The use of the term “perfidy” is based on the general definition in Rule 111 (a). The main constituent element of perfidy is the intent to betray the confidence of the enemy. Perfidious acts by themselves are not unlawful. Perfidy is only prohibited when linked to the act of killing, injuring (or capturing) an adversary.
The acts listed Rule 114 (a)–(e) are merely examples of perfidy. In other words, the list is not exhaustive.
Conduct covered by Rule 114 (a) only constitutes prohibited perfidy when used as a means to kill or injure (or capture) an adversary.
There are various ways of feigning the status of a medical aircraft (see Section L, in particular Rule 76). One way is when deliberate use is made of signals that, by multilateral treaty — or by a bilateral agreement with the enemy — are reserved for medical aircraft (see Rule 76 (a) or (b)). When an aircraft other than a medical aircraft follows an air route or an air corridor agreed upon between the Belligerent Parties for the exclusive use of medical aircraft, this could also amount to the feigning of the status of a medical aircraft.
Signals, such as blue flashing lights, are in many States used by police or firefighting services, and could in certain circumstances lead to confusion with medical aircraft. This does not amount to perfidy as long as there is no intent to betray the confidence of the enemy by feigning the status of a medical aircraft.
Rule 114 (a) applies also in non-international armed conflict.
This Rule is based on Art. 37 (1) (c) of AP/I.[642] See also Para. 109 of the SRM/ACS.[643]
Conduct covered by Rule 114 (b) constitutes prohibited perfidy only when used as a means to kill or injure (or capture) an adversary.
It is perfidious for a military aircraft to feign the status of a civilian aircraft. This could, for instance, occur if that military aircraft uses a transponder that on interrogation gives a response indicating that it is a civilian aircraft.
Feigning of civilian status by painting civilian markings on a military aircraft has a superficial similarity to a combatant feigning civilian status by wearing civilian clothing. There is, however, a big difference in that changing the markings on a military aircraft requires a lot more effort and will necessarily be a deliberate act, while soldiers may appear to be in civilian clothing as a result of wear and tear in uniforms, inadequate supplies, etc.
Some air forces employ low-visibility markings for military aircraft, with national colours replaced by a black or grey outline indicating the national marking. This is done for camouflage purposes. Although recourse to such a system of marking will make it more difficult to ascertain the nationality and the military status of the aircraft by visible means, it is not considered feigning of the status of a civilian aircraft. (see paragraph 11 of the Commentary on Rule 1 (x) as well as the Commentary on Rule 116 (e)).
If markings are erased altogether from military aircraft, they are no longer entitled to engage in attacks — or to exercise any other belligerent rights, such as interception (see Rule 17) — in view of the fact that the aircraft no longer meet the definitional requirements of military aircraft (see Rule 1 (x)).
UCAVs feigning the status of civilian UAVs to conduct an attack are acting perfidiously, and the act will be unlawful if it results in killing or injuring (or capturing) an adversary.
UAVs used by the military but feigning civilian status, although used mainly for intelligence gathering purposes, will be deemed to be acting perfidiously if they are used in close conjunction with attacking military units in order to identify a target, designate it, monitor the engagement, or assess the results in order to determine whether a re-attack is necessary. In all such cases, the UAV can be regarded as part of the attacking force.
In non-international armed conflicts, aircraft used by non-State organized armed groups cannot qualify as military aircraft (see paragraph 8 of the Commentary on Rule 1 (x)). Thus, they are technically civilian aircraft. However, if measures are intentionally taken to convince the enemy that they are exclusively dedicated to innocent civilian purposes, an attack by such aircraft will constitute perfidious action and be unlawful if resulting in the killing or injuring (or capturing) of an adversary.
Para. 109 of the SRM/ACS: “Military and auxiliary aircraft are prohibited at all times from feigning exempt, civilian or neutral status.”
The prohibition is based on Art. 37 (1) (d) of AP/I.[644] See also Para. 12.3.2 of NWP[645] and Para. 109 of the SRM/ACS.[646]
Conduct covered by Rule 114 (c) constitutes prohibited perfidy only when used as a means to kill or injure (or capture) an adversary.
The core of the prohibition is feigning the status of neutral aircraft by painting the markings of a Neutral on the aircraft of a Belligerent Party.
Feigning of the status of a neutral aircraft could also be done by employing false electronic signals or deceptive radio transmissions.
On the face of it, there is no difference between the feigning of the status of a neutral aircraft and the use of neutral military emblems (see Rule 112 (d)). In actuality, however, there is a difference. Perfidy goes beyond mere use, entailing betrayal of the adversary’s confidence.
Neutrality in the legal sense does not exist in non-international armed conflict. However, it would be perfidious to feign the status of an aircraft from a foreign State not taking part in the hostilities.
Another protected status could be that of an aircraft granted safe conduct (such as cartel aircraft, see Section J (II) and Section J (III)), UN,[647] ICRC, etc.
Conduct covered by Rule 114 (d) constitutes prohibited perfidy only when used as a means to kill or injure (or capture) an adversary.
Rule 114 (d) applies also in non-international armed conflict.
Second sentence of Para. 111 of SRM/ACS: “Perfidious acts include the launching of an attack while feigning: (a) exempt, civilian, neutral or protected United Nations status; (b) surrender or distress by, e.g., sending a distress signal or by the crew taking to life rafts.”
Aircrews of a military aircraft wishing to surrender may communicate their intention on a common radio channel such as a distress frequency (see Rule 128). Falsely communicating such intention can amount to perfidious conduct.
In view of the fact that signals such as rocking the aircraft’s wings or lowering the landing gear are not conclusive evidence of an intent to surrender (see paragraph 3 of the Commentary on Rule 128), it is not clear whether the misuse of such signals constitutes perfidy.
Conduct covered by Rule 114 (e) constitutes prohibited perfidy only when used as a means to kill or injure (or capture) an adversary.
Rule 114 (e) applies also in non-international armed conflict.
Improper use means any use of distress codes, signals or frequencies (as prescribed by a competent international authority) for other than normal purposes.
Improper use of distress signals is in breach of the provisions regulating the use of such signals (see Art. 10 of the 1923 Hague Rules for the Control of Radio Wireless Telegraphy in Time of War).[651] Distress signals must be reserved for their humanitarian purposes.
The improper use by aircraft of distress codes must be clearly distinguished from situations in which the aircraft feigns distress through other means. For example, an aircraft may simulate distress by maneuvering in a way that suggests that it has been damaged in order to induce the enemy to discontinue an attack or to gain some other military advantage. As for surrender, see Section S.
However, if an aircraft simulates a situation of distress in order to create the false impression that airborne troops descending from it are parachutists from an aircraft in distress (see Section T), this could amount to prohibited perfidy if it leads to killing, injuring (or capturing) an adversary.
IFF codes are not distress codes. The false use of the enemy’s IFF Codes is not prohibited (see Rule 116 (c)).
Rule 115 (a) applies also in non-international armed conflict.
Art. 10 of the 1923 Hague Rules for the Control of Radio in Time of War: “The perversion of radio distress signals and distress messages prescribed by international conventions to other than their normal and legitimate purposes constitutes a violation of the laws of war and renders the perpetrator personally responsible under international law.”
Under Rule 17 (a), only military aircraft are entitled to engage in attacks. The present Rule refers to the use of an aircraft, other than a military aircraft, as a “means of attack”.
Using a manned aircraft as a weapon, would usually mean a suicide mission. Whereas suicide attacks by military aircraft are not unlawful per se, a suicide attack carried out by an aircraft other than a military aircraft (in particular a hijacked civilian airliner with passengers on board) would be unlawful.
On September 11, 2001, terrorists attacked the World Trade Center in New York and other targets using hijacked civilian airliners as weapons. Using as a means of attack a civilian aircraft (or any other protected aircraft) is in breach of the law of international armed conflict.
Rule 115 (b) does not apply to non-international armed conflict (see paragraph 7 of the Commentary on Rule 17).
(c) False military codes and false electronic, optical or acoustic means to deceive the enemy (provided that they do not consist of distress signals, do not include protected codes, and do not convey the wrong impression of surrender).
Para. 12.1.1 of NWP: “Stratagems and ruses of war permitted in armed conflict include such deceptions as camouflage; deceptive lightning; dummy ships and other armament; decoys; simulated forces; feigned attacks and withdrawals; ambushes; false intelligence information; electronic deceptions; and utilization of enemy codes, passwords and countersigns.”
Mock operations, as lawful ruses of war, are illustrated by feint attacks leading the enemy to believe that a heavy attack would be delivered against a particular target and thereby inducing it to commit its forces to the defence of that target, while the main blow is delivered at another target which has been left more thinly defended.
An example from history is the Allied air attacks on targets in the Pas de Calais area during the weeks preceding D-Day in 1944. The air attacks convinced Nazi Germany that the invasion would come in that area, and not in Normandy.
Another example is that of moving an aircraft carrier to a particular area, in order to make the enemy believe that an air strike will be delivered from the air carrier. In fact, the main target of the attack may be located in an area beyond the flight capability of the carrier’s aircraft.
Simulated attacks may also be used as lawful ruses of war to entice the enemy to activate its air defence systems, thus providing valuable information about those systems that can be used to facilitate a real attack later. While this is different from mock operations in the classic sense, it has a common element in that it presents the enemy with a false appearance of what is actually going on, thereby lawfully gaining a military advantage.
Disinformation consists of information that is either false or which is designed to lead the enemy to draw incorrect conclusions. Misinformation is mentioned in Art. 37 (2) of AP/I[654] as a lawful ruse of war. Misinformation is a wider term, including information that is incorrect objectively, whereas disinformation is confined to the situation where only the person conveying it is aware of the fact that the information is false. Even disinformation, which is obviously based on deception, is a lawful ruse of war.
An example of use of disinformation is an attempt to induce the enemy to surrender by creating the false impression that it is surrounded, or that massive air attacks are impending whereas no such attack is planned, or even feasible. An historical example relates to WWII. When Belligerent Parties captured enemy aircraft, they gave them the proper new nationality markings, yet employed them in such a manner that the enemy was misled to consider them friendly military aircraft because of their silhouette. In such cases, the captured aircraft were used to great advantage by mixing them with enemy night bombers returning to base from bombing missions, and attacking the enemy airbases that were lit up in order to receive the returning bombers.
False information that suggests civilian, neutral or other protected status is not lawful (see Rule 114).
The use of false military codes and false electronic, optical or acoustic means to deceive the enemy can be seen as a special case of lawful disinformation.
An example might be the use of the enemy’s IFF codes when responding to an IFF interrogation (see Commentary on Rule 40 (f)), thus falsely indicating friendly status as seen from the enemy’s perspective. Such false response is not to be equated to wearing enemy uniform (which is prohibited, see Rule 112 (c)). The correct analogy would be that of a patrol (which is a lawful ruse of war) using the enemy’s password to avoid being fired upon when summoned by an enemy sentry.
Another example of a lawful ruse of war consists of a Belligerent Party’s creating false return on enemy radar, giving the impression of a large formation of approaching aircraft, thus confusing enemy defences. This was done during WWII by dropping aluminium strips (“windows”), and is today done by electronic means.
Unmanned decoys may be used to simulate manned military aircraft by creating an unusually large radar return or in other ways simulating a larger aircraft.
Missile decoys may be used to mislead anti-missile defences. Due to their velocity, they can create destruction when they hit the ground, although they do not contain warheads with explosives.
Dummy construction was used during WWII by Belligerents Parties, in order to simulate objects such as military installations, parked military aircraft or tanks.
Dummy construction that is intended to attract attacks from the enemy must, to the extent feasible, not be located within or near densely populated areas (see Rule 42).
It is permissible to paint military aircraft with camouflage colours, as long as the military markings of the aircraft are there, even though their visibility is impaired (see paragraphs 4 and 5 of the Commentary on Rule 114 (b) as well as paragraph 14 of the Commentary on Rule 11 (x)).
Use of camouflage includes the reduction of electronic, acoustic or infrared signature of a military aircraft, in order to make it “invisible” or “inaudible” to other sensors than the human eye.
It has not been considered unlawful to camouflage ground installations at military airfields, like hangars and workshops, to look like unspecified civilian buildings.
Aircrews conducting combat operations on land or on water — outside their aircraft — must distinguish themselves from the civilian population, as required by the law of interna-tional armed conflict.
The HRAW required in Art. 15 that crews of military aircraft bear a fixed distinctive emblem.[655] However, State practice clearly shows that aircrews of military aircraft in flight are not required to wear uniform as long as they are in the aircraft, since the necessary markings of the military aircraft are sufficient indication of combatant status, thus distinguishing the military aircraft and its crew from civilian aircraft and civilian personnel.
The main thrust of Art. 15 of the HRAW was, however, that the crews must be recognizable at a distance in the event of the crew finding themselves separated from the aircraft. This provision is supported by subsequent State practice. If the aircrews leave their aircraft, they are in no different position from soldiers or sailors operating on land or on water. They must distinguish themselves from civilians as required by the law of international armed conflict, normally by wearing military uniform.
If aircrews do not observe Rule 117, this does not alter their status as combatants but makes it more difficult for the enemy to identify their status and increases the risk that they may be misidentified as spies (see Section R and Rule 120). It is also possible that a Belligerent Party might consider them to be “unprivileged belligerents” (or “unlawful combatants”, see paragraph 4 of the Commentary on Rule 10 (b) (i) and paragraph 4 of the Commentary on the chapeau to Rule 111 (b)).
There is no State practice indicating how Rule 117 is applied, if at all, in a non-international armed conflict.
Art. 15 of the HRAW: “Members of the crew of a military aircraft shall wear a fixed distinctive emblem of such character as to be recognizable at a distance in case they become separated from their aircraft.”
