Q: General Rules

Rule 111

  1. 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.
    2. [Commentary]
  2. The following acts are examples of perfidy as per paragraph (a): feigning of civilian, neutral or other protected status.
    3. [Commentary]

  1. This Rule is derived from Art. 37 (1) of AP/I.[614] See also Para. 12.1.2 of NWP.[615]

  2. 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.

  3. 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.

  4. 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”.

  5. 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.

  6. 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.

  7. 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).

  8. 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.

  9. 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.

  10. 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.

  11. 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]

  1. 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.”

  2. 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.”

  3. 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.”

  4. 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.”

  5. Art. 8 (2) (e) (ix) of the Rome Statute of the ICC, see Para. 4, Rule 111 (a), Section Q.

  1. This Rule is derived from Art. 37 (1) (a) − (d) of AP/I.[619]

  2. Rule 111 (b) illustrates the prohibition of perfidy defined in Rule 111 (a) without exhausting the scope of the prohibition.

  3. 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.

  4. 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.

  5. “Other protected status” (in addition to civilian and neutral status) includes inter alia UN personnel.

  6. 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).

  1. Art. 37 (1) (a)–(d) of AP/I, see fn. 614.

  2. Common Art. 3 of the Geneva Conventions, see fn. 118.

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Rule 112

Without prejudice to the rules of naval warfare, the following acts are prohibited at all times irrespective of whether or not they are perfidious:

[Commentary]
  1. 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.


    2. [Commentary]
  2. Improper use of the flag of truce.
    3. [Commentary]
  3. Improper use by a Belligerent Party of the flags or military emblems, insignia or uniforms of the enemy.

    4. [Commentary]
  4. Use by a Belligerent Party of the flags or military emblems, insignia or uniforms of Neutrals.

    5. [Commentary]
  5. Use by a Belligerent Party of the distinctive emblem of the United Nations, except as authorized by that Organization.


    6. [Commentary]

  1. 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.

  2. Special rules apply in the case of naval warfare, see paragraph 3 of the Commentary on Rule 112 (c).

  3. 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).

  1. This Rule is based on Art. 38 (1) of AP/I.[621] The principle is also found in Art. 23 (f) of the 1907 Hague Regulations.[622]

  2. 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.

  3. 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).

  4. 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.

  5. 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]

  6. Rule 112 (a) applies also in non-international armed conflict.

  1. 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.”

  2. 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”.

  3. Art. 8 (2) (b) (vii) of the Rome Statute of the ICC, see fn. 627.

  1. This Rule is based on Art. 38 (1) of AP/I[624] and on Art. 23 (f) of the 1907 Hague Regulations.[625]

  2. Traditionally, the flag of truce is a white flag.[626]

  3. 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).

  4. 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]

  5. Rule 112 (b) also applies in non-international armed conflict.

  1. Art. 38 (1) of AP/I, see fn. 621.

  2. Art. 23 (f) of the 1907 Hague Regulations, see fn. 622.

  3. 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.”

  4. 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.”

  1. 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]

  2. 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]

  3. 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.

  4. 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.

  5. 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]

  6. 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.

  7. Rule 112 (c) applies also to non-international armed conflict.

  1. Art. 23 (f) of the 1907 Hague Regulations, see fn. 622.

  2. 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.”

  3. 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.”

  4. 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.”

  5. 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.”

  6. 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.”

  7. Art. 8 (2) (b) (vii) of the Rome Statute of the ICC, see fn. 627.

  1. This Rule is based on Art. 39 (1) of AP/I.[635] See also Para. 12.3.2. of NWP.[636]

  2. 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).

  3. 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.

  1. 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.”

  2. 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.”

  1. This Rule is based on Art. 38 (2) of AP/I.[637] See also Para. 12.4 of NWP.[638]

  2. 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).

  3. 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).

  4. 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]

  5. Rule 112 (e) applies also in non-international armed conflict.

  1. 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.”

  2. 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.”

  3. Art. 8 (2) (b) (vii) of the Rome Statute of the ICC, see fn. 627.

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Rule 113

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).

[Commentary]

  1. This Rule is based on Art. 24 of the 1907 Hague Regulations[640] and on Art. 37 (2) of AP/I.[641]

  2. 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.

  3. 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).

  4. Specific examples of lawful ruses of war in air or missile warfare are given in Rule 116 on an illustrative basis.

  5. Rule 113 applies also in non-international armed conflict.

  1. 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.”

  2. 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.”

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