3. The perpetrator used a flag of truce.

3. The perpetrator used a flag of truce.

General evidentiary comment:

This crime is based on Article 23(f) of the Hague Regulations which prohibits "mak[ing] 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 Conventions". The requirement that the improper use result in "death or serious personal injury" is taken from the grave breaches provision of article 85 Paragraph 3(f) Additional Protocol I. Although article 8 (2) (b) (xi) generally criminalises perfidy, article 8 (2) (b) (vii) prohibits the improper use of specific signs. (Michael Cottier, in Otto Triffterer (ed.), "Commentary on the Rome Statute of the International Criminal Court" (1999) article 8, margin No. 69. Please refer to the MPMD on perfidy (article 8 (2)(b)(xi)) as well.

There is no case law at the international level on this particular crime. However, one commentator suggests that it is significant that the International Military Tribunal, in the Nuremberg Judgment, selected the improper use of the flags of truce as a self-evident example of war crimes, pointing out that even though the Hague Regulations do not explicitly designate such a practice as criminal, past offenders have been tried and punished as war criminals for many years. (Yoram Dinstein, ‘Flags of Truce’ in "Encyclopaedia of Public International Law" Vol. II (1992), p. 402)

Article 23, Hague Regulations 1907:

"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 Conventions.

Article 37, Additional Protocol I:

1 […] 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.

Article 38, Additional Protocol I:

"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 recognised protective emblems, signs or signals, including the flag of truce, and the protective emblem of cultural property.

[…]"

Article 85(3) Additional Protocol I:

"3. In addition to the grave breaches defined in Article 11, the following acts shall be regarded as grave breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health:

[…]

(f) the perfidious use, in violation of Article 37, of the distinctive emblem of the red cross, red crescent, or red lion and sun or of other protective signs recognized by the Conventions or this Protocol.

Article 32 Hague Regulations 1907:

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.

Article 33 Hague Regulations 1907:

The commander to whom a parlementaire is sent is not in all cases obliged to receive him.

He may take all the necessary steps to prevent the parlementaire taking advantage of his mission to obtain information.

In case of abuse, he has the right to detain the parlementaire temporarily.

Article 34 Hague Regulations 1907:

The parlementaire loses his rights of inviolability if it is proved in a clear and incontestable manner that he has taken advantage of his privileged position to provoke or commit an act of treason.

B. Evidentiary Comment

One commentator suggests that though articles 32-34 of the Hague Regulations may sound anachronistic in the modern context, (where radio replaces the bugler and drummer as sign of an intent to parley) negotiations are only possible face-to-face, and the flag of truce is therefore still significant. Moreover, the importance of the flag of truce is demonstrated by the fact that as recently as 1977, the drafters of Additional Protocol I included the feigning of an intent to negotiate under a flag of truce as an example of perfidy. (Yoram Dinstein, ‘Flags of Truce’ in "Encyclopaedia of Public International Law" Vol. II (1992) p. 402) Another commentator notes that the use of modern methods of communication could be covered by applying the same ideas mutatis mutandis. (Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), p.199)