4. The perpetrator made such use in order to feign an intention to negotiate when there was no such intention on the part of the perpetrator.

P.1. Evidence that the perpetrators approached an enemy position under a flag of truce with intent to attack.

P.2. Evidence that the perpetrator used the flag of truce surreptitiously to obtain military information.

P.3. Evidence that the perpetrator used the flag of truce to obtain time to effect a retreat.

P.4. Evidence that the perpetrator used the flag of truce to secure reinforcements.

P.5. Evidence that the perpetrator used the flag of truce to feign surrender in order to surprise the enemy.

4. The perpetrator made such use in order to feign an intention to negotiate when there was no such intention on the part of the perpetrator.

A. Legal source/authority and evidence:

Article 37 (on the prohibition of perfidy), 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.

B. Evidentiary Comment

P.1. Evidence that the perpetrators approached an enemy position under a flag of truce with intent to attack.

Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), p.199:

"The German military manual states:

[…] The flag of truce is misused, for instance, if soldiers approach an enemy position under the protection of the flag of truce in order to attack.⁴

"4. Humanitarian Law in Armed Conflicts- Manual, DSK VV207320067, The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, no. 230."

B. Evidentiary Comment

P.2. Evidence that the perpetrator used the flag of truce surreptitiously to obtain military information.

A. Legal source/authority and evidence:

Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), p.199:

"The US military manual also gives some clarification:

Flags of truce must not be used surreptitiously to obtain military information or merely to obtain time to effect a retreat or secure reinforcements or to feign a surrender in order to surprise an enemy.⁵"

"5. US Department of the Army, Field Manual, FM 27-10, The Law of Land Warfare (1956), p.23"

B. Evidentiary Comment

P.3. Evidence that the perpetrator used the flag of truce to obtain time to effect a retreat.

A. Legal source/authority and evidence:

Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), p.199:

"The US military manual also gives some clarification:

Flags of truce must not be used surreptitiously to obtain military information or merely to obtain time to effect a retreat or secure reinforcements or to feign a surrender in order to surprise an enemy.⁵"

"5. US Department of the Army, Field Manual, FM 27-10, The Law of Land Warfare (1956), p.23"

B. Evidentiary Comment

P.4. Evidence that the perpetrator used the flag of truce to secure reinforcements.

A. Legal source/authority and evidence:

Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), p.199:

"The US military manual also gives some clarification:

Flags of truce must not be used surreptitiously to obtain military information or merely to obtain time to effect a retreat or secure reinforcements or to feign a surrender in order to surprise an enemy.⁵"

"5. US Department of the Army, Field Manual, FM 27-10, The Law of Land Warfare (1956), p.23"

B. Evidentiary Comment

P.5. Evidence that the perpetrator used the flag of truce to feign surrender in order to surprise the enemy.

A. Legal source/authority and evidence:

Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), p.199:

"The US military manual also gives some clarification:

Flags of truce must not be used surreptitiously to obtain military information or merely to obtain time to effect a retreat or secure reinforcements or to feign a surrender in order to surprise an enemy.⁵"

"5. US Department of the Army, Field Manual, FM 27-10, The Law of Land Warfare (1956), p.23"

B. Evidentiary Comment