Table of contents:
4.1.1. Evidence of use in a manner prohibited under the international rules of land warfare:
P.1. Evidence that the perpetrator wore enemy uniform.
P.3. Evidence that the perpetrator used captured enemy tanks without first removing enemy markings.
4.1.2. Evidence of use in a manner prohibited under the international rules of naval warfare.
P.6. Evidence that the perpetrator was flying a false flag.
P.7. Evidence that the perpetrator used enemy colours and markings.
4.1.3. Evidence of use in a manner prohibited under the international rules of air warfare.
P.8. Evidence that military aircraft bore false markings.
4.2. The perpetrator made such use while engaged in an attack.
P.10. Evidence of use of military insignia or uniform of the enemy in preparation to attack.
P.10.1. Evidence that the perpetrator used enemy insignia as disguises.
P.11. Evidence of use of military insignia or uniform of the enemy in sabotage missions.
P.11.1. Evidence that saboteurs attired in enemy uniform were sent into enemy territory.
P.14. Not sufficient: evidence of use of flag, insignia, or uniform of the hostile party by spies.
P.16. Not sufficient: evidence of use of flag in preparation to an attack.
Element:
General evidentiary comment:
In the O. Skorzeny and Others case, German soldiers used American uniforms and vehicles to sabotage and disrupt freely behind American lines. The accused were charged with participating in the improper use of American uniforms by entering into combat disguised therewith and treacherously firing upon and killing members of the armed forces of the United States. (UNWCC, Law Reports of Trials of War Criminals, vol. IX, p. 90) However, all were acquitted and no reasoning was given.
One commentator suggests that since the procedure applicable in this case did not require any finding from the Court other than guilty or not guilty, no safe conclusions can be drawn from acquittal of all accused. (Knut Dormann, "Elements of War Crimes under the Rome Statute", p. 200)
Another commentator concurs that the acquittal in O. Skorzeny cannot be taken as a yardstick, because the analysis of the acquittal in LAW REPORTS, Vol. IX, 90-93, does not consider the legislative background of article 23(f) of the 1907 Hague Regulations or the situation of modern armed conflicts. (D. Fleck, Ruses of War and Prohibition of Perfidy, 13 Revue de Droit Penal Militaire et de Droit de la Guerre 269, at 281-282 (1974) cited in Michael Cottier, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), margin no. 82)
4.1.1. Evidence of use in a manner prohibited under the international rules of land warfare:
A. Legal source/authority and evidence:
Article 39, Additional Protocol I:
"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 recognised rules of international law applicable to espionage or to the use of flags in the conduct of armed conflict at sea.
B. Evidentiary comment:
The prohibition on the use of the emblems of the adverse Party during an attack includes the preparatory stage preceding the attack. (ICRC Commentary on the Additional Protocols to the Geneva Conventions, p. 471)
P.1. Evidence that the perpetrator wore enemy uniform.
A. Legal source/authority and evidence:
Michael Cottier, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), margin no. 82:
"It seems accepted that in order to be able to distinguish between friend and foe it is improper for combatants to wear the uniforms of the enemy while actually engaging in hostile military action".(footnotes omitted)
A. Legal source/authority and evidence:
Michael Bothe et al., New Rules for Victims of Armed Conflict (1982), p. 214:
"2.3.1 Among the other probably prohibited uses are:
[ ]
(b) The use in combat or in support of combat operations of captured vehicles, tanks, self-propelled artillery and other major weapons, without first removing the enemy national markings. Unmarked or camouflaged captured materiel may, however, be used immediately."
P.3. Evidence that the perpetrator used captured enemy tanks without first removing enemy markings.
A. Legal source/authority and evidence:
Michael Bothe et al., New Rules for Victims of Armed Conflict (1982), p. 214:
"2.3.1 Among the other probably prohibited uses are:
[ ]
(b) The use in combat or in support of combat operations of captured vehicles, tanks, self-propelled artillery and other major weapons, without first removing the enemy national markings. Unmarked or camouflaged captured materiel may, however, be used immediately."
A. Legal source/authority and evidence:
Michael Bothe et al., New Rules for Victims of Armed Conflict (1982), p. 214:
"2.3.1 Among the other probably prohibited uses are:
[ ]
(b) The use in combat or in support of combat operations of captured vehicles, tanks, self-propelled artillery and other major weapons, without first removing the enemy national markings. Unmarked or camouflaged captured materiel may, however, be used immediately."
A. Legal source/authority and evidence:
Michael Bothe et al., New Rules for Victims of Armed Conflict (1982), p. 214:
"2.3.1 Among the other probably prohibited uses are:
[ ]
(b) The use in combat or in support of combat operations of captured vehicles, tanks, self-propelled artillery and other major weapons, without first removing the enemy national markings. Unmarked or camouflaged captured materiel may, however, be used immediately."
4.1.2. Evidence of use in a manner prohibited under the international rules of naval warfare.
P.6. Evidence that the perpetrator was flying a false flag.
A. Legal source/authority and evidence:
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), p. 202:
"(b) Naval Warfare
As indicated above, AP I does not cover the law of naval warfare (Art. 39(3) AP I) The following rules described in the San Remo Manual reflect the status of customary international law in this field:
15. San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Cambridge University Press, Cambridge, 1995), no. 110, p. 184. The complete rule reads as follows:
Ruses of war are permitted. Warships and auxiliary vessels, however, are prohibited from launching an attack whilst flying a false flag and at all times from actively simulating the status of:
(a) hospital ships, small coastal rescue craft or medical transports;
(b) vessels on humanitarian missions;
(c) passenger vessels carrying civilian passengers;
(d) vessels protected by the United Nations flag;
(e) vessels guaranteed safe conduct by prior agreement between the aprties, including cartel vessels;
(f) vessels entitled to be identified by the emblem of the red cross or red crescent;or
(g) vessels engaged in transporting cultural property under special protection.
The latter actions by warships, although not necessarily qualifying as perfidy, are prohibited under the law of armed conflict. It should be noted that in order to commit a violation, the warship must actively endeavour to establish its identity as one iof the vessels mentioned under this paragraph. The list of vessels included in this paragraph is exhaustive, ibid. nos. 110.2.ff.
Michael Bothe et al., New Rules for Victims of Armed Conflict (1982), p. 212, footnote 1:
"1. According to custom, it is permissible for a warship to fly false colours in order to deceive an enemy, provided that prior to going into action such warship shows her true colours. In 1914, the German cruiser Emden made use of this stratagem when she entered the harbour of Penang under (then neutral) Japanese colours, hoisted her proper ensign, and torpedoed a Russian warship lying at anchor. (H.A. Smith, The Law and Custom of the Sea, 2nd ed. (New York, 1950), p. 91; USN NWIP 10-2, pp. 6-7 to 6-8, 6-14; Fleck, "Kriegslisten und Perfidievorbot" in Fleck (ed), Beitrage zur Weiterentwicklung Humanitaren Volkerrecht fur Bewaffnete Konflikte, (Hamburg, 1973), pp. 135 ff."
P.7. Evidence that the perpetrator used enemy colours and markings.
A. Legal source/authority and evidence:
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), p. 202:
"NB:
The US Commanders handbook on the Law of Naval Operations (NWP 1-14M) states:
Naval surface and subsurface forces may fly enemy colours and display enemy markings to deceive the enemy. Warships must, however display their true colours prior to an actual armed engagement.16
The German military manual indicates:
Ruses of war are permissible also in naval warfare. Unlike land and aerial warfare, naval warfare permits the use of false flags or military emblems (Art. 39(3) AP I). Before opening fire, however, the true flag shall always be displayed.17
"16. The Commanders Handbook on the Law of Naval Operations (NWP1-14M), (1995), p. 12-1 (12.5.1)
17. 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. 1018."
4.1.3. Evidence of use in a manner prohibited under the international rules of air warfare.
P.8. Evidence that military aircraft bore false markings.
A. Legal source/authority and evidence:
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), p. 203:
"(c) Air Warfare
The following sources indicate the law specifically applicable to air warfare.
The San Remo Manual states:
Military and auxiliary aircraft are prohibited at all times from feigning exempt, civilian or neutral status.18
The commentary points out that, contrary to warships, where the use of a false flag was prohibited only during an attack under the traditional law, aircraft have never beem entitled to bear false markings.19
Art. 19 of the 1923 Hague Rules of Air Warfare confirms this view:
The use of false external marks is forbidden."
"18. San Remo Manual, no. 109, p. 184.
19. Ibid., Preliminary Remarks, p. 184"
4.2. The perpetrator made such use while engaged in an attack.
A. Legal source/authority and evidence:
Michael Cottier, "Article 8" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), margin no. 82:
"It seems accepted that in order to be able to distinguish between friend and foe it is improper for combatants to wear the uniforms of the enemy while actually engaging in hostile military action".(footnotes omitted)
[B. Evidentiary comment:]
P.10. Evidence of use of military insignia or uniform of the enemy in preparation to attack.
P.10.1. Evidence that the perpetrator used enemy insignia as disguises.
A. Legal source/authority and evidence:
Michael Bothe et al., New Rules for Victims of Armed Conflict (1982), p. 214:
"2.3.1 Among the other probably prohibited uses are:
[B. Evidentiary comment:]
P.11. Evidence of use of military insignia or uniform of the enemy in sabotage missions.
P.11.1. Evidence that saboteurs attired in enemy uniform were sent into enemy territory.
A. Legal source/authority and evidence:
Michael Bothe et al., New Rules for Victims of Armed Conflict (1982), p. 215:
"Sending out a party of saboteurs attired in the enemys uniform into territory controlled by the adverse Party is, however, a breach of Art. 39 and might also involve a breach of Art. 86."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Michael Bothe, "Flags and Uniforms in War" in Encyclopaedia of Public International Law, Vol. II, (1992), pp. 402-404:
"The question of when the use of enemy uniforms etc. is "improper" however, ahs caused controversy. It certainly is improper in actual combat. The question has now been clarified by Art. 39 of Protocol I, which prohibits such use while engaged in attacks or in order to shield, favour, protect or impede military operations. On the other hand the use of enemy uniforms can be lawful e.g for escaping P.O.W.s. [ ]"
A. Legal source/authority and evidence:
Michael Bothe, "Flags and Uniforms in War" in Encyclopaedia of Public International Law, Vol. II, (1992), pp. 402-404:
"The question of when the use of enemy uniforms etc. is "improper" however, ahs caused controversy. It certainly is improper in actual combat. The question has now been clarified by Art. 39 of Protocol I, which prohibits such use while engaged in attacks or in order to shield, favour, protect or impede military operations. On the other hand the use of enemy uniforms can be lawful e.g for escaping P.O.W.s. or grounded airmen trying to get back to their lines."
P.14. Not sufficient: evidence of use of flag, insignia, or uniform of the hostile party by spies.
A. Legal source/authority and evidence:
Michael Bothe, "Flags and Uniforms in War" in Encyclopaedia of Public International Law, Vol. II, (1992), pp. 402-404:
"The question of when the use of enemy uniforms etc. is "improper" however, ahs caused controversy. It certainly is improper in actual combat. The question has now been clarified by Art. 39 of Protocol I, which prohibits such use while engaged in attacks or in order to shield, favour, protect or impede military operations. On the other hand the use of enemy uniforms can be lawful e.g for escaping P.O.W.s. or grounded airmen trying to get back to their lines."It is also lawful for spies to use enemy uniforms although spies may be punished for their spying activities.
A. Legal source/authority and evidence:
Michael Bothe et al., New Rules for Victims of Armed Conflict (1982), p. 214:
"2.3.2. Probably unprohibited uses are:
(a) the use of enemy uniforms, emblems or insignia in training to promote realism and recognition."
P.16. Not sufficient: evidence of use of flag in preparation to an attack.
A. Legal source/authority and evidence:
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2003), p. 202:
"(b) Naval Warfare
As indicated above, AP I does not cover the law of naval warfare (Art. 39(3) AP I) The following rules described in the San Remo Manual reflect the status of customary international law in this field:
15. San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Cambridge University Press, Cambridge, 1995), no. 110, p. 184. The complete rule reads as follows:
Ruses of war are permitted. Warships and auxiliary vessels, however, are prohibited from launching an attack whilst flying a false flag and at all times from actively simulating the status of:
(h) hospital ships, small coastal rescue craft or medical transports;
(i) vessels on humanitarian missions;
(j) passenger vessels carrying civilian passengers;
(k) vessels protected by the United Nations flag;
(l) vessels guaranteed safe conduct by prior agreement between the aprties, including cartel vessels;
(m) vessels entitled to be identified by the emblem of the red cross or red crescent;or
(n) vessels engaged in transporting cultural property under special protection.
The latter actions by warships, although not necessarily qualifying as perfidy, are prohibited under the law of armed conflict. It should be noted that in order to commit a violation, the warship must actively endeavour to establish its identity as one iof the vessels mentioned under this paragraph. The list of vessels included in this paragraph is exhaustive, ibid. nos. 110.2.ff.
Michael Bothe et al., New Rules for Victims of Armed Conflict (1982), p. 212, footnote 1:
"1. According to custom, it is permissible for a warship to fly false colours in order to deceive an enemy, provided that prior to going into action such warship shows her true colours. In 1914, the German cruiser Emden made use of this stratagem when she entered the harbour of Penang under (then neutral) Japanese colours, hoisted her proper ensign, and torpedoed a Russian warship lying at anchor. (H.A. Smith, The Law and Custom of the Sea, 2nd ed. (New York, 1950), p. 91; USN NWIP 10-2, pp. 6-7 to 6-8, 6-14; Fleck, "Kriegslisten und Perfidievorbot" in Fleck (ed), Beitrage zur Weiterentwicklung Humanitaren Volkerrecht fur Bewaffnete Konflikte, (Hamburg, 1973), pp. 135 ff."
