Table of contents:
P.1. Evidence that the perpetrator feigned intent to negotiate under a flag of truce.
P.2. Evidence that the perpetrator feigned an intent to surrender.
P.3. Evidence that the perpetrator feigned an intent to cease fire.
P.4. Evidence that the perpetrator feigned incapacitation by wounds.
P.5. Evidence that the perpetrator feigned incapacitation by sickness.
P.6. Evidence that the perpetrator feigned civilian, non-combatant status.
P.7. Evidence that the perpetrator feigned protected status.
P.10. Evidence that the perpetrator made a treacherous request for quarter.
P.11. Not sufficient: Evidence that the perpetrator used camouflage.
P.12. Not sufficient: Evidence that the perpetrator used decoys.
P.13. Not sufficient: Evidence that the perpetrator used mock operations.
P.14. Not sufficient: Evidence that the perpetrator used misinformation.
Element:
This wording of this crime and its elements is almost identical to article 8(2)(b)(xi) which in turn is based essentially on article 23 (b) of the Hague Regulations and article 37 of Additional Protocol I. (The main difference between the wording of the crime in the ICC Statute and article 37(1) AP I is that the former criminalizes only the treacherous killing or wounding but not treacherous capture; unlike the latter which criminalizes all three.) There is no case law on this particular crime at the international level, and the ICC wil therefore develop its own jurisprudence in this regard. In a general analysis of customary international law applicable in non-international armed conflicts, the ICTY found that the prohibition of perfidy in international armed conflicts applies to internal armed conflicts as well. The ICTY referred to a case before the Supreme Court of Nigeria where the court held that rebels must not feign civilian status while engaging in military operations. (Knut Dormann, Elements of Crimes Under the Rome Statute Cambridge University Press 2002, pp. 476-477) The relevant paragraph is reproduced here:
125. State practice shows that general principles of customary international law have evolved with regard to internal armed conflict also in areas relating to methods of warfare. In addition to what has been stated above, with regard to the ban on attacks on civilians in the theatre of hostilities, mention can be made of the prohibition of perfidy. Thus, for instance, in a case brought before Nigerian courts, the Supreme Court of Nigeria held that rebels must not feign civilian status while engaging in military operations. (See Pius Nwaoga v. The State, 52 International Law Reports, 494, at 496-97 (Nig. S. Ct. 1972).)
The important distinction between this crime and article 8(2)(b)(xi) is that since armed conflicts not of an international character do not take place between countries, the words individuals belonging to the hostile nation or army were replaced by the term combatant adversary. Unlike article 8(2)(b)(xi) under which the perfidious killing of civilians belonging to the enemy nation constitutes a crime within the jurisdiction of the ICC, under this crime it is only the killing of combatant adversaries that would be covered. It has to be noted that this provision does not refer to enemy combatants but instead to combatant adversaries i.e, to adversaries who take part in the conflict. This careful distinction was made to avoid the impression that there exists the notion of combatants in non-international armed conflict. This interpretation is confirmed by the French text, which refers to un adversaire combatant and not to un combatant adversaire. Given this interpretation of article 8(2)(e)(ix), the treacherous killing of any person, who is participating in the fighting on behalf of the adversarial side, is prohibited. (A. Zimmerman, in O.Triffterer (ed.,) Commentary on the Rome Statute (1999), article 8, margin No. 318) (footnotes omitted)
P.1. Evidence that the perpetrator feigned intent to negotiate under a flag of truce.
A. Legal source/authority and evidence:
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:
P.2. Evidence that the perpetrator feigned an intent to surrender.
A. Legal source/authority and evidence:
M. Cottier, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999) article 8, margin Nos. 121, 126:
[ ] Examples of perfidious acts
Largely based on article 37 para. 1 First Add. Prot. the following are examples of perfidious acts (provided they result in killing or wounding individuals belonging to the hostile nation or army):
[ ]
P.3. Evidence that the perpetrator feigned an intent to cease fire.
A. Legal source/authority and evidence:
M. Cottier, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999) article 8, margin Nos. 121, 126:
[ ] Examples of perfidious acts
Largely based on article 37 para. 1 First Add. Prot. the following are examples of perfidious acts (provided they result in killing or wounding individuals belonging to the hostile nation or army):
[ ]
P.4. Evidence that the perpetrator feigned incapacitation by wounds.
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:
[ ]
(b) the feigning of incapacitation by wounds or sickness.
P.5. Evidence that the perpetrator feigned incapacitation by sickness.
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:
[ ]
(b) the feigning of incapacitation by wounds or sickness.
P.6. Evidence that the perpetrator feigned civilian, non-combatant status.
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (AC), 2 October 1995, para. 125:
125. State practice shows that general principles of customary international law have evolved with regard to internal armed conflict also in areas relating to methods of warfare. In addition to what has been stated above, with regard to the ban on attacks on civilians in the theatre of hostilities, mention can be made of the prohibition of perfidy. Thus, for instance, in a case brought before Nigerian courts, the Supreme Court of Nigeria held that rebels must not feign civilian status while engaging in military operations. (See Pius Nwaoga v. The State, 52 International Law Reports, 494, at 496-97 (Nig. S. Ct. 1972).
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:
[ ]
(c) the feigning of civilian, non-combatant status.
P.7. Evidence that the perpetrator feigned protected status.
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:
[ ]
(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.
M. Cottier, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999) article 8, margin Nos. 121, 128:
[ ] Examples of perfidious acts
Largely based on article 37 para. 1 First Add. Prot. the following are examples of perfidious acts (provided they result in killing or wounding individuals belonging to the hostile nation or army):
[ ]
212. See B. Zimmerman, Article 85 Additional Protocol I, ICRC COMMENTARY, margin No. 3497.
B. Evidentiary comment:
While article 8 (2) (b) (xi) generally criminalises perfidy, article 8 (2) (b) (vii) prohibits the improper use of specific signs. (M. 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 MPMDs on the improper use of distinctive signs as well.
A. Legal source/authority and evidence:
M. Cottier, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999) article 8, margin Nos. 121, 124:
[ ] Examples of perfidious acts
Largely based on article 37 para. 1 First Add. Prot. the following are examples of perfidious acts (provided they result in killing or wounding individuals belonging to the hostile nation or army):
[ ]
197. See generally K.J Partsch, Protection of Cultural Property, in: D. Fleck (ed), HANDBOOK 377; J. Toman, La Protection des biens culturels dans les conflits armes internationaux; cadre juridique et institutionnel, in: C. Swinarski, STUDIES AND ESSAYS IN INTERNATIONAL HUMANITARIAN LAW AND RED CROSS PRINCIPLES 559 (1984).
198. Articles 38 para. 1 (second sentence), 53 para. 2 and 85 para. 3 (f) First Add. Prot.
199. Article 28 of the 1954 Hague Convention for the Protection of Cultural Property in the event of Armed Conflict. States have an obligation to provide for criminal jurisdiction over such acts; see for e.g., article 384 of the 1994 Penal Code of the Republic of Slovenia; article 613 of the Spanish Military Penal Code (Ley organica 10/95 of 23 Nov. 1995) the Hague Conevntion of 18 Oct. 1907 Concerning Bombardment by naval Forces in Time of War (Conevntion No. IX) had already prohibited bombardments of, inter alia, historic monuments and sacred edifices and provided for visible signs. See also Treaty on the protection of Artistic and Scientific Institutions and Historic Monuments (15 April 1935), Roerich Pact, 167 L.N.T.S. 289.
A. Legal source/authority and evidence:
M. Cottier, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999) article 8, margin Nos. 121, 125:
[ ] Examples of perfidious acts
Largely based on article 37 para. 1 First Add. Prot. the following are examples of perfidious acts (provided they result in killing or wounding individuals belonging to the hostile nation or army):
[ ]
Article 85 para. 3 (f) Additional Protocol criminalizes the perfidious use of all protective signs recognized by the Conventions or the Protocol, when committed wilfully and causing death or serious injury to body or health, and thus covers, in addition to the already mentioned signs, the misuse of the signs, emblems or uniforms of neutral or other States not parties to the conflict.200, and other internationally recognized emblems, signs or signals.201. Article 8 para. 2 (b) (xi) of the ICC Statute covers the perfidious abuse of these emblems, signs or signals. Even the perfidious use of signs agreed upon bilaterally might be perfidious202 .
200. Article 37 para. 1(d) First Add. Prot. See also article 18 para. 5 First Add. Prot. And articles 6-8 of Annex I to First Add. Prot.
201. Article 38 para. 1 First Add. Prot.
202. Articles 59 and 60 First Add. Prot regulate the use of such signs for non-defended localities and demilitarized zones.
B. Evidentiary comment:
It is unclear whether use of the enemys uniform is perfidious or a mere ruse. In the Trial of Otto Skorzeny and others, 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. All accused were acquitted, however no legal reasoning was given. (Knut Dormann, Elements of Crimes Under the Rome Statute Cambridge University Press 2002, p. 200) One commentator suggests that feigning to be a member of the adversarys or another States armed forces is not directed at feigning a protection under international humanitarian law and therefore does not constitute perfidy in a strict sense; and furthermore it has always been controversial to which degree feigning to belong to the enemys forces is unlawful. (M. Cottier, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999) article 8, margin No. 130) (footnotes omitted). The ICC Statute specifically criminalises the improper use of the flag, military insignia or uniform of the adversary. Please refer to the MPMD on article 8 (2) (b) (vii) 2.
P.10. Evidence that the perpetrator made a treacherous request for quarter.
Knut Dormann, Elements of Crimes Under the Rome Statute Cambridge University Press 2002, p. 241:
Examples mentioned by Oppenhiem are the following:
no assassin must be hired, and no assassination of combatants be committed; a price may not be put on the head of an enemy individual; proscription and outlawing are prohibited; no treacherous request for quarter must be made; no treacherous simulation of sickness or wounds is permitted.2
Greenspan cites the following:
acts of assassination, the hiring of assassins, putting a price on an enemys head, offering a reward for an enemy dead or alive, proscription and outlawry of an enemy, treacherous request for quarter, and the treacherous simulation of death, wounds or sickness, or pretended surrender, for the purpose of putting the enemy off his guard and then attacking him.3
2. L. Oppenheim, International Law, A Treatise, ed. H. Lauterpacht (7th edn, Longmans, London, 1952), vol. II, p. 342.
3. M. Greenspan, The Modern Law of Land Warfare (University of California Press, Berkeley and Los Angeles, 1959), p. 317
B. Evidentiary Comment
Unlike perfidious acts, ruses of war are not prohibited. Ruses of war are essentially distinguished from perfidious acts in so far as they do not invite the confidence of an adversary with respect to protection under international law applicable in armed conflicts. (Knut Dormann, Elements of Crimes Under the Rome Statute Cambridge University Press 2002, p. 244)
P.11. Not sufficient: Evidence that the perpetrator used camouflage.
Article 37, Additional Protocol I:
[ ]
2. 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 that law. The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation.
P.12. Not sufficient: Evidence that the perpetrator used decoys.
A. Legal source/authority and evidence:
Article 37, Additional Protocol I:
[ ]
2. 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 that law. The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation.
P.13. Not sufficient: Evidence that the perpetrator used mock operations.
A. Legal source/authority and evidence:
Article 37, Additional Protocol I:
[ ]
2. 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 that law. The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation.
P.14. Not sufficient: Evidence that the perpetrator used misinformation.
A. Legal source/authority and evidence:
Article 37, Additional Protocol I:
[ ]
2. 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 that law. The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation.
