The Case for Attempted Perfidy: An 'Attempt' to Enhance Deterrent Value

• Author: Geoffrey Corn
• Position: Chair of Criminal Law and Director of the Center for Military Law and Policy, Texas Tech University School of Law
• Pages: 401-447

ARTICLES

The Case for Attempted Perfidy: An “Attempt” to

Enhance Deterrent Value

Geoffrey Corn*

I. INTRODUCTION

Mitigating the risk of deliberate attacks against civilians and other individuals pro-

tected by international humanitarian law is among the most fundamental objectives of

international legal regulation of armed conflicts. This risk mitigation results from a

mosaic of intersecting and complementary rules and principles. First among them,

however, is the principle of distinction: the obligation to distinguish between lawful

objects of attack and all other persons, places, and things. And central to this principle

is the categorical prohibition against deliberately attacking civilians and other pro-

tected individuals (unless and for such time as they directly participate in hostilities).

Facilitating this protection necessitates combatants, and other members of

organized armed groups, distinguish themselves from the civilian population– at

a bare minimum when engaged in hostilities. The failure to do so inevitably

increases the risk that civilians will be mistaken for the enemy and attacked. It is

for this reason that, historically, the international legal privilege to participate in

hostilities was dependent on more than simply fighting on behalf of a state; it

required the belligerent operative to respect the laws and customs of war, operate

under responsible command, and, most importantly here, wear a fixed distinctive

symbol recognizable at a distance and carry arms openly. These requirements

made it easier for an enemy to identify lawful targets. The tradeoff for assuming

this increased risk of being attacked is what is known as combatant immunity.

Derived from lawful combatant privilege, combatant immunity is an international

law-based protection against being subjected to post-capture criminal sanction

for pre-capture conduct that complied with the laws and customs of war.

But this incentive to distinguish oneself from civilians and other protected per-

sons is insufficient alone to meaningfully contribute to the protective effect of dis-

tinction. First, it fails to address the non-international armed conflict context, as

members of organized non-state armed groups have no claim to combatant immu-

nity even if they comply with these conditions. Second, some experts assert that

* George R. Killam, Jr. Chair of Criminal Law and Director of the Center for Military Law and

Policy, Texas Tech University School of Law; Lieutenant Colonel, U.S. Army (Retired), and formerly

Special Assistant for Law of War Matters and Chief of the Law of War Branch, Office of the Judge

Advocate General, United States Army; Chief of International Law for U.S. Army Europe; Professor of

International and National Security Law at the U.S. Army Judge Advocate General’s School. A special

note of thanks to my research assistant, Nicholas LeFevre, Texas Tech University School of Law Class

of 2023. © 2023, George R. Killam.

401

combatant immunity applies to members of state armed forces even if they fail to

comply with these conditions. In both situations, the international humanitarian law

violation of perfidy, which is generally synonymous with the war crime of treachery,

is often considered a sufficient alternative to penalize feigning protected status,

thereby deterring conduct that compromises the efficacy of distinction by incentiviz-

ing belligerent operatives to distinguish themselves from the civilian population.

While it is true that this war crime complements the incentive/deterrent equa-

tion inherent in the notion of combatant immunity, it is also insufficient. This is

because of the result nature of perfidy. This complementary effect, however, can

be enhanced by placing greater emphasis on the impermissibility of perfidious/

treacherous conduct, which in turn can be achieved by recognizing an inchoate

form of this violation of humanitarian law as unlawful.

II. BACKGROUND

No soldier would hope to become a prisoner of war for the simple reason that no

soldier would ever want to be held in captivity by her enemy.

1

See Sam Johnson, I Spent Seven Years as a Vietnam POW. The ‘Hanoi Hilton’ is no Trump Hotel,

POLITICO (July 21, 2015), https://perma.cc/LP7Q-R9KA (discussing that United States soldiers taken

captive during the Vietnam War suffering torturing while imprisoned).

However, in the event

of capture, being accorded prisoner of war status is actually beneficial, as it provides

the captured soldier with a comprehensive “package” of legal rights and privileges.

2

This protective package is intended to ensure that a captive’s deprivation of liberty

is both non-punitive and as tolerable as possible under the circumstances.

3

See generally Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6

U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GPW Convention], https://perma.cc/D22Y-HFY2.

These

rights and privileges are provided by the 1949 Geneva Convention Relative to the

Treatment of Prisoners of War (Third Geneva Convention),

4

as supplemented by

the 1977 Protocol I Additional to the Four Geneva Conventions of 1949

(Additional Protocol I).

5

Examples of the benefits provided by this treaty range from the protection

against any form of coercion to the obligation to repatriate the prisoner of war

upon the termination of hostilities.

6

However, one of the most important “privi-

leges” associated with prisoner of war status is combatant immunity, derived

from what is known as “lawful combatant privilege.”

7

This immunity protects the

1.

2. ANDREW CLAPHAM, PAEOLA GAETA & MARCO SASSOLI, THE 1949 GENEVA CONVENTIONS: A

COMMENTARY 910 (1st ed. 2015) (containing an excerpt from Sean Watts proposing that qualification

for prisoner of war status, treatment standards, and immunity under the combatant privilege be de-

coupled).

3.

4. See id. at arts. 13 & 17.

5. See generally Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to

the Protection of Victims of International Armed Conflicts art. 48, June 8, 1977, 1125 U.N.T.S. 3

[hereinafter Protocol I].

6. See GPW Convention, supra note 3, at arts. 13–16.

7. See Michael H. Hoffman, Terrorists Are Unlawful Belligerents, Not Unlawful Combatants: A

Distinction with Implications for the Future of International Humanitarian Law, 34 CASE W. RSRV. J.

INT’L L. 227, 228 (2002) (outlining the privileges afforded to combatants under the Geneva Convention

when captured by hostile forces). But see U.S. DEP’T OF DEF., LAW OF WAR MANUAL para. 4.1.2 (2015)

402 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 13:401

prisoner of war from being subjected to criminal sanction for pre-capture conduct

that complied with the laws and customs of war, even if that conduct violated the

domestic laws of the detaining power. It is an immunity derived from the interna-

tional legal “privilege” to participate in hostilities.

8

Accordingly, once captured,

the detaining power is prohibited from prosecuting the prisoner of war for her

pre-capture conduct that inflicted death, injury, or other harm to the detaining

power’s forces or resources.

9

The Third Geneva Convention does not expressly provide for combatant im-

munity.

10

Still, it does acknowledge it implicitly by operation of a combination of

articles, most notably Articles 85, 87, and 99.

11

Article 87 states, “Prisoners of

war may not be sentenced by the military authorities and courts of the Detaining

Power to any penalties except those provided for in respect of members of the

armed forces of the said Power who have committed the same acts.”

12

As

States generally would not prosecute and punish one of its service members for

conduct directed against an enemy that complied with international humanitar-

ian law, prosecuting and punishing a prisoner of war for analogous conduct is

prohibited.

13

Article 99, in turn, provides, among other things, that “no prisoner of war may

be tried or sentenced for an act which is not forbidden by the law of the Detaining

Power or by international law, in force at the time the said act was committed.”

14

Because those members of the armed forces and associated armed groups qualify-

ing for prisoner of war status are considered combatants, and thereby vested with

the international legal privilege to participate in hostilities, it would violate

Article 99 to prosecute a prisoner of war with this “privilege” for acts or omis-

sions that complied with international humanitarian law.

15

This conclusion is re-

inforced by Article 85 of the Convention, which addresses punishment for

(revised Dec. 2016) [hereinafter DoD LOWM] (noting persons who qualify for prisoner of war status

under GPW Convention Articles 4A(4) and (5) may not be entitled to combatant immunity).

8. Karl S. Chang, Enemy Status and Military Detention in the War Against Al-Qaeda, 47 TEX. INT’L

L. J. 1, 7–8 (2011) (explaining the rights given to combatants under the law of war, which embodies

broader international law).

9. See id.; Protocol I, supra note 5, at art. 45 (“A person who takes part in hostilities and falls into the

power of an adverse Party shall be presumed to be a prisoner of war. . .”).

10. See generally GPW Convention, supra note 3, at arts. 85, 87, 99.

11. See id.

12. See GPW Convention, supra note 3, at art. 87.

13. MANUAL FOR COURTS-MARTIAL, UNITED STATES pt. 2, ch. IX, r. 916(c) (2019) [hereinafter

MCM]. The United States has codified its combatant immunity to protect service members operating

within the bounds of international law. Id. In the Manual for Courts-Martial, there is a justification

defense for duties “imposed by statute, regulation, or order. For example, the use of force by a law

enforcement officer when reasonably necessary in the proper execution of a lawful apprehension is

justified because the duty to apprehend is imposed by lawful authority. Also, killing an enemy combatant

in battle is justified.” Id.

14. See GPW Convention, supra note 3, at art. 99.

15. Id.

2023] ATTEMPTED PERFIDY 403