Perfidy in Non-International Armed Conflicts

Author:Richard B. Jackson
Position:Colonel, U.S. Army (Ret.); Special Assistant to the Judge Advocate General of the Army for Law of War Matters
Pages:237-259
 
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XI
Perfidy in Non-International Armed
Conflicts
Richard B. Jackson*
Introduction
Perfidy is agrave breach, or serious crime, under the law ofwar. It is generally
defined as "acts inviting the confidence ofan adversary to lead him to believe
that he is entitled to, or is obliged to accord, protection under the rules of interna-
tional law applicable in armed conflict, with intent to betray that confidence." 1Ex-
amples include using the white flag to lure an enemy into the open, or feigning
incapacitation by wounds or sickness; the most egregious violations include using
protected status, as acivilian or amedical professional, to treacherously kill or
wound an enemy.
In the current and recent conflicts in Iraq, Afghanistan, Somalia and Pakistan,
all of which are non-international armed conflicts of varying degrees of intensity,
actions that would be described as perfidy if they had occurred in an international
armed conflict are rampant. On January 19, 2011, for example, Iraqi insurgents
used an ambulance bomb to attack an Iraqi police station in Diyala province, kill-
ing five and wounding seventy-six individuals, the majority of whom were civil-
ians. 2On the afternoon of July 5, 2011, asuicide bomber, disguised as acivilian,
detonated atruckload of explosives near amunicipal building in Taji, Iraq; as
*Colonel, U.S. Army (Ret.); Special Assistant to the Judge Advocate General of the Army for Law
of War Matters. The views and opinions expressed are those of the author alone and not neces-
sarily those of the U.S. government or the U.S. Army.
Perfidy in Non-International Armed Conflicts
friends and neighbors, including young children, rushed to help the injured, asecond
suicide bomber attacked from among the crowd.3In Afghanistan, on April 7, 201 1, a
suicide bomber used an ambulance to infiltrate apolice checkpoint and then deto-
nated his bomb, killing six.4In Somalia, Al-Shabaab, an Al Qaeda-affiliated group
fighting the fledgling Somali government, has trained women to be suicide bomb-
ers, so they can launch their attacks while appearing to be innocent civilian females,
dressed in traditional Moslem garb. 5And Pakistani insurgents have employed sim-
ilar asymmetric tactics. On May 13, 201 1, just days after the death of Bin Laden, the
Pakistani Taliban returned to the practice oflaunching suicide attacks from among
the civilian populace.6
The question to be addressed is whether the war crime of perfidy exists in the
law of war pertaining to non-international armed conflicts. Or phrased in another
manner, is it appropriate to apply this term outside of international armed conflict,
where the rules are defined by treaty and customary international law? The Manual
on the Law of Non-International Armed Conflict suggests that at least some of the
conduct defined as perfidy when occurring during an international armed conflict
is also perfidious when occurring during non-international armed conflicts. 7What
are its parameters and how many ofthe concepts from international armed conflict
are to be incorporated into the law of non-international armed conflicts?
An answer to these questions requires an examination of the Additional Proto-
col I(AP I) definition of perfidy in international armed conflict and its anteced-
ents, an analysis of the existing treaty law of non-international armed conflict
(Additional Protocol II (AP II)) 8and an extrapolation ofthe principles established
in AP Ifor international armed conflicts into the law for non-international armed
conflicts. Although many of the specific provisions of AP Iwere not included in
AP II, Additional Protocol II includes the same general protections as AP I, which
suggests that the more specific provisions of AP Ithat give form and substance to
the general protections can be used to enforce compliance with those general
protections in non-international armed conflict, as amatter of customary interna-
tional law. As Bothe, Partsch and Solf suggest in their seminal work on the proto-
cols, "The concept of general protection ... is broad enough to cover protections
which flow as necessary inferences from other provisions of Protocol II." 9The
basic principle of distinction and the protective principle of the law of armed con-
flict (also referred to as international humanitarian law) logically lead to the incor-
poration of the prohibition on perfidy, by inference, into the law applicable to
non-international armed conflict. In addition, the near-universal condemnation
of perfidious attacks and current State practice in those conflicts, the practice of
some international criminal tribunals, the practices adopted by States fighting
these conflicts and recent U.S. military commission cases provide substantial
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