Introduction II. The Law of War A. General Principles B. Placing Perfidy in the Law of War Framework III. Defining Perfidy and Ruse: Where We Are and How We Got Here A. Early Definitions B. Modern Definitions 1. International Agreements 2. State Definitions IV. What Do Unlawful Perfidy and Lawful Ruse Actually Look Like? A. Perfidy in Practice 1. Additional Protocol I Examples 2. Historical Examples B. Ruse in Practice 1. Traditionally Accepted Practices 2. Historical Examples C. Blurring the Line Further V. Developing and Applying New Definitions A. The Inadequacy of Existing Definitions B. Proposed Definitions C. Application to Warfare in the 21st Century and Beyond VI. Conclusion Appendix: Table 1--Historic, Current, and Proposed Definitions of Perfidy. I. Introduction
War is nasty, cruel, and chaotic. Yet for centuries, the international community has attempted to use law to regulate conduct in battle. Despite war's inevitable brutality and destruction, some tactics are simply declared a bridge too far. One of those tactics is perfidy.
Perfidy, broadly speaking, is unlawful deceptive action. It is closely related to ruses, or lawful deceptive action. Perfidy and ruse are so closely related in fact, that it is often hard to determine what exactly separates one from the other. The gray area between them creates serious problems for combatants who must adhere to the law of war's strictures. Perfidy and ruse have various definitions embodied in international agreements and state military documents. None of those definitions, however, provides useful guidance for battlefield operators in the 21st Century. Not only do the current definitions fail to demarcate the line between perfidy and ruse, but they fail to comport with basic law of war principles.
The current definitions of perfidy and ruse developed when war looked very different from how it looks today. When battles were fought hand-to-hand or on horseback, honor among combatants was the primary concern. As warfare modernized, and became less personal, perfidy and ruse definitions have become outmoded. The definitions struggle to maintain the humanity that inheres in the law of war. Raising a white flag of surrender only to lure the enemy close and kill him is perfidious but raising the same white flag to allow an escape when he stops shooting may be a lawful ruse. It is dishonorable to kill the enemy this way, but it is a sly maneuver to escape. This fine distinction is archaic and impracticable. New definitions are needed to clearly draw the line between what deceptive conduct is permissible and what is unlawful and to fulfill the law of war's basic aims.
This Note proposes new definitions for perfidy and ruse based not on historic notions of honor among combatants, but on higher order principles of the law of war. The proposed definitions aim to protect non-combatants and avoid needless chaos and destruction. They rest on the ideas that civilians should be spared, destruction must be proportionate to the ultimate goal, and that armed conflicts should be brought to swift and peaceful ends.
Section II of this Note introduces the law of war generally and lays out the foundational principles upon which it rests. Section III traces the development of the perfidy/ruse distinction and establishes the current framework. Section IV provides examples of conduct that embody perfidy and ruse, and examples that blur the line between the two. That Section also develops critiques of existing definitions by showing how pliable the factual scenarios are. Section V further expands on the inadequacies of the existing framework and proposes new definitions for perfidy and ruse. To illustrate the new definitions, Section V.C applies them to unique issues in 21st century warfare. Finally, Section VI offers some implications and concludes.
The Law of War
A brief survey of the law of war provides a foundation for understanding the development of perfidy and ruse, and what sort of rules the international community has set for armed conflicts. This Section discusses the fundamental principles undergirding the law of war and places perfidy and ruse within that framework.
The law of war is an effort to cabin the cruelty that often comes naturally to mankind. (1) It endeavors to govern brutal conflicts with reason, rather than impulse. Closely related to the field of international humanitarian law, the law of war is ultimately concerned with minimizing the inevitable suffering that war creates. In so doing, several key principles buttress this body of law.
First is the concept of distinction. Encapsulated in many legal instruments, (2) distinction requires civilians to be treated differently than combatants. The idea behind distinction is that forces should only engage legitimate military targets. Therefore, indiscriminate attacks against civilians and their property violate the law of war. Reason prevails when civilians and combatants are distinguished because innocent lives of those not participating in the hostilities are spared.
Second is the concept of proportionality. Proportionality prohibits any incidental destruction of civilian life or property that is excessive in relation to the gained military advantage. (3) This concept recognizes that some non-military destruction will occur in any war, but attempts to limit the extent of that destruction. Proportionality demonstrates the triumph of reason over impulse because "scorched earth" tactics may well be effective, but they cause needless suffering by those not party to the conflict. Armed forces are thus encouraged to minimize collateral damage and make sure any military gains clearly outweigh the incidental losses to civilians.
Finally, the law of war contains the concept of military necessity. Military necessity requires armed forces to undertake only those actions that are necessary to accomplish legitimate military objectives. (4) Again, this concept recognizes that destruction is inevitable in war, but attempts to limit that destruction to military personnel and materiel. It is not necessary, for example, to destroy civilian water treatment facilities, thereby exposing noncombatants to dehydration and disease. (5) That sort of destruction causes needless suffering, and military necessity seeks to avoid it. (6)
Taken together, the ideas of distinction, proportionality, and military necessity can be distilled into one basic, underlying theme: armed conflicts should be ended as peacefully as possible, with the least amount of damage and suffering. As Carl von Clauswitz observed, it may well be a fallacy to think that humankind can wage war and limit death and destruction at the same time. (7) Nevertheless, the law of war's valiant efforts to minimize destruction and spare innocent lives are accepted internationally and they bind armed forces across the globe.
Placing Perfidy in the Law of War Framework
In fulfilling the principles discussed supra, the law of war consists of two main categories: jus ad bellum and jus in bello. Jus ad bellurn deals with the justifications for war in the first instance, i.e., whether waging war under the circumstances is just. (8) Jus in bello, on the other hand, governs conduct in war. (9) Perfidy and ruse fall under the jus in bello umbrella. (10)
Jus in bello is further divided into subcategories with rules governing weapons, humanitarian interests, and tactics. (11) Rules on weapons regulate specific types of arms like landmines or chemical weapons. (12) Rules on humanitarian interests protect individuals in wartime. (13) Rules on methods concern what may be a legitimate target of war, i.e., what strategies, tactics, and practices of war are lawful. (14)
Perfidy and ruse are tactics or practices that are controlled by jus in bello rules on methods. Regulating perfidy and ruse is a reasoned decision by the international community to set "ground rules" for deception in wartime. As this Note will demonstrate, however, the current treatment with respect to perfidy and ruse fails to adequately support the basic aims of the law of war discussed in Section II.A. supra because it does not adequately account for the humanitarian interests that the law of war also seeks to protect.
Defining Perfidy and Ruse: Where We Are and How We Got Here (15)
Perfidy prohibitions have a long history. Their roots trace back to medieval times where chivalrous conduct in war was only part of a broader system of honor, loyalty, and trust among knights. (16) By avoiding perfidious acts, knights could wage successful war and still preserve their immortal souls. (17) Early law of war scholars also recognized that even in brutal conflict, some tactics were off-limits. Hugo Grotius distinguished between permissible and impermissible ruses by examining the specific significance that custom and tradition attributed to certain actions. (18) He said that deceptive maneuvers must be chosen so "that no harm results, or, at least, only such harm as is admissible irrespective of the deception practised." (19) Grotius marked a theoretical drift away from the prevailing "Thomas Aquinas" view of war tactics whereby the legality of warring acts was determined by the justness of the cause. No longer would any act perpetrated by the "just" party in a conflict be presumptively legal. (20)
Scholars continued struggling to define the perfidy/ruse distinction more precisely through the 16th and 17th centuries. Balthazar Ayala offered as the rule a general duty to avoid treachery. (21) For Ayala, the basis for treachery was whether a reasonable defender would see an action as permissible "trickery" or an impermissible "fraud" or "snare." (22) Later, Alberico Gentili expanded the treachery concept to include actors who encouraged violations of their enemies' reasonable trust that the enemies were safe. (23) As the theory developed, scholars purportedly moved away from "honor-based" or...
|Author:||Greer, Matthew J.|
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