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Tuesday, November 16, 2004

Law of Armed Conflict and Feigning Injury or Surrender

Well, of course there are going to be questions. Just as there were when Dennis P. Chapman wrote a fine piece entitled "Treachery and its consequences: civilian casualties during operation Iraqi freedom and the continued utility of the law of land warfare". Some tidbits:
The law of war seeks to limit or restrain the social costs of war in three ways: by protecting "both combatants and noncombatants from unnecessary suffering;" by "safeguard[ing] certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians;" and by "facilitat[ing] the restoration of peace." In pursuit of these aims, international law imposes certain standards on all combatants in armed conflicts. These include requirements to wear uniforms or distinctive insignia and to bear arms openly; prohibitions against abuse of flags of truce or equivalent symbols, and against the misuse of symbols such as the red cross or red crescent; and roles concerning the status of cultural and humanitarian sites during wartime.
During the course of Operation Iraqi Freedom, fighters loyal to Saddam Hussein violated all of these. The most common such violation--and the one attended by the most tragic results--attacking U.S. forces while under civilian disguise. Protecting civilians from the evil effects of battle has long been a fundamental goal of the law of armed conflict. To that end, international law has long sought to "maintain the distinction between combatants and noncombatants with as much clarity as possible."
(quote is from page 2 of the article, found here. References to notes have been omitted).

What about feigning injury or surrender? An interesting analysis can be found here. Scott Silliman, of Duke University's Center of LAw, Ethics and National Security, spoke at a Conference on Strategic Deception in Modern Democracies: Ethical, Legal, and Policy Challenges, Chapel Hill, NC, 31 October -1 November 1, 2003, sponsored by the Triangle Institute for Security Studies, The United States Army War College, The United States Naval Academy, and Duke University's Kenan Institute for Ethics. Money quote section:
Now, as far as what the law requires and what it prohibits, let me suggest to you that you can remember one principle. In a nutshell, the law prohibits perfidy. It allows legitimate trickery and strategies. At this point, I could almost sit down and say, “And that is all you need to know.” There is, in fact, no other codification in treaty law and there are no other principles of customary international law that have a bearing on the issue. What we will discuss here over the next two days will have little to do with the law, but has everything to do with the ethics and policy consequences of what we do and why we do it. Now let me give you some examples of acts of perfidy. They are few, but do in fact constitute violations of international law. You find them either in treaty or customar international law.

First, it is illegal for a soldier to pretend to be a civilian while committing hostilities. This may be the most important of all the prohibitions because it gets at what lies at the very heart of what we call international humanitarian law – the distinction between combatants and non-combatants. .. So that is act of perfidy number one. It is, as I said, the first and probably the most important prohibition because, whatever we do by way of deception at whatever level –tactical, strategic, or any other – we must always respect that bright line separating civilians from combatants.

The second prohibition in international law is against wearing the uniform emblems or insignias of the enemy again during combat operations. Now there are notable exceptions to this rule. A downed aircrew in distress may don the uniform of the enemy. But it may do so only for the purpose of escape and evasion. Under the current state of international law, were this downed aircrew to go into an attack mode or even go so far as to gather intelligence, it would be engaging in a prohibited act.

Probably the most easily recognizable proscription against types of deception is the raising of the white flag. I have a cartoon that I use in my classes. It shows a cavalryman with a flag behind his back and the flag has the words “fake” written on it, suggesting that it could be being used as a ruse. Well, if it is used as a ruse, then it is a violation of international law, because the white flag of truce is recognized as the means of surrender, so whoever holds it is no longer seen as a combatant.

Feigning wounds so as to gain an advantage in an attack is also a violation of international law. However, feigning injuries or even death to stop an attack is not. You see the difference. There is a clear thread running through all of these examples. For deception to be considered perfidy, perpetrators must intend to use the advantage gained in order to attack, to kill, or to wound. If they use these tactics in order to survive then it is not illegal in any since of the word. Indeed, not only is it not illegal, it is probably prudent.

Feigning protected status by using signs emblems or uniforms of the United Nations, of neutral countries, or of countries that are not a party to the conflict, is also a violation of international law. Again there are exceptions. I did not know until I started to look at some of the literature that there is an exception in naval warfare. A ship may in fact fly the colors of the enemy up until the time that it commences an attack. Then it must strike its true colors. Now that is not an exception that the Air Force can make use of, simply because it is very difficult to step outside one’s airplane, and change its markings!

Feigning protected status by using internationally recognized signs like the Red Cross, or the Red Crescent is also a violation of international law. You can get into the weeds here. There is a sign in treaty law, by the way, recognizing hospital zones. It is a rather obtuse red band set across a white shield. There are also some recognized symbols: you’ve got “PW” for prisoner of war. You’ve also got a “PG” which is also another version of the same thing. It is a violation of international law to use these signs for the purpose of gaining an advantage in an attack.

Similarly if one were to broadcast an “S.O.S,” which is an internationally recognized distress symbol, or a “Mayday” for the purpose of gaining a tactical advantage in an attack, that would be a violation of international law. And, folks, that is really the entire list.


Aren't you glad you asked?

Update: MSNBC says the investigaton into the mosque shooting is "expanding". It also contains this tidbit:
Another Marine in the man's unit was killed the previous day by the booby-trapped body of an insurgent, a fact that international legal experts said could provide the Marine with a defense if charges are filed against him. A key issue was whether the injured man was a prisoner at the time, they said.

Update: Belmont Club has a interesting piece on "perfidy and treachery."

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