Fighting Irregular Wars: Is It Time To Rethink The Laws Of Perfidy? – Analysis
“Conceal your dispositions, and your condition will remain secret, which leads to victory; show your dispositions, and your condition will become patent, which leads to defeat.”
― The Art of WarBy Published by the Foreign Policy Research Institute
By Nadav Tikochinsky
(FPRI) — On June 8, 2024, Israeli forces executed a hostage-rescue operation in Nuseirat, central Gaza. The Israeli operation was widely reported to have utilized civilian disguises, with some forces allegedly being transported in civilian vehicles and wearing civilian clothing.
In the aftermath, the former Executive Director of Human Rights Watch, Kenneth Roth, contended that these alleged uses of civilian disguises may have violated the laws of perfidy. This contention prompts one to consider the usefulness of disguises in combatting irregular adversaries embedded within civilian areas, and to wonder whether this rescue operation would have been possible without some form of disguise. Could it be that the laws of armed conflict (LOAC) prohibit the utilisation of disguises in this manner? This article will analyze the current state of the law and discuss the tensions and dilemmas that arise when the law confronts the realities of irregular wars. Following close examination, there appear to be compelling reasons to debate the suitability of the laws of perfidy in the context of irregular wars, and there might even be a case for limited reform.
It was suggested on multiple occasions that the Nuseirat operation may have violated the laws of perfidy. Perfidy is defined in Article 37 of the 1977 Additional Protocol (I) to the Geneva Conventions: Art. 37 states that perfidy is the act of a combatant falsely leading their adversary to believe that they are entitled to certain protections under the LOAC, with the intention of betraying this confidence. Article 37 explicitly mentions several examples of perfidious conduct, including feigning surrender, feigning incapacitation due to wounds, and feigning civilian or non-combatant status. In relation to feigning civilian status, Article 44 (3)should also be noted, as it clarifies that if combatants carry their arms openly during attacks and the deployments preceding them, there can be no argument that they have perfidiously feigned civilian status.
Belligerents in armed conflict have practiced perfidious deception to gain an advantage over their adversaries for centuries. In the early 1400s, the Tudors successfully captured Conwy Castle by sending two men claiming to be carpenters undertaking repairs. Once inside, the “carpenters” attacked the guards and opened the castle gates, allowing the Tudor forces to enter. During World War II, perfidious attacks were launched frequently. For example, a British commando, Lieutenant Bernard James Barton, was awarded the Military Cross after he successfully infiltrated a Nazi base and killed the base commandant. Barton reportedly achieved this by disguising himself as a shepherd and concealing his gun in a bundle of sticks. More recently, perfidious conduct became prevalent in the 2003 invasion of Iraq. Iraqi Fedayeen fighters are reported to have feigned surrender before attacking Coalition forces, as well as a plethora of other perfidious deceits. These examples seek to elucidate the nature of perfidy, whilst also illustrating the fact that perfidy is not a novel, or particularly rare, feature of warfare.
Crucially, however, it must be noted that perfidy is not necessarily unlawful. Art. 37 only prohibits perfidious deception when used as a means of successfully killing, injuring, or capturing an adversary. Perfidious conduct that does not cause any of these outcomes does not violate the LOAC.
Although the existence of academic debate and uncertainty should be acknowledged, there seems to be relatively strong evidence that the prohibition of perfidious killing and injuring applies to both internationaland non-international armed conflicts, and that this prohibition is a rule of customary international law. If accurate, this means that all states are bound by this prohibition, in all armed conflicts.
The laws of perfidy serve a crucial purpose within the LOAC—they are a vital pillar of “the principle of distinction.” This is the principle that military persons and objects must be distinguishable from protected persons and objects. Distinction is central to the LOAC’s humanitarian aims, ensuring that military persons can be legitimately targeted, whilst protected persons are kept out of harm’s way. Perfidy strikes at the very core of this principle, blurring the lines between combatants and protected groups, thus making it unclear who is a legitimate military target. Perfidiously feigning protected status may cause belligerents to doubt the status of individuals who are genuinely part of protected groups. This erodes combatants’ respect for the laws that accord these groups protection and could potentially lead to members of protected groups being treated with hostility, on suspicion of being combatants in disguise. “Combatants cannot be expected to honor protections accorded under the [laws of war] if their opponent continuously abuses these protections to gain military advantage.” For example, if a platoon had been deceived by adversaries perfidiously feigning surrender, then that platoon would naturally treat the next unit they encountered waving the white flag with skepticism and hostility. By flouting the sanctity of protected status, perfidy endangers protected groups, degrading the principle of distinction.
The negative impact that perfidious conduct can have on the treatment of protected groups is not merely hypothetical—it can be seen in reality. In the Franco-Prussian War and the early stages of the First World War, German forces faced real and perceived attacks from irregular guerrillas known as “Franc-tireurs” who fought in civilian attire and concealed their arms. This perfidious conduct caused the German forces to treat the civilian population with brutality. During the Sri Lankan Civil War, the Liberation Tigers of Tamil Eelam would often perfidiously feign surrender before an attack, reportedly giving rise to a practice within the Sri Lankan Army of killing surrendering fighters. The perfidy of the Fedayeen in Iraq in 2003, who frequently disguised themselves as civilians, caused the US military to authorise the temporary detention of civilians. These examples evidence the suggestion that perfidy places protected groups at risk. They are treated with hostility because perfidy engenders a suspicion that their protected status might not be genuine.
The laws of perfidy also uphold the principle of chivalry. This principle strives to instill the value of honor into warfare, and seeks to ensure that belligerents fight “fair and square.” Perfidious conduct is inconsistent with these values: It has long been considered dishonorable and “treacherous” for a combatant to exploit their adversary’s goodwill by feigning protected status and then using the protection which their adversary has accorded to them to launch an attack.
It is thereby clear that the laws of perfidy play an incredibly important role within the LOAC. This should be established before any discussion of reform. The fact that relaxing the laws of perfidy could encourage dishonorable fighting and endanger protected groups must constantly be borne in mind.
Issues with the laws of perfidy arise within the context of “irregular wars,” defined here as hostilities between conventional militaries and non-state armed groups (NSAGs), drawing upon the latest definitionpublished by the US military. Recent history has seen several irregular wars fought against NSAGs which embed themselves within civilian areas—such as Hamas and Hezbollah—seeking to obscure the distinction between combatants and civilians. For conventional militaries, clear tactical dilemmas arise when combatting such NSAGs.
Imagine a scenario in which a conventional army seeks to attack a NSAG’s cell, located within a densely populated civilian area. The conventional army could attempt a “boots on the ground” operation with uniformed soldiers. However, whilst wearing uniform, the forces would be instantly identified by local civilians and possibly even local sympathisers and fighters for the NSAG. The operation would then stand very little chance of success. The target cell would likely be alerted, allowing them to prepare for the attack, or change their location. The local population may attempt to prevent the soldiers from advancing further into the area, potentially even repelling them by force.
The uniformed soldiers could attempt an attack under the cover of darkness, somewhat like Orde Wingate’s Special Night Squads. However, uniformed operations in civilian areas, even at night-time, carry substantial risks of detection by scouts and local civilians. Moreover, operating at night brings a host of unique problems, such as disorientation and confusion, which might ideally be avoided.
Alternatively, the conventional military could opt for a precision strike on the target’s position. However, with the cell being embedded within a civilian area, an air strike would risk harming civilians and civilian infrastructure.
When faced with this tactical dilemma, a clandestine operation utilizing civilian disguises becomes a highly attractive option. The disguised forces would be able to infiltrate the area undetected and unobstructed, accessing the target without alerting it. This approach would also be more discriminate than an air-strike, potentially reducing the likelihood of civilian harm. However, due to the use of civilian disguises, this operation would likely be perfidious. If the perfidious operation succeeded in killing, injuring, or capturing an adversary, it would probably violate the LOAC. Therein lies the issue with the laws of perfidy: Conventional armies are restricted from employing tactics that might be crucial in their fight against NSAGs.
It could therefore be argued that the laws of perfidy overly restrict the operational freedom of conventional armies, leaving them unable to effectively combat NSAGs embedded within civilian areas. If the laws regarding perfidious disguises are adhered to, conventional armies may be driven to launching operations which have low prospects of success and are highly dangerous for the soldiers, or air-strikes which threaten civilians. Captain Charles Staab argues that adhering to the restrictions upon the use of disguises in clandestine operations “betrays [Special Operations Forces] to their enemy.” Relaxing the restrictions on the use of disguises might provide conventional militaries with vital flexibility in the fight against these NSAGs. This might explain why some militaries have established special units, which do not operate in uniform, to combat NSAGs embedded within civilian areas. The British military established the (now dissolved) “Military Reaction Force” during The Troubles in Northern Ireland, to operate in “those circumstances where soldiers in uniform and with Army vehicles would be too easily recognised.” The Israel Defense Forces also has specialist units, such as “Duvdevan,” which disguise themselves within the civilian population. It is paramount that these NSAGs can be combated effectively and lawfully, or else their reprehensible tactic of surrounding themselves with civilians successfully paralyses conventional armies or pushes them to subvert the LOAC.
One should acknowledge the possibility that the laws of perfidy might not apply in certain scenarios, and thus, a conventional army’s ability to use disguises might not be so restricted. A government may argue that its disguised operations are not acts of hostilities, but rather, they are law enforcement operations, which are governed, not by the LOAC, but instead, by the framework of laws applicable to law enforcement actions, which do not specifically prohibit “undercover” operations.
However, this legal possibility might not actually alleviate the challenges faced by armies seeking to combat NSAGs embedded within civilian areas. There is significant legal uncertainty and debate regarding what qualifies as a law enforcement operation, and when the “law enforcement paradigm” should apply. This uncertainty regarding which legal paradigm governs an operation means that armies usually cannot discount the LOAC’s applicability, and thus, the laws of perfidy will likely be considered, potentially having a restrictive effect on operational freedom even if the army believes that it is undertaking law enforcement operations.
In fact, it seems as though the law enforcement paradigm’s scope of application is perhaps rather restricted. There is a relatively strong body of expert opinion which holds that the LOAC generally takes precedencewhen the target of the operation is a legitimate target under the LOAC (i.e., an enemy combatant or a civilian directly participating in hostilities, rather than, for example, a mere local criminal). This suggests that the LOAC will often be the relevant framework for armies conducting operations during armed conflicts, rather than the law enforcement paradigm. For example, according to this expert opinion, the LOAC will likely govern military operations targeting a NSAG’s fighters. This reinforces the suggestion that the LOAC will usually be considered, and therefore, the laws of perfidy shall restrict an army’s operational freedom.
Furthermore, armies might deem the law enforcement paradigm to be undesirable, as it imposes strict constraints upon the use of force, “prohibit[ing] the resort to lethal force against persons, unless they pose an imminent threat to life.” Therefore, armies conducting operations might not even contest the applicability of the LOAC and the laws of perfidy.
For these reasons, the fact that the law enforcement paradigm generally permits “undercover” operations does not provide substantial assistance to armies seeking to combat NSAGs embedded within civilian areas. The LOAC will usually be considered and will often be the applicable paradigm, and therefore, the problem remains: The laws of perfidy will create significant operational challenges for armies seeking to combat these NSAGs.
However, operational challenges arguably are not a sufficiently strong reason for law reform. One should recall the crucial role played by the laws of perfidy. Relaxing restrictions and creating some lawful scope for the perfidious use of disguises during attacks would endanger protected groups, as trust in the status of genuine protected persons may be eroded. The consequences of reform could therefore be very severe, and it is questionable whether operational challenges provide a sufficiently weighty justification. Utilizing civilian disguises would probably make combatting NSAGs far easier. However, there is no requirement that military operations should be easy. The LOAC repeatedly restricts expedient military practices to ensure humanitarian protection—this is not unique. Furthermore, whilst disguises might make the conventional army’s soldiers safer, this is a problematic ground for reform. Combatants are expected to face danger as they are legitimate military targets, though armies should undoubtedly have the right to try to safeguard their soldiers. However, relaxing the laws of perfidy would compromise the safety of protected groups in order to enhance the safety of combatants. This would be a flawed trade-off. Colonel William Hays Parksechoes this: “[T]hat military personnel may be at greater risk in wearing a uniform is not in and of itself a sufficient basis to justify wearing civilian clothing. ‘Force protection’ is not a legitimate basis for wearing a non-standard uniform or civilian attire. Risk is an inherent part of military missions and does not constitute military necessity for wear of civilian attire.”
Reform, therefore, might be difficult to justify merely on the basis of making it easier to combat NSAGs. However, a balance must be struck: The law must not make it practically impossible to combat NSAGs either. Hays Parks implies that “compelling military necessity” might justify the “wear[ing] of a non-standard uniform or civilian clothing,” whilst emphasizing that “military convenience should not be mistaken for military necessity.” If it can be established that there are some situations in which the use of disguises is a necessity in the fight against NSAGs embedded within civilian areas, then there might be a strong case for reform.
One might argue that disguises are a military necessity when launching hostage-rescue operations against a NSAG embedded within a civilian area. Hostage-rescue operations will nearly always involve boots on the ground—the physical act of extracting a hostage and transporting them to safety inherently requires foot soldiers. Hostage-rescue operations also demand an element of surprise. If the hostage-taker is alert to the imminent attack, they could relocate or take preparatory countermeasures. Worse still, because the hostage-taker is often in close proximity to the hostage and holds control over them, an alerted hostage-taker could potentially harm the hostage, rendering the rescue operation a failure. “In a hostage rescue situation, a few seconds can mean the difference between success and failure; a terrorist can shoot a hostage or can detonate an explosive device inside the target area. Absolute surprise is necessary to allow the assault force those critical seconds to neutralize the threat. The loss of surprise will almost automatically mean aborting the plan.” If a hostage is held captive by a NSAG embedded within a civilian area, utilizing some form of disguise might be the only way for soldiers to remain undetected and achieve the necessary element of surprise. One may argue that there is a compelling case for reforming the laws of perfidy to account for such situations.
Furthermore, relaxing the laws of perfidy might not actually result in protected groups facing increased danger. In reality, perfidious operations are relatively common, despite the legal restrictions. It might be reasonable to suggest that the frequency of perfidious actions has already eroded belligerents’ trust in purported protected status, and belligerents already treat protected individuals with suspicion. If this is the case, then the damage has arguably already been done—protected groups may already face increased danger due to perfidy. From this perspective, reform might not majorly impact the practices of belligerents or threaten the safety of protected groups but would primarily adapt the LOAC to better reflect the modern requirements and realities of irregular warfare. This suggestion is admittedly speculative, however. Reform could potentially have significant negative effects. By conferring legal legitimacy onto these practices, reform could lead to perfidy occurring more regularly, eroding trust in protected status even further. Reform could also embolden malign actors to push the legal boundaries, compromising the principles of distinction and chivalry even more profoundly.
Reforming the laws of perfidy is a complex and delicate challenge because of their immense importance. Working to safeguard protected groups and seeking to uphold honor and chivalry in warfare, the laws of perfidy should be considered one of most significant areas of the LOAC. However, friction clearly arises when these laws are applied in the context of modern, irregular wars. It is essential that conventional armies are able to effectively and lawfully combat NSAGs which reprehensibly embed themselves within civilian areas, simultaneously flouting the LOAC and seeking to weaponize the law to their advantage. A balance must be struck between the laws of perfidy’s noble aims and the operational freedom of armies fighting irregular wars. If and where it can be shown that the perfidious use of disguises is a military necessity in the fight against NSAGs embedded within civilian areas, there seems to be a strong case for reform. For example, such a necessity arguably arises in hostage-rescue operations, potentially justifying an alteration of the laws. Overarchingly, however, any reform must be limited in nature to avoid compromising the essential role which the laws of perfidy strive to perform.
The views in this article are the author’s own.
- About the author: Nadav Tikochinsky is a Policy Fellow at the Pinsker Centre, a campus-based think tank focused on Middle Eastern affairs and international relations.
- Source: This article was published by FPRI
Published by the Foreign Policy Research Institute
Founded in 1955, FPRI (http://www.fpri.org/) is a 501(c)(3) non-profit organization devoted to bringing the insights of scholarship to bear on the development of policies that advance U.S. national interests and seeks to add perspective to events by fitting them into the larger historical and cultural context of international politics.
