Killing With Military Equipment Disguised as Civilian Objects is Perfidy, Part II

On Friday, I concluded that modifying a civilian-looking vehicle into a military object to attack an adversary could indeed amount to perfidy during an international armed conflict. This question was triggered by Ryan Goodman and Sarah Knuckey’s post on the 2008 killing of Hezbollah’s Imad Mughniyah by the US and Israel where, among other things, they ask how using a car bomb differs from certain other means and methods of surprise attacks. I will briefly address them below.

“Aerial attacks on quiet areas” or “launching a missile from above”

The difference between a bomb in a civilian vehicle and an aerial missile attack seems rather clear. The latter is only legal when launched from a military platform, identifiable as such. Military aircraft need to be properly marked and “[t]he feigning of the status of a civilian aircraft” is perfidy. The person on the ground, who is hit by the missile, may not be able to see the difference between a civilian airplane and a military one, but that does not affect the illegality of firing from the former. To stay closer to Friday’s case study: it makes no difference whether the missile is launched from a manually operated aircraft or remotely from a combat drone. Both need to be marked as a military aircraft.

Sniper attacks and ambushes

A person hit by a sniper will normally not have seen the bullet coming or have seen who shot it. In such a situation, it is unlikely that the party to which the person shot belongs would take any countermeasures that would negatively affect the protected persons. After all, that party does not know who fired or from where. However, that does not mean that the sniper is permitted to disguise himself as, for example, a Red Cross delegate or civilian. Nor is he, in principle, allowed to shoot from a civilian object, such as a church tower (see the positive obligation included in Article 58 of First Protocol Additional to the 1949 Geneva Conventions (AP I)). His actions are subject to relevant provisions of international humanitarian law (IHL). In a related vein, ambushes are limited by IHL. Kevin Jon Heller and W. Hays Parks both referred to the legality of using an ambush. Ambushes are indeed permitted, but they remain subject to regular IHL restrictions. Indeed, as former military lawyer and eminent IHL scholar A.P.V. Rogers observes: an “[a]mbush is a legitimate tactic, … provided it is carried out by members of the armed forces in uniform. It is not legitimate if carried out by soldiers masquerading as civilians or by civilians. That would amount to the war crime of treachery or perfidy.” And the no less eminent Frits Kalshoven agrees.

IEDs

It was also asked why “setting an IED down the road” would not be banned, while using a car bomb would be. Without elaborating on the legality of using IEDs, which in many instances (for example, when pressure plate IEDs are used) may be contrary to IHL, the following may be noted. Hiding an IED beside a road and using (natural) surroundings, rather than an actual civilian object, to hide the explosive is more similar to the classic booby-trap of a wire across a path in the forest attached to an explosive. In such cases, the essential requirement for legality is that a distinction can be made between legitimate targets and those who cannot be targeted. Although it could be argued that vegetation or a bank of sand alongside a road are also “civilian” because they would not appear to constitute a military under normal circumstances, it is clear that there is a difference between such vegetation and a civilian object like a house. For example, the former is not counted towards collateral damage but the latter is. In its explanation of ruses of war, the Israeli LoAC Manual differentiates making something appear as objects in the “natural surroundings (as opposed to the human surroundings).” IHL recognizes a certain protection for the environment, but only when it comes to large-scale damage to (or use of) the environment. Not when it is used to target (or ambush) the enemy.

Booby-Traps and Other Devices

Ryan and Sarah also assess the legality of car bombs under the (amended) Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (CCW Protocol). As is clear from Friday’s post, my reasoning is based on the language of AP I and the rationale behind the prohibition of perfidy, not on any possible violation of the CCW Protocol.

Significantly, the CCW Protocol’s limited list of prohibitions on the use of booby-traps and other devices is “[w]ithout prejudice to the rules of international law applicable in armed conflict relating to treachery and perfidy.”

Ryan and Sarah correctly note that ordinary civilian vehicles are not on the list. However, the list does not aim to prevent perfidious targeting of combatants or to preserve the effectiveness of IHL’s protective regime. Rather, it serves to prevent civilians from accidentally being injured or killed by a booby-trap or other device. For example, a child picking up a booby-trap disguised as a toy. In addition, making an explosive look like a children’s toy implies a deliberate intent to target children or civilians, as a toy would not be the object of choice for targeting a combatant. The lack of specific mention in the CCW Protocol then does not seem to support the argument that planting bombs in civilian cars is permissible. Moreover, the protocol states:

It is prohibited to use [booby-traps or other devices] in any city, town, village or other area containing a similar concentration of civilians in which combat between ground forces is not taking place or does not appear to be imminent.

No such combat took place in the case study we examined last Friday. The same paragraph provides for two exceptions to this general rule, the second of which states that the aforementioned prohibition does not apply if “measures are taken to protect civilians from their effects, for example, the posting of warning sentries, the issuing of warnings or the provision of fences.” As reported in the Post, extensive testing was done by the CIA on the weapon used in Mughniyah’s killing in order to minimize potential for collateral damage.

The precautions taken by the US and Israel may well qualify as the aforementioned “measures,” thus allowing for an exception. However, the use of “for example” shows that the measures mentioned in Article 7(3)(b) do not constitute an exhaustive list. Indeed, the three examples provided could also be looked at differently. Namely, all three entail some form of express (visual) warning that serves to actively make people aware of the presence of the an explosive device, seemingly to prevent the wrong person(s) from being hit. Hiding a device in a civilian area or city in which no active hostilities take place, without such warnings, then is the opposite of what the exception to the CCW Protocol aims to achieve.

To conclude

Article 37 of AP I refers generally to the “protection under the rules of international law applicable in armed conflict.” IHL affords protection to both civilians and civilian objects. On the basis of the language of Article 37, as well as the rationale behind the prohibition of perfidy, it is not evident why it would be prohibited for a combatant to disguise himself as a civilian and carry out an attack, but he would be allowed to disguise a military object as civilian and use that object for an attack. It may be recalled that the Irish delegate, in explaining the amendment that was ultimately adopted as Article 37, stated that

since many of the articles of the Geneva Conventions and the Protocols depended for their effectiveness on the extent to which combatants had the will to apply them … [and] was dependent on the trust of each combatant in the honesty with which the other side would respect and apply the rules.

The effectiveness of the provisions providing protection to civilian objects are just as dependent on the will of combatants to apply them, as the ones mandating protection for civilian persons.

Even if the prevailing view would be that targeting the enemy with weapons disguised as civilian objects does not amount to perfidy, it is submitted here that — de lege ferenda — it should. The protection of the civilian populations is already significantly put under pressure in contemporary conflicts in which armed groups use illegal tactics such as the use of human shields. Regular armed forces, even when engaged in asymmetrical armed conflicts, should not further jeopardize this protection by abusing protection to be afforded to civilian objects for their offensive operations. The above mentioned examples show the negative impact such use has on the effectiveness of IHL and it should thus be avoided.

Editor’s Note. This is the second post of a two-part series by the author examining this issue. His first post is here. A response to these posts by Kevin Jon Heller can be found here 

About the Author(s)

Rogier Bartels

Legal Officer in the Trial Division of the International Criminal Court, Research-Fellow at the Military Law Section of the Netherlands Defence Academy, Adjunct-Lecturer at the Hague University of Applied Sciences, Co-Editor of the Armed Groups and International Law Blog The views expressed in this post do not necessarily reflect those of the aforementioned institutions.