Perfidy, ambush, snipers, and the COLE bombing (al Nashiri) case

Thanks to Rogier Bartels and Kevin Heller for their fascinating debate here and at Opinio Juris on whether the alleged Israeli/U.S. car-bomb operation operation that killed Hezbollah’s Imad Mughniyah in a Damascus parking lot in 2008 violated the laws of war.  (The debate began in earnest in the comments section of this post.  Rogier’s two follow-up posts are here and here.  And Kevin’s response is here.)  According to the Washington Post account, as Mughniyah approached a parked–and inconspicuous looking–SUV, Mossad agents in Tel Aviv remotely set off a bomb that they had planted in the spare tire on the back of the vehicle, sending a burst of shrapnel across a tight radius and killing Mughniyah instantly.  Assuming Israel and Hezbollah were in an armed conflict at the time, was this a prohibited case of perfidy, or a permissible form of ambush?

As I’ve previously explained, a very similar legal question about perfidy and ambush is at the heart of the allegations about the USS COLE bombing in 2000, in the pending military commissions trial against Abd al Rahim Hussayn Muhammad al Nashiri.  As in the Mughniyah case, there are antecedent questions in Al-Nashiri, discussed in my previous post, about (i) whether the parties (the U.S. and al Qaeda) were engaged in a noninternational armed conflict at the time of the bombing and, if so, (ii) whether perfidy is prohibited in such a NIAC.  But assuming the answers to those two questions are “yes,” was the COLE bombing perfidious?  The allegation there is that al-Nashiri invited the confidence and belief of one or more persons onboard the COLE that two men dressed in civilian clothing, waving at the crewmembers onboard the COLE, and operating a civilian boat, were entitled to protection under the law of war and, “intending to betray that confidence and belief, did thereafter make use of that confidence and belief to detonate explosives hidden on said civilian boat alongside the . . . COLE, killing 17 Sailors of the United States Navy . . . and injuring one or more persons, all crewmembers onboard USS COLE.”

The Damascus and COLE attacks both appear to have been classic forms of ambush, at least in the colloquial sense.  The bombs in the spare tire and on the boat were designed not to be detected until they were set off.  And both bombs were contained in unmarked vehicles that were–or would have been, but for the bombs themselves–civilian, not military, objects.

It is therefore not hard to imagine al-Nashiri’s attorneys arguing to the panel in his commissions trial that just as the bombing in Damascus was not perfidious, neither was the bombing in the Gulf of Aden.  In response, the prosecutors in the al-Nashiri case almost certainly will neither confirm nor deny any U.S. involvement in the Mughniyah killing.  But will they concede that the Mughniyah killing was perfidious (assuming the reported facts are true)–in which case they would be calling into question the legality of a killing allegedly undertaken by Israel and the United States, and expressly or implicitly saying that such forms of ambush are off-limits to the United States in the future?  Or will they instead try to distinguish the Mughniyah and COLE bombing in some legally relevant respect?

I honestly don’t know what the right answer is, and the Bartels/Heller exchange has not resolved it, far as I can tell.  As the U.S. Army Field Manual on The Law of Land Warfare acknowledges, “[t]he line of demarcation between legitimate ruses and forbidden acts of perfidy is sometimes indistinct.”  And apparently never more so than in cases of ambush such as this.  As I explained in my earlier post, an attack after feigning civilian status is not automatically a case of impermissible perfidy.  For example, if the COLE bombers had used an unmarked boat (i.e., one that had no indicia of any military use) to sneak up on the COLE in the middle of the night, without detection, that might be viewed as “feigning” a civilian status, but it would not be unlawful perfidy.  Moreover, according to the United States’ Commander’s Handbook on the Law of Naval Operations, it is even permissible, under the customary international law of naval warfare, for a belligerent warship “to fly false colors and disguise its outward appearance in other ways in order to deceive the enemy into believing the vessel is . . . other than a warship,” at least as long as the warship does not “go into action without first showing her true colors.”

Neither of these “exceptions” applies in these two cases.  The car (and its faux spare tire) and the boat were visible to the victims, who presumably assumed they were civilian objects, and in neither case were any “true military colors” displayed before the attack.

The relevant question, the one that divides Bartels and Heller, appears to be whether a particular form of ambush is perfidious–namely, one in which a civilian object is used to hide or obscure the military source of attack (in both cases here, a bomb), and the military nature of the operation is not revealed until the attack itself (i.e., there is not even a moment’s notice in which the “true colors” are displayed).

Rogiers agrees with Kevin that at least some ambushes are permissible, but he takes the view that this type, in particular–ambush from behind or within an apparently civilian object–is not a permissible ruse:  “in principle,” he writes, the sniper is not “allowed to shoot from a civilian object, such as a church tower,” at least not without first making himself known (the “true colors” requirement).

Ryan is understandably incredulous, mainly because he assumes this is what snipers and other soldiers do all the time, especially in urban warfare:

[I]f Rogier is correct, uniformed soldiers engaged in urban warfare cannot launch an ambush from any residential house, cannot launch an ambush from behind any fence attached to a private business, cannot launch an ambush from behind a burned out school bus, and so on.  In fact, according to Rogier’s theory of perfidy, no individual soldier could ever use any civilian object as cover, because doing so would conceal the fact that he intended to use the object to attack the enemy and would thereby “invite the confidence” of enemy soldiers that they could safely approach it.  I know of no state or IHL scholar who believes that tossing grenades from behind a Toyota in the middle of an intense urban firefight is perfidious.

I share Kevin’s doubts, not because I have any particular expertise on the question, but merely because I, too, have assumed (rightly or wrongly) that soldiers do this sort of thing with regularity.

On the other hand, Kevin’s view does establish a distinction that doesn’t appear to have an obvious normative justification:  Everyone agrees (I think) that if the sniper actually presents himself to the target as a civilian and does not show his “true colors” until the bomb or rifle goes off, that is perfidious.  If such conduct is prohibited, however, why, then, should it be permissible for that same sniper to lurk, and shoot from, behind the (civilian) Toyota?  In both cases, after all, the target was induced to rely upon the presumed civilian status of all that he can see.  Indeed, in both cases the target exercised forbearance in reliance upon the assumed civilian status of all he could see, and the damage occurred by virtue of that forbearance–i.e, the feigned civilian status was a proximate and but-for cause of the killing.  (See Sean Watts’ article for more to this effect.)

It’s truly a puzzle–and I’m not sure that any of the authorities cited by Kevin and Roger address or resolve it directly.

Finally, what about “the wave”?  There appears to be at least one factual difference between the Damascus and COLE cases:  In the latter case, but not the former, not only was the bomb itself not disclosed (i.e., hidden in a civilian object), but it is alleged that those who set off the bomb also pretended to be civilians when they waved to the service-members on the COLE.  The bombers in the Mughniyah case, by contrast, did not pretend to be anything, because they were over 200 kilometers away, in Tel Aviv.  I’m not sure whether or why this does or should make a legal difference–after all, in both cases the target relied on the fact that everything he could see appeared to be civilian in nature, and thus protected from attack under the laws of war.  Would the Mughniyah operation really have been transformed from a lawful ambush to prohibited perfidy if, for example, the bomber had walked by Mughniyah in civilian clothing–even waving to him–a few seconds before detonating the blast?  (Conversely, if the individuals on the boat approaching the COLE had not appeared on deck and waved before the bomb went off, could it really be the case that the prosecution would acknowledge it had no basis for a perfidy charge?)  In other words, when Article 37(1)(c) of the First Protocol to the Geneva Conventions offers the “feigning of civilian, non-combatant status” as an example of perfidy, is it possible that this refers only to the feigning of such status by an individual, and not an object?  It’s not obvious why that should be so.

In any event, we’ll see whether the prosecution in the al-Nashiri case endeavors to make something of this distinction.  In the meantime, perhaps Just Security readers more knowledgeable than I will be able to weigh in further. 

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About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).