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The condemnation of perfidy is an ancient precept of the laws and customs of war derived from the principle of chivalry. It has remained a cardinal principal in modern times, because perfidious abuse of protections under the law of armed conflict tends strongly to degrade the protections and restraints developed in the mutual interest of all Parties, their combatants and civilians.1
I. Introduction
Parties to an armed conflict can be destructive, cunning, and merciless in advancing their interests, but they may not act in bad faith. Their actions are guided by the collective wisdom of the bulk of nations, encapsulated within international conventions and norms governing the conduct of warfare. The rules of warfare demand respect and safeguard this respect through the condemnation of perfidy.
This article examines perfidy in international armed conflict and addresses a gap in how perfidy is criminalized. This gap threatens to weaken the protections afforded by the law of armed conflict because it allows some acts of perfidious conduct to go unpunished. As will be discussed, the international community should bridge the gap by treating all forms of perfidy as grave breaches. By doing so, the international community would bolster the purpose of the law of armed conflict-namely, to humanize warfare to the maximum extent possible.2
Part II of this article starts by differentiating between unlawful perfidy and lawful ruses and ends by traversing the sources of law prohibiting perfidy. Part III illustrates a gap that exists with respect to how perfidy is criminalized and discusses the debate over whether some types of perfidy are even prohibited. Part IV describes the magnitude of the problem raised by the gap in the criminalization of perfidious conduct and explains how the gap threatens to weaken the protections of the law of armed conflict. Part V argues for the need to bridge the gap by treating all types of perfidious conduct as grave breaches. Finally, Part VI concludes that bridging the gap by prosecuting all instances of perfidy as grave breaches is in the best interests of civilians and combatants.
II. Perfidy in International Armed Conflict
Although perfidious conduct raises concerns in all types of armed conflict,3 this article focuses on perfidious conduct that occurs during international armed conflict. Before describing the...