Since the beginning of its conflict with al Qaeda, the United States has faced an enemy that relies on its ability to blend into the civilian population to mount attacks and sustain its war-fighting efforts. Disguised as civilians, members of the group have gained proximity to valuable targets and conducted deadly attacks they could not have achieved if they wore their terrorist affiliations openly. In Iraq, Afghanistan, and elsewhere, other terrorist and insurgent groups also rely on similar tactics to inflict maximum damage. Suicide bombers use civilian objects to attack civilian targets, including markets, mosques, and other public places. Combatants hide amongst the local population, cloaking themselves in the legal protections afforded civilians. Facing these enemies in dense, urban environments, U.S. forces often have to work within and rely on their civilian surroundings to attack these combatants and to protect themselves.
These battlefield realities raise questions about compliance with the law of armed conflict—particularly with the prohibition on perfidy and its application in these contexts. Article 37 of Additional Protocol I of the Geneva Conventions defines perfidy as any act “inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Effectively, this provision prohibits parties to armed conflicts between states (i.e., international armed conflicts or “IACs”) from abusing legal protections afforded civilians and some combatants in order to harm the enemy. Examples of this crime include feigning surrender or injury to lure an enemy into an attack or feigning civilian status to gain and betray the confidence of the enemy.
Though both customary international law and Additional Protocol I prohibit perfidy in IACs, whether and to what extent this prohibition applies within the context of non-international armed conflicts (NIACs) remains relatively unclear. NIACs, such as the United States’ conflict with al Qaeda, include conflicts between states and non-state actors or between non-state actors only. To clarify the extent to which the perfidy prohibition applies in this conflict context, this article begins by presenting the legal and practical arguments for and against applying the prohibition on perfidy to NIACs and subsequently assesses the prohibition’s scope using the recent U.S. military commission case against the U.S.S. Cole bombers and the CIA’s involvement in a Mossad car bomb operation that killed a Hezbollah leader. From this analysis, it is clear that the international legal prohibition on perfidy extends to NIACs through customary international law and that a critical component of the crime is the attacker’s abuse of law of war protections.