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.
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