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| ABC News/YouTube screenshot |
Factual circumstances reported by the Times do not prove that perfidy was committed, even if the correct criteria had been articulated.
A secret military aircraft painted to look instead like a civilian plane. Multiple attacks that killed all suspected narcotraffickers on a boat sailing on the open ocean somewhere in the Caribbean. Incendiary allegations that the attack could amount to a war crime.
It’s a story with all the ingredients necessary to spark a media frenzy and corresponding public outcry denouncing more seemingly unlawful conduct carried out by agents of the Trump administration.
This is precisely what happened after The New York Times published a sensational news report last week claiming the very first known narcotrafficker boat strike may have constituted the war crime of perfidy. Within a day, media outlets such as Huff Post, Al Jazeera, The Hill, AP, ABC News, and more ran separate stories involving the incident. Each subsequent article referred to the story reported by the Times the previous day, and each one reiterated the “perfidy” claim.
But the allegation that the attack may have constituted perfidy is without merit. Not only does this initial story misrepresent the standard established in international law for perfidious conduct, the factual circumstances reported by the initial story fail to authenticate the claim that perfidy was committed even if the correct criteria had been articulated.
By misleading the public into believing Department of War personnel may have engaged in criminal conduct, sensationalist news stories such as coverage of this allegedly “perfidious” attack artificially erode public trust in the military and fuel unjustified criticism of the current administration.
To understand why the initial attack on suspected narcotraffickers on the high seas did not amount to perfidy, it is helpful to clarify exactly what the international law standard is and how it is addressed in U.S. military doctrine.
Defining Perfidy
The starting point for the analysis, like many similar inquiries, is the Department of Defense Law of War Manual. First issued in June 2015 and now on its 4th edition, this publication “provides authoritative legal guidance for DoD personnel in implementing the law of war and executing military operations.”
As the manual indicates, perfidy consists of “acts that invite the confidence of enemy persons to lead them to believe that they are entitled to, or are obliged to accord, protection under the law of war, with intent to betray that confidence.” The manual notes “feigning civilian status and then attacking” is one potential example of perfidious conduct, yet doing so “to facilitate spying or sabotage” is listed as an example of conduct that does not constitute perfidy.
Although the United States has not ratified Additional Protocol I (1977) to the 1949 Geneva Conventions, this treaty also includes “intent to betray” the enemy’s confidence as an element of perfidy. This is a definition the Law of War Manual directs the reader to “consider.”
Whether referring to U.S. military doctrine or relevant sources of international law, then, intent to betray an adversary’s confidence is required to establish that perfidy has been committed.
Intent Not Established --->READ MORE HERE
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| AP Photo/Alex Brandon |
The U.S. may have committed an act of perfidy in one of its Caribbean boat strikes last year, according to accusations reported by The New York Times.The outlet, citing officials briefed on the matter, reported on Monday that the Pentagon used an aircraft that appeared to be a civilian plane, with its munitions out of view, when it attacked a boat in September.
The alleged drug-trafficking boat was struck four times — twice to kill those on board, and twice to sink it — by the U.S. military, an official told The Hill in December. Eleven people were killed, and the attack in the Caribbean has been publicly scrutinized.
Last month, several Republican lawmakers demanded more details about the follow-up strike that ultimately killed survivors who were clinging to the wreckage. Sen. Mike Rounds (R-S.D.), a member of the Senate Intelligence Committee, was among those who said that the strike appeared to violate international law.
Former Air Force Secretary Frank Kendall described the attack that killed the survivors as “a textbook example of a war crime.”
Secretary of Defense Pete Hegseth said last month that the nation’s strikes against the alleged drug-smuggling boats are “lawful” and “intended to be ‘lethal, kinetic strikes.'”
The New York Times, referring to legal specialists, said that if the plane used in the first attack on the boat appeared civilian, as officials who spoke with the outlet described, it could be an element of “perfidy.”
In the context of international law, the International Committee of the Red Cross defines perfidy as “acts inviting the confidence of an adversary to lead him to believe he is entitled to, or is obliged to grant, protection under the rules of international humanitarian law applicable in armed conflict, with intent to betray that confidence.” It lists examples such as pretending to surrender, faking wounds or illness, or “feigning civilian or non-combatant status.”
“Under international humanitarian law, it is prohibited to kill, injure or capture an adversary by resort to perfidy,” the guide adds.
“Ruses of war,” however, are not prohibited, a guide from Doctors Without Borders explains. --->READ MORE HERE
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