Permissible Ruse or Perfidy — the Colombian Hostage Rescue

by Duncan Hollis

The media is awash in stories about the stunningly successful rescue operation mounted by the Colombian military that freed 15 long-held hostages from FARC forces. A key part of the operation apparently involved convincing FARC rebels to move the hostages to meet with an “international mission” as the set-up for getting the hostages aboard a Colombian military helicopter and flown to safety. Here’s how CNN describes it:

The agents told their FARC comrades that an “international mission” — such as the Red Cross or a U.N. delegation — was coming to visit the hostages . . . At the appointed hour, an unmarked white helicopter set down in the jungle along the trekkers’ path. Colombian security forces posing as FARC rebels jumped out, some wearing shirts emblazoned with the likeness of revolutionary icon Che Guevara. The helicopter crew told the 60 or so real rebels that the chopper was going to ferry the hostages to the meeting with the “international mission” . . .

All 15 hostages were handcuffed and placed aboard the helicopter, along with two of their guards, leaving the rest of the FARC detachment on the ground. Once the chopper was up and safely away from the landing zone, the fake rebels persuaded the real ones aboard to hand them their weapons. Moments later, both rebels were on the floor of the aircraft, cuffed and blindfolded by their erstwhile comrades . . . A crew member turned and spoke to the hostages. “We are the national military,” he said . . . “You are free.”

From a legal standpoint, I wonder whether (and how) Colombia’s operation complied with its obligations under international law. In an international armed conflict, Colombian forces would be prohibited from committing perfidy—the killing, injuring, or capturing of adversaries by inviting them to believe that they are entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with an intent to betray that confidence. According to Article 37 of Additional Protocol I to the Geneva Conventions (AP I), perfidious acts include feigning civilian/noncombatant status or feigning “protected status” by using signs, emblems or uniforms affiliated with groups such as the Red Cross or the UN. Article 39 also prohibits states from using an adversary’s own “emblems, insignia or uniforms . . . while engaging in attacks or in order to shield, favour, protect or impede military operations.” In contrast, Article 37 does not prohibit states from using “ruses” — acts that do not feign protected status, but which seek to mislead adversaries and cause them to act recklessly, such as by using misinformation or decoys.

A threshold question, of course, is to what extent the perfidy/ruse distinction applies to the Colombian-FARC conflict. I assume (subject to correction by those more expert in IHL) that AP I itself does not apply. Although Colombia is a party, the FARC conflict appears to fall outside the treaty’s scope. AP I applies to international armed conflicts covered by common article 2 of the Geneva Conventions and those armed conflicts “in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.” None of those scenarios seem applicable to the FARC’s fight with the Colombian government (nor do I believe U.S. financial or logistical support to the Colombian government somehow converts this conflict into an international one). In contrast, Additional Protocol II to the Geneva Conventions may apply as it governs classic civil wars (although the tendency of the United States and Colombia to label the FARC as terrorists suggests there’s resistance to the civil war label itself). That treaty, however, contains no prohibitions on perfidy.

That leaves the perfidy question to rest on customary international humanitarian law. The International Committee of the Red Cross’s lengthy study of customary IHL found perfidy to apply to both international and non-international armed conflicts, suggesting Colombia could not commit perfidy even against the FARC. I’d note, however, that if Colombia follows the U.S. approach, they could challenge whether the ICRC’s findings actually reflect the customary rules.

But assuming Colombia was prohibited from perfidy (but allowed ruses) in its rescue mission, did its operation comply with those rules? On the surface, it seems that they did. Perfidy only prohibits the killing, injuring, or capturing of adversary forces, so the use of deception in actually freeing the hostages does not seem to fall within the prohibition. In contrast, where the operation involved the capture of two FARC members, that would implicate the perfidy ban. To figure out if their capture came about because of a ruse or perfidy, however, requires us to know more about the conduct of the operation itself. The media has been careful to emphasize the Colombian military helicopter that made the rescue was “unmarked,” suggesting Colombia did not use any protected emblems like those of the UN or the ICRC that are explicitly prohibited. Similarly, the media has not reported Colombian forces using any distinctive FARC emblems or uniforms—they emphasize Colombian agents donning “Che Guevara” shirts, but I’d doubt those qualify as a FARC “emblem, insignia or uniform.” (I’m assuming here that the AP I Art. 39 prohibition on posing as the enemy extends to internal armed conflicts such as this, but I’ll concede that assumption might not hold up under closer analysis). Similarly, there’s no evidence that Colombian forces feigned civilian or non-combatant status at any point, but that might be a function of the relative lack of detail over what happened at this point.

The Colombian military did, however, apparently take advantage of the “international mission” moniker to lure the FARC forces into unwittingly transferring the hostages to the Colombian military. If I were the UN or the ICRC, I’d want to know how specific Colombia was with its story. After all, the point behind the perfidy prohibition is to protect the neutrality of certain actors (and actions) to minimize human suffering in armed conflicts. If folks like the FARC will no longer trust or use the Red Cross as an intermediary for releasing hostages (as they apparently have in the past), what does the future hold for the hundreds of lower-profile hostages still in FARC hands? On the other hand, if it turns out that Colombia conducted its operation with an eye towards IHL and can explain how it avoided perfidy in its actions, that fact might provide welcome evidence that customary rules do operate in internal conflicts and, more generally, support the notion that IHL impacts state behavior. Either way, though, I’m left looking for more information. I’d welcome reader in-put with further facts or analysis.

http://opiniojuris.org/2008/07/03/permissible-ruse-or-perfidy-the-colombian-hostage-rescue/

10 Responses

  1. Duncan, I had been thinking about this myself – excellent discussion!

  2. The other question I would ask about this focuses on the other side of the equation – not the Columbian government’s behavior, but instead that the FARC was engaged in a war crime, hostage taking (and keeping). The FARC guerrillas holding the hostages were, at that very moment, engaged in an international crime. Does the Columbian government have some obligation not merely to rescue the hostages, but to take the hostage takers into custody in order to charge and try them? And how does that interact with whatever obligations they might or might not have under perfidy prohibitions? So, for example, this might be considered a rescue operation to end a war crime, not combat as such. Are the rules different? Ordinarily I would say not, at least not for combat military forces, but the fact that it was a rescue that ended a war crime might alter the view of whether the capture of guerrillas engaged, at that very moment, in the commission of a crime, would alter the question of perfidy which, after all, is about combat in which the whole point of a concept of perfidy is that the other side’s soldiers are fighting “within the rules” and are entitled to rely on the sanctity of such things as flags of truce. When the other side is engaged, at that very moment, in war crimes, and your operation is undertaken to end a war crime, are those guerrillas-criminals entitled to the protections of perfidy, at least to their full extent? I am not committing myself to a view here, but I think the discussion needs to factor in that this was more than a combat operation against guerrillas operating according to the laws of war in internal armed conflict.

  3. Duncan,

    As someone who focuses on IHL in his work, I think your discussion is excellent. You demonstrate well the complexities and ambiguities of IHL. I believe the operation’s exploitation of IHL ambiguities might indicate two things. One, it indicates at least a nod to adherence to IHL due to the lack of the use of a protected emblem or enemy insignia (but see the perfidy discussion below). Two, it indicates a sophistication in planning and executing the mission that might evidence the direct or indirect involvement of another country. On this score, though, I note that the U.S. has been providing support to the training of Columbian military officers and lawyers for some time. See, for example, the story here.

    As you note, the recent ICRC report on customary IHL [hereinafter ICRC Cust. Rules] concludes that the rules of both Art. 37 and 39, AP I apply in both International AC and AC not of an international character. On that score, see ICRC Cust. Rules 57-65. Further, the Military Commissions Act (MCA) supports – at least – the applicability of perfidy restrictions to all armed conflict as a matter of CIL. (See the MCA and specifically 10 U.S.C. § 950v(b)(17) – supporting to its applicability to “hostilities” against the U.S. regardless of the character or nature of those hostilities. The MCA declares “[t]his chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission.” 10 U.S.C. § 950p(a).)

    The definitions of Art. 37 AP I and the MCA (see 10 U.S.C. § 950v(b)(17) and 10 U.S.C. § 950v(a)(2)) would not appear to encompass feigning the status of an adversary. The MCA does not appear to have adopted an Art. 39, AP I equivalent provision – except under the guise of its definitions of an unlawful combatant/unprivileged belligerent and the offenses of murder and destruction of property (and related conspiracies) in violation of the laws of war [10 U.S.C. § 950v(b)(15), (16)]. Therefore, it may in fact be a rule of CIL under the MCA as well. I raised the complexities of the related issues of perfidy and “unlawful combatant” status in my article regarding Hamdan’s military commissions case at J Int Criminal Justice 2008 6: 371-383 (May issue).

    The definition of perfidy in both AP I and the MCA, as discussed below, relies on ‘protection under rules of international law.’ These international rules do not discuss “protections” owed friendly forces. It is therefore necessary, in my opinion, to differentiate perfidy from the restriction against using the flags or military emblems, uniforms or insignia of an adversary. They are clearly related concepts of deception as Art. 39(3) of AP I makes clear. They merely betray different “confidences.”

    This leaves us, as you point out, with the issue of the use of the “moniker” of a protected entity. I note that a white helicopter might commonly be marked with either a blue “U.N.” or a red cross (or red crescent, or other protected emblem). Does that make it a ‘partial emblem’ subject to the AP I or ICRC Cust. Rule 59, 60 restrictions? This is a difficult question that demonstrates the importance of considering both the general and specific prohibitions in IHL.

    The nature of this problem rests in the fact that “ruses of war” is often ‘negatively’ defined – see ICRC Cust. Rule 57 (“Ruses of war are not prohibited as long as they do not infringe a rule of international humanitarian law.”). It also rests in the focus on specific prohibitions of IHL, including those regarding “emblems” (discussed above and below). Art. 37 of AP I, however, contains a positive, general definition of perfidy which appears to prohibit the conduct here. Art. 37 provides that “[a]cts 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, shall constitute perfidy.” This MCA adopted this definition of perfidy. See 10 U.S.C. § 950v(b)(17). The ICRC failed to include its specifics in its IHL CIL report – unless it is somehow incorporated in the use of the word “perfidy” in Rule 65 – focusing instead on a list of more specific deception prohibitions on emblems and the like in the Rules 57-64.

    Under this AP I/MCA definition, I believe the rescue mission, as currently described, was an act of perfidy under the U.S. and probably the ICRC understanding of CIL. The combined acts of the “international mission” cover story and white helicopter were designed to lead the adversary to believe that it was “obliged to accord, protection under the rules of international law applicable in armed conflict.” They therefore constitute perfidy because they resulted in the capture of two FARC members. Clearly, had potential international protected status not been exploited in this way, the two would not have been captured. It therefore meets the intent and the letter of the AP I rule that the MCA explicitly and ICRC IHL CIL report implicitly recognizes as CIL.

    The question of whether there could or will be any consequences or remedies for this conduct is – of course – a separate one.

    Hope this helps. I guess I must claim rights on this analysis in case I decide to publish it somewhere other than here.

    John C. Dehn

  4. Kenneth,

    IHL is generally not concerned with the conduct of the victim of a war crime. The fact that both sides might have been in violation of IHL does not change the analysis I proffer above.

    I would equate your concern to the question of the legality of the capture. That the FARC members might be subject to capture and trial for alleged participation in a war crime does not allow or affect the means that might be used to capture them. Under the AP I/MCA definition of perfidy, as I discuss above, the purpose of the deception is not relevant. It is the deception, and the future risk it creates to protected entities, that is the reason for and focus of the prohibition.

    Perfidy does not apply only to “combat” or perhaps you mean “attacks”. The prohibition is much more general and focuses only on conduct in the course of an armed conflict -in this case feigning protected status – and results – kill, injure, or capture of an enemy/adversary. Although IHL is concerned with intent, indeed, the perfidy definition requires intent to betray the confidence of the enemy in the protected status being feigned. However, intent to “right a wrong” is generally treated negatively in IHL. See, e.g., ICRC Cust. Rules 144-148, specifically 148 (Parties to non-international armed conflicts do not have the right to resort to belligerent reprisals).

  5. I should qualify the above by stating that a victim’s conduct is relevant to a war crime as a factual and legal matter regarding whether an act meets the elements of a war crime (such as that civilian protected status applies unless and for such time as that civilian directly participates in hostilities). Such conduct, however, does not create a “justification” under IHL for another violation. It is the latter aspect to which I was referring in my post immediately above.

  6. There are reports coming out that the rescue operation was the result of an exchange for twenty million dollars (which of course it is being denied not only by the Colombian authorities, US embassy, and even Ingrid Betancourt), or that it was a release already planned by the FARC (in this case, the Colombian military took advantage of the info, and intercepted the hostages in order to take credit for it)

    In Spanish

  7. With the addition of the comment of “cruz del sur” (thank you for the link which was very helpful even for someone with my broken Spanish) I guess the question that arises is which of these story lines is the true one. Is it the “ruse of war” version or is it the exploitation of the quid pro quo for a $20 million payment? Given that the official line is the “ruse of war” line, from habit, I tend to believe it is the $20 million payment line.

    I hope we all meditate on how under either version we are being manipulated – like in the Jessica (I forgot her last name) case in Iraq and the rescue of her.

    I fully expect that the $20 million was paid by the French by the way. Having seen the cases of French hostages in Lebanon in the recent past, it would be perfectly consistent with what the French government would do.

    Nothing new under the sun.

    Best,

    Ben

  8. Professor Davis, I still haven’t excluded any of the three possibilities. However, I am leaning towards the theory that the Colombian Military intercepted them in order to take credit. The reason why, is that the FARC was carrying a unilateral release until Reyes was killed in Ecuador. Also Governor Richardson had a meeting with Chavez, and asked him to intercede to the FARC for the release of the hostages. If I am right, the FARC will probably have a statement release pretty soon. If they keep quiet, then I would lean towards the ransom theory.

    As for the rescue, it is always possible, but I just can’t believe that whoever was in charge, would allow just anybody to approach a camp, (and even less approach the hostages) without authorization from the higher ups, thorough their usual communication channels. That just doesn’t make sense to me.

  9. Duncan,

    I too had been thinking about this problem – probably as a result of reading too many descriptions of perfidy in C.S. Forester novels when I was young…

    Great post!

    -Dave

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