Responding to Rogier Bartels About Perfidy at Just Security

by Kevin Jon Heller

My friend Rogier Bartels published two excellent posts at Just Security over the past few days (here and here) in which he argues that it is inherently perfidious to launch an attack from a military object disguised as a civilian object. Just Security has just posted my lengthy response. Here is how I conclude the post:

At the risk of sounding like an armchair psychologist, I’d like to suggest an explanation for why an excellent scholar like Rogier adopts a theory of perfidy that, in my view, cannot be correct. The problem, I think, is the nature of the attack that gave rise to our lively debate: a bomb placed in a privately-owned car in the middle of a generally peaceful city. Such an attack simply doesn’t seem fair; of course a “combatant” — even a high-ranking member of Hezbollah — is entitled to feel safe walking by a car on “a quiet nighttime street in Damascus after dinner at a nearby restaurant,” as the Washington Post put it. Indeed, like Rogier, I am skeptical that IHL even applied to the bombing.

But just as hard cases make bad law, unusual situations generate problematic rules. Once we try to apply Rogier’s theory of perfidy to the “normal” combat situation, its plausibility falls apart. Although the same military/civilian distinctions apply, those distinctions take on a very different sheen during street-by-street, house-by-house fighting in a city virtually destroyed by armed conflict. You expect to be able to walk by a Mercedes in a Damascus suburb without being blown up, even if you are a soldier; but if you are a soldier in downtown Fallujah, the last thing you are going to do is walk casually past that burned out, overturned Mazda sitting in the middle of the city’s main road. Yet that Mazda is no less a civilian object than the Mercedes, and as long as IHL applies there is no legal difference between planting a bomb in the Mazda and planting a bomb in the Mercedes. Either both car bombs are perfidious or neither of them is. And it is very difficult to argue that planting a bomb in a burned-out, overturned Mazda in downtown Fallujah — or placing an ambush behind it, or using it for cover, or blending into it with camouflage, or placing a landmine near it — is an act of perfidy.

I share Rogier’s concern with the Israel/US operation that killed the Hezbollah leader, and I understand his unease — from a civilian protection standpoint — with many of the kinds of attacks I’ve discussed in this post. Any proposal to expand the definition of perfidy, however, must acknowledge the (ugly) reality of combat, particularly in urban areas. The general distinction between perfidy and ruses of war is a sensible one, even if we can — and should — debate precisely where the line between the two is drawn.

I hope readers will wander over to Just Security and read all three posts — as well as the original discussion that led to them.

http://opiniojuris.org/2015/03/24/responding-to-rogier-bartels-about-perfidy-at-just-security/

5 Responses

  1. Thanks for the link Professor Heller. The story is fascinating as was the legal discussion surrounding it. I would have completely missed it.

  2. I think at the end of the day people are simply making too much of the “it doesn’t seem fair” aspect of perfidy. The law of perfidy doesn’t exist to ensure that war is fought in a “sporting” way; from that viewpoint it “wouldn’t seem fair” if Mugniyeh were killed while walking on that “quiet night time street” by Hellfire missile, which Prof. Bartels acknowledges is perfectly ok.

    The law of perfidy exists not for the protection of combatants, but for the protection of civilians. A combatant who feigns being a civilian puts actual civilians in danger; once attacked by a putative civilian, opposing forces are likely to be far more trigger happy when the next one comes walking by (even if the next one actually is a civilian). Using a parked car to camouflage a bomb does not put civilians in danger (beyond, obviously, any danger from the blast itself). It is unlikely, after all, that the attacked party would respond to the blast by attacking every parked car on the off chance that it, too, contained a bomb (as, indeed, Hezbollah has not).

    Hence, perfidy applies to people feigning civilian or protected status (a civilian looking driver of a car bomb, for instance, or combatants riding around in ambulances), but not to camouflaging military equipment so that it does not appear to be military.

  3. Thanks for the interesting post. At first, it looked like you were writing “about perfidy at Just Security,” which might have been even *more* interesting …

  4. Ed,

    !

    K.

Trackbacks and Pingbacks

  1. Encontrará más información

    Opinio Juris » Blog Archive Responding to Rogier Bartels About Perfidy at Just Security – Opinio Juris