Posted by Brad @ 9:50 am on August 7th 2008

Perfidy and Colombia

We of course reported on the freeing of the American hostages in Colombia, and the daring and pretty ingenious rescue the Colombian government devised and executed that precipitated it. We have been as central in the online fight to get our hostages back as anybody—much more so in truth.

But, in the glory of getting them back, one thing that had honestly not occurred to me at the time:

The International Red Cross said Wednesday that Colombia broke the Geneva Conventions by deliberately using its humanitarian emblem during the covert military mission that freed Ingrid Betancourt and other hostages…. “It seems to be a deliberate improper use of the emblem,” said Anna Schaaf, an ICRC spokesman. She said this was a violation of international law.

Use of the Red Cross symbol in a military operation violates the first Geneva Convention because it could damage the relief group’s neutrality in conflicts, endangering medical personnel on the battlefield who are using the red cross for protection.

In the July 2 rescue, a team of Colombian military intelligence agents posing as members of a fake international humanitarian group airlifted the hostages safety, including Betancourt, a former Colombian presidential candidate, and three U.S. military contractors….

Now, fat chance the Colombian government is going to give a toss what the Red Cross says on this matter. And Andy McCarthy will not be alone in blowing a big fat raspberry on the whole notion of it. And, quoting WSJ’s Best of the Web, this attitude probably sums up most people’s immediate response:

“Maybe we’re dense, but it seems to us that rescuing civilian hostages from a terrorist group is a higher humanitarian priority than preventing unauthorized use of a trademark. The way the Red Cross interprets them, the Geneva Conventions seem almost quaint.”

….but

The Red Cross is making nothing other than a very plain reading of the Geneva Conventions—and the American Field Manual for that matter (though America, let’s note, was not really involved here, just using that as an example). The relevant section is the prohibition on perfidy—battlefield trickery—and the very few prohibitions in that regard represent some of the oldest and most core values of Western society on what is and isn’t appropriate conduct in warfare.

And they matter.

A lot.

The relevant section of the Geneva Convention:

Article 37.-Prohibition of perfidy

1. It is prohibited to kill, injure, or capture an adversary by resort to perfidy. Acts 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. The following acts are examples of perfidy:
(a) The feigning of an intent to negotiate under a flag of truce or of a surrender;
(b) The feigning of an incapacitation by wounds or sickness;
(c) The feigning of civilian, non-combatant status; and
(d) The feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.
2. Ruses of war are not prohibited. Such ruses are acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law. The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation.

Article 38.-Recognized emblems

1. It is prohibited to make improper use of the distinctive emblem of the red cross, red crescent or red lion and sun or of other emblems, signs or signals provided for by the Conventions or by this Protocol. It is also prohibited to misuse deliberately in an armed conflict other internationally recognized protective emblems, signs or signals, including the flag of truce, and the protective emblem of cultural property.
2. It is prohibited to make use of the distinctive emblem of the United Nations, except as authorized by that Organization.

Article 39.-Emblems of nationality

1. It is prohibited to make use in an armed conflict of the flags or military emblems, insignia or uniforms of neutral or other States not Parties to the conflict.
2. It is prohibited to make use of the flags or military emblems, insignia or uniforms of adverse Parties while engaging in attacks or in order to shield, favour, protect or impede military operations.
3. Nothing in this Article or in Article 37, paragraph 1 ( d ), shall affect the existing generally recognized rules of international law applicable to espionage or to the use of flags in the conduct of armed conflict at sea.

And needless to say every military code of conduct we have in America on the matter reflects that (indeed, predates that, having been adopted and exulted as central tenets of our national identity during the Revolutionary War and in all wars since).

Important to note: that quote above is literally the sum total of civilized prohibitions on the use of battlefield deceptions as it relates to flags.

Far from being a massively constraining set of articles, really the Geneva Conventions only specifically prohibit a very small few actions that it considers so out of bounds they must be recoiled from at all times (N.B. that is true regardless of whether your enemy is respecting them or not, and if you don’t understand that, you don’t have any business getting involved in issues of war or being accorded any respect or consideration when you do, simple as that.).

In fact, there are really only three. Torture, is the most obvious example. A sub-division principle of that is that a wounded enemy in custody is of no nationality; you treat all wounded men the same, as human beings first and as enemy second (corollary: you do not attack hospitals or enemy medics and doctors).

The second prohibition: you also don’t assassinate enemy political leaders. As the army handbook puts it:

Under this rule are prohibited acts of assassination, the hiring of assassins, putting a price on an enemy’s head, offering a reward for an enemy “dead or alive,” proscription and outlawry of an enemy . . . Perpetrators of such acts should be tried as war criminals.

We’ll leave that one aside for another day.

And the third and final one, which may seem quaint but is actually as fundamental as the other two: you do not fly false flags of non-combat. Very specifically, the white flag of surrender, and the red cross of impartial medical assistance, are inviolable.

There is damn good reason for that. The first and most obvious is…that way, nobody is inclined to shoot at the Red Cross, or surrendering soldiers.

But there’s a lot more to it.

On the subject of perfidy, and I’ve been meaning to suggest it for awhile, I not only recommend, but I demand you all read “Rules of Engagement: Why Military Honor Matters” in which Elaine Scarry, a Harvard professor whose specialty is war and the social contract, looks at exactly this issue, and a few more. If you hadn’t guessed it with the “Wanted Dead or Alive” stuff, pretty much every prohibition on conduct in warfare we are currently, as a civilization, in the process of annulling, led by the United States.

In the War in Iraq alone, we have attacked hospitals, flown false flags, hired private assassins and put prices on peoples heads, and of course systemically and as a matter of national policy tortured prisoners (including wounded and surrendered ones) in our care. Scarry walks you through all that.

Here is what she says on the subject of the Red Cross, and it’s worth the big blockquote:

But the fraudulent use of a white flag or a red cross (or the equivalent of the red cross in other cultures—the red crescent or the red lion, for example) is prohibited for three reasons. First, some small pieces of language in war must remain wholly intact, uncompromised, unwavering, undiluted in their meaning. These few insignia are placed hors de combat, or “out of combat”; they constitute a civil structure that remains in place in the international sphere (in the same way that inside a country the military is kept inside a civil frame). These small but sacrosanct pieces of language act as a location from which other true sentences can be spoken: without them, as Morris Greenspan observes in Modern Law of Land Warfare, neither party would “be able to place the slightest credence in the word of the other.”

The second reason points to the future rather than the present, the period of peace rather than war. Unless certain pieces of language remain uncontaminated by war, no international framework of trust remains available for a truce or peace accord. These small pieces of language must be kept intact, then, because they will provide a bridge back to civilization.

The first and second reasons tell us that some pieces of language must carry the guarantee of truthfulness without telling us why these particular pieces of language must do so. This explanation is provided by a third principle, which is hard to formulate. One formulation states … that it is a “grave breach . . . when the use invites the confidence of the enemy with the intent to betray confidence.” […] What is key in cases of treachery is that one party invites its opponents to refrain from injuring others and to refrain from protecting themselves against injury by appealing to the higher frame of language, the hors de combat language, and then, thanks to the opponents’ willingness to honor this higher call, injures them…

The stark prohibition on the false use of the red cross is derived from a logically prior and overarching prohibition: that a Red Cross vehicle or building cannot itself be the target of assault. It is because all participants are obligated to regard the white flag and red cross as inviolable that a secondary obligation arises not to use either sign falsely.

“Well Brad, the enemy won’t respect that prohibition”. Well, in that case, you drag them before a war crimes tribunal, try them, and hang them. Simple as that.

But prohibitions on perfidy exist precisely to allow us to retain some measure of humanity even—especially—in wartime. And—I like Scarry’s quote here—allow us a “bridge back to civilization”.

But here is what it boils down to at its core, and the principle violation that the actions of Columbia in this case represent:

If it is legitimate for a national force to pretend to be the Red Cross to conduct combat operations, then it is legitimate—legitimate and justified—for opposing enemy forces to attack the Red Cross. There is, simply put, absolutely no other reading you can make within the logic of combat.

This is precisely why we deem both modes of conduct to be wholly out of bounds.

Now, I’m of course ecstatic that the Colombian government finally infiltrated FARC and got our guys back. And I was not the only one who praised them their ingenuity in how they did it. And, in truth, I would rather they did it this way than not did it at all (and that makes me weak).

There were, as I understand it, no casualties (in that sense and most others, it was a startlingly successful mission), so the Colombian government can (and would) get off with a slap on the wrist.

But a slap on the wrist here is probably appropriate. Somebody, somewhere, should say something…and we shouldn’t mock and deride them when they do. One thing you can already probably safely say: future prisoners of the FARC will no longer be treated to visits from humanitarian workers. And if future humanitarian workers attempt to do so, they run the risk of being attacked—and I say this again, legitimately, in the logic of warfare as defined by the Columbian government.

It is worth pausing and reflecting, if ever so briefly, that we really have entered a period of modern combat history where not only do some people not respect the rules of warfare (and that has always been true, particularly for barbarous and illegitimate enemies), but nobody does. Where even the suggestion that we consider them is considered liberal and whiny, rather than honorable and steadfast (through our history, nobody have been bigger advocates of these regulations than the most hard-and-fast steely soldiers and military leaders the world has ever seen—we are not talking Jeffersons or civil rights attorneys, we are talking Washingtons and The Marine Corps). Where the very notion of civilized conduct during combat has become sneered at. We are now moving, not on the basis of Al Queda and FARC but on the demands of the United States and Columbia, to discard any notion of fidelity to these principles whatsoever.

We can always be happy that in this case or that, things worked out for the best. And I certainly am, as it pertains to Thomas Howes, Marc Gonsalves and Keith Stansell.

But it’s worth at least reflecting that we’re giving away an awful lot for the sake of the path of least resistance.

12 Comments »

  1. Columbia University was holding Americans hostage?

    Comment by KipEsquire — 8/7/2008 @ 10:57 am

  2. Damn the leftist forces of the Ivory Tower.

    Comment by Adam — 8/7/2008 @ 11:11 am

  3. Good point, i cannot agree more. Althought the Red Cross has lost some its credibility itself, but that aside. And as far as i understand it, one soldier put it on on his own accord, so still a lot to do about nothing.

    Comment by mennodus — 8/7/2008 @ 11:24 am

  4. The details remain a little unclear.

    From this point, the hostages, agents, and about 60 real rebels made a 90-mile march through the jungle to a spot where, agents told their unsuspecting comrades, an “international mission” was coming to check on the hostages. On schedule, an unmarked white helicopter set down and Colombian security forces posing as FARC rebels jumped out. They told the rebels that they would take the hostages to the meeting with the “international mission.” All of the captives were handcuffed and placed aboard the helicopter, along with two of their FARC guards, who were quickly disarmed and subdued after the helicopter lifted off.

    Not stated in that is, from some accounts, the “Red Cross” name was bandied about by the government infiltrators (I still can’t tell if, according to the more bland reporting, they were instructed to say “international mission”, or if that’s just what the reporting is using instead of reporting that they said “Red Cross”; either way the principle is the same), and as you said one solider at least was “flying the false flag” of the Red Cross specifically.

    I don’t know that it’s a lot to do about nothing. I would say that this situation, specifically, doesn’t deserve a war crimes tribunal or anything like that. Some official investigation and a big of finger-wagging would be in order, however.

    What is not a lot to do about nothing is I think this is pretty emblematic about a larger issue, that being how seriously we (and by “we” I mean “the civilized world”) take codes of conduct for combat and warfare. You can tut-tut any specific instance, but we’re doing that these days with every specific instance, to the point where we’re creating and instantiated a new framework for how we view these things. That framework being “fuck that; there are no rules”.

    I think it’s worth pausing and at least reflecting on what we’re abandoning, and why we once deemed those rules important, even if we, as a whole, consciously (or unconsciously, which is how we’re doing it now) decide we’re okay with the present course.

    Comment by Brad — 8/7/2008 @ 11:43 am

  5. Outstanding post. And correct, I think.

    Comment by Rojas — 8/7/2008 @ 11:56 am

  6. I wasn’t aware that we (the US) had flown false flags in Iraq.

    Comment by Cameron — 8/7/2008 @ 5:46 pm

  7. Read the Scarry article I linked.

    Comment by Brad — 8/7/2008 @ 5:58 pm

  8. I had. Perhaps I wasn’t clear; I was commenting on that as interesting new information. Before you posted I wasn’t aware of that occurrence.

    Comment by Cameron — 8/7/2008 @ 6:59 pm

  9. Ah.

    That sort of thing rarely gets noticed or reported. My guess is it probably happens as a matter of regular course a lot more often than even those few who are paying attention know about. We don’t really care anymore. It’s one of the least “shock the conscience” types of Geneva violations, but also perhaps one of the most pernicious.

    My guess is, though nobody will think to make the connection, that there will be a real correlation between our unwillingness to abide by our code of conduct, and everyone else’s willingness to do the same.

    Comment by Brad — 8/7/2008 @ 7:09 pm

  10. Well, that’s the connection that a lot of people do make over things like torture.

    I am not sure of the amount of increase there will be in reciprocal behaviour used against the US or allies as a result, but it’ll certainly be justified by the people that do it with examples of the US doing it and it’s hard to argue against that; when you get into a “yeah, but that was different” analysis, even though it’s often going to be a defensible way to approach it, you’re going to lose the attention of most people, I would say.

    Comment by Adam — 8/8/2008 @ 7:50 am

  11. I don’t mean it’ll increase to the clean degree of Event X spawns Retaliation Y.

    I mean to say we’re stepping, and we have stepped, towards a world without any kind of universal, generally globally accepted norm of conduct. It’s not that when there has been something akin to that (straight through 20th century, in large part) everyone followed it, but we had at least something to point to, and a basis to try them on, when they ran afoul (that was part of the point of it). And even the big powers feared for their moral and diplomatic capitol enough to prevent most kinds of systemic abuses.

    But now we’ve polluted the well, we’re muddying the waters (needlessly, I might add). We can still force other countries to adhere to it sans our example but with our demand for a good long while, and it’ll probably be the legal facets of it that go last, but eventually they’ll go too.

    Look at it like this. If we began a practice of occasionally shooting, sans cause, people who lay down their arms and surrender to us, if we began a framework wherein that could be excused, what do you think would be the result? In 1991, when we went into The Gulf, we saw whole Middle Eastern armies just give up, almost happily. That wouldn’t have happened if we were the Iranians. What’s the difference?

    The difference is those armies knew we lived under a certain code of conduct, that we adhered to it (or had a strong reputation to, anyway), and that even we, in some way, were accountable to someone. They knew, or at least had damn good reason to believe, that they would have an umbrella of protection. They didn’t get that with their previous wars, both from their enemies or their own government. They were almost happy to give up to it when whey had a chance. For a lot of those guys, it was a relief to be able to surrender to the United States.

    Now, if we went in there on the basis of a 20-year reputation of wantonly shooting people who surrendered to us, maybe torturing a good chunk of them too, and they knew that we considered ourselves to have no code we lived by, no specific or objective one anyway, if we were accountable to no one, do you think we’d have rolled into the desert to see scores of soldiers already with their weapons laid down the white flags up?

    We’re not only creating, but demanding on, a culture of subjectivity and relativism as it pertains to barbarousness and deceit. We tried an experiment for awhile (roughly the life of the Geneva Conventions) where relativism wouldn’t stand, and where we tried to have some measure of objective standards of basic human decency in warfare. And it’s now us leading the charge to get out from under that.

    Comment by Brad — 8/8/2008 @ 8:59 am

  12. I would prefer to see it from the point of view of what America loses, which is a claim to moral highground. Now, America, like every country, has always been up to skulduggery and things of which a lot of their own populations would disapprove, but if it gets worse and also more public — something presumably only helped by the internet, etc — it’s going to hurt America’s attempts to claim the moral highground, which is often a key part of the foreign policy strategy. Another effect, I think, is that there’ll be a problem with the American public themselves, who don’t like to think that their nation is up to no good. I think that’s a lot more important and damaging to the US than is the precedent argument, in practice.

    So, I’m not arguing that it’s OK or that the effects aren’t bad, just that I think that the primary bad effects are differently located.

    Comment by Adam — 8/8/2008 @ 9:10 am

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