Opinio Juris

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.