Is Israel Guilty of Perfidy?
6 min read
Francesca Albanese, the United Nations’ special rapporteur on the Occupied Palestinian Territories, expressed “relief” that four Israeli hostages, held captive since the October 7 attacks, had been “released” on Saturday—a curious choice of words, because release suggests that their time had been brought to a gentle conclusion, like the career of an aging baseball player who has lost his swing. In fact, Hamas was reluctant to part with the hostages, and Israeli commandos had to raid private apartments and kill the captors, and then killed many others, including civilians, on the way out. Hostage-taking violates pretty much every international legal regime that exists. But Albanese accused Israel of committing war crimes during its operations, because according to rumor, it “perfidiously” used an aid truck as “humanitarian camouflage” to get close to Hamas. Widely circulated video footage from the operation doesn’t show any aid trucks, but it does show a military convoy that includes a commercial truck, with an ad for the German soap brand Pril on its side panel.
The word perfidy has the antiquarian ring of a dead-letter crime, one that persists on the books because no one has bothered to remove it. (It also sounds, in the phrase perfidious Jews, like classic anti-Semitism. Let us hope this is a coincidence.) But perfidy is a real war crime, and it is distinct from just being tricky and shrewd, or not announcing in a loud voice the exact place, time, and manner of your attack. “It’s essentially a prohibition on feigning a protected status in order to mount an attack on an adversary,” Ben Saul, another UN special rapporteur (this time on human rights and counterterrorism), told me by phone yesterday. Dressing like an aid worker, then taking out a gun and shooting your enemies—that’s perfidy. Waving a white flag so your enemy thinks you have surrendered, then shooting him when he comes up to you? Perfidy again. (Perfidy involves attacking. When the U.S. used a vaccination program to get a peek into Osama Bin Laden’s compound, that was spying, not perfidy. Spying is not a war crime.)
Did Israel commit the crime of perfidy? Unlike Albanese, Saul acknowledges that the details of the operation remain “murky.” But he suggested yesterday, in a controversial post on X, that Israel may have committed “the additional war crime of perfidy—disguising some forces as protected civilians.”
The law of armed conflict is practical, Saul told me. “You don’t want an adversary thinking that in every ambulance a fighter is hiding, because if you do that, then all of those things become fair game,” he said. “It erodes any distinction between fighter and civilian.” He noted that “emblems of surrender,” such as a white flag, are also sacrosanct, and their abuse would be perfidious.
The simple use of civilian vehicles, especially by personnel in military uniform, is “a more difficult case,” Saul said, with opinion divided on whether it counts as perfidy. Militaries are expected to move around in military vehicles, so when they do not, Saul told me, “you probably step over that line”—particularly if the Israelis intended to deceive their targets.
In Israel’s favor, the short clip of the rescue operation shows the truck in a convoy of what are clearly military vehicles, so no one could at that particular moment doubt that it was traveling in a military unit. Nevertheless, Saul believes the operation was likely perfidious, and that the perfidy could in the long term kill civilians. “If you’re deliberately using civilian vehicles to move your troops into battle,” he told me, “then forever after, Hamas is going to think civilian vehicles in certain areas where hostages might be could be packing a bunch of Israeli soldiers.” Those circumstances, he said, lead to a situation where “civilians get opened fire on [by Hamas] first and questions are asked later.”
Several ironies here are worth noting, firstly that Hamas fighters already open fire on civilians, with pride and delight. They shot or burned alive many hundreds on October 7 alone, and nearly every rocket they have fired into Israel has been aimed into civilian territory. Saul himself drew attention to another irony: “One of Israel’s greatest complaints is that terrorists don’t fight fair, that they dress as civilians, that they disguise themselves and live amongst civilian populations,” he said. “And that’s exactly the kind of rule that Israel’s now breaking.”
Israelis are understandably irritated that this “kind of rule” theoretically governs everyone but is applied with special vigor to them. Hamas might accidentally kill civilians because of Israel’s alleged perfidy, and if it does so, that’s Israel’s fault. But when Israel accidentally kills civilians—somehow that’s Israel’s fault too, and not the predictable result of Hamas’s mockery of the principle of distinction between civilians and combatants. It seems doubly perverse to apply rules against perfidy when perfidy is being used to free hostages, but to let other war crimes slide when their objective is to kill civilians.
Sometimes Israel’s supporters’ irritation with this asymmetry shades into an irritation with the laws of war themselves—as if the reprehensible behavior of Hamas should exempt Israel from rules too. Laws don’t repeal themselves just because one party ignores them. But the gut sense that the crime of perfidy is rigged against Israel has some basis, and not only because UN special rapporteurs tend to scrutinize Israel more than its adversaries.
Brian L. Cox, a former U.S. Army lawyer now at Cornell University and the University of Ottawa, told me that prohibitions on perfidy have historically applied to conflicts between states, and that attempting to extend perfidy to conflicts involving nonstate actors could have strange consequences. The Geneva Conventions list perfidy in a section devoted exclusively to state-on-state war crimes. The Rome Statute, which established the International Criminal Court, does the same. This placement was deliberate, Cox said: Prohibiting perfidy makes sense mostly in the context of international conflict.
The structure of the crime of perfidy, he said, assumes “that your adversary has a right—pursuant to the law of armed conflict—to attack you in the first place,” and that you, the perfidious criminal, prevent that adversary from exercising that right by pretending you are a civilian. But Hamas has no such right, Cox said, because it is not a state, and the law of armed conflict recognizes the rights and obligations only of states when they attack.
Hamas’s fighters “don’t have combatant privilege,” Cox continued, referring to the set of special immunities that apply, for example, to a soldier shooting a rifle in an act of war, but not to me if I start shooting a rifle as an ornery journalist. “Without combatant privilege, every act of belligerency is against the law,” Cox explained. No combatant privilege means no legal expectation that the enemy won’t use perfidy. Plenty of rules of war still govern Israel and Hamas, and you can look at the list of charges laid out by the ICC’s prosecutor, Karim A. A. Khan, to get a sense of what some of them are. But perfidy, Cox says, fits uncomfortably on the list, because it originated in a different context.
Historically, the consequences of wearing civilian clothes for military missions have been mixed. In the Second World War, German saboteurs who came to the U.S. in civilian garb got the death penalty. In 1972, a Navy SEAL went behind enemy lines posing as a Vietnamese fisherman. He got the Medal of Honor. In 1973, an Israeli assassin named Ehud Barak came ashore in Beirut disguised as a brunette tourist. He became Israel’s tenth prime minister (having at some point discarded the disguise). Whatever the legal verdict on Israel’s weekend operation, it had an obvious positive consequence: the freedom of four innocent people.
But the negative consequences of perfidy, however defined, remain. The world, including Israel, might have an interest in punishing and eliminating it. Zealously applying international law might be one way to go about that. Zealously eliminating Hamas might be another. Israel has chosen.
