Permissible Perfidy?
Analysing the Colombian Hostage Rescue, the Capture of Rebel Leaders and the World's Reaction
* Assistant Professor, United States Military Academy (USMA), West Point, NY; Major, Judge Advocate General's Corps, U.S. Army; Member, Editorial Committee of this Journal. The views expressed in this article are solely the author's and do not necessarily reflect those of the US Army, US Military Academy or any other department or agency of the US government. The author would like to thank Colonel David Wallace and Major Richard Meyer of the USMA Department of Law for their substantive comments on earlier drafts of this article. Any remaining errors are the author's alone.
[johncdehn{at}gmail.com]
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Abstract |
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On 2 July 2008, Colombian forces disguised as an international humanitarian mission rescued 15 hostages from the Fuerzas Armadas Revolucionarias de Colombia guerilla group, its opponent in a decades-long conflict. Those forces also captured two guerrillas, including the commander who had been responsible for the hostages. The world's reaction, including those of humanitarian and human rights organizations, was universally positive in spite of reports that Colombian commandos and intelligence agents posed as aid workers and journalists — non-combatants protected by international humanitarian law (IHL) — in effecting the rescue and capture. Criticism of the operation later arose only when it was discovered that at least one of the Colombian soldiers participating in the operation wore the emblem of the International Committee of the Red Cross. Even that criticism focused solely on the misuse of the emblem, not the feigning of non-combatant status resulting in capture. The author examines the rescue operation to determine whether and how it might have violated IHL prohibitions regarding perfidious capture, recently asserted to apply in both international and non-international armed conflict. He reviews the perfidy prohibition, its scope and applicability, and possible interpretations that might explain the world's uncritical reaction to the operation. He also examines doctrines that might preclude or negate potential criminal responsibility for individual participants or decision-makers, as well as those that might apply at a collective level. The author argues that the lack of the clear applicability of any doctrine precluding criminal responsibility for this supposed violation of IHL might confirm either that perfidious capture is permissible in non-international armed conflict or that it is a non-criminal and inconsequential violation of IHL. Alternatively, he suggests that uncritical acceptance of this operation might reveal that the applicable law no longer reflects our intuitive notions of justice.