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219 Mil. L. Rev. 106 (2014)
Law-of-War Perfidy

handle is hein.journals/milrv219 and id is 112 raw text is: 









MILITARY LAW REVIEW


                      LAW-OF-WAR PERFIDY

                              SEAN WATTS*

    Perfidy and treachery are among the gravest law-of-war violations.
The betrayals of good faith associated with perfidy threaten more than
the immediate, tactical positions of the attacker and victim. Perfidious
betrayals inflict systemic harm on the law of war as a guarantee of
minimally humane interaction. Even a single instance of perfidy can
permanently compromise the possibility of humanitarian exchange
between belligerents.

    The   remedies   for perfidy    reinforce  the  point. In   personal,
professional, and international relations, perfidy and treachery provoke
draconian and irreversible reactions. Early professional military codes
prescribed   summary    death   for  treacherous   correspondence    with
enemies.1 Earlier, medieval notions of honor and chivalry sanctioned
unending blood feuds to avenge knights killed by treachery. Thomas
Jefferson, the acknowledged author of the American Declaration of
Independence, cited English perfidy among the grievances justifying
full-scale revolt, violent war, and permanent succession from the British
monarchy .3

    Admittedly, many historical uses of the term have been political
rather than legal. Yet perfidy and treachery4 were still well established


  Associate Professor, Creighton University Law School; Judge Advocate, U.S. Army
Reserve-Reserve Instructor, Department of Law, U.S. Military Academy at West Point.
I am very grateful to Colonel (Retired) David Graham, Commander Paul Walker, U.S.
Navy, and Professor Eric Talbot Jensen (LTC Retired), for especially helpful editorial
comnments.
1 American Articles of War of 1775, Additional Articles, art. 1 (Nov. 7, 1775);
Massachusetts Articles of War, art. 27 (Apr. 5, 1775); British Articles of War of 1765 §
XIV, art. XIX; Articles of War of James II, art. VIII (1688).
2 Geoffrey Parker, Early Modern Europe, in THE LAWS OF WAR 54 (Michael Howard,
George J. Andreopoulos & Mark Shulman eds., 1994) [hereinafter Howard et al.]
3   Declaration of Independence (1776), available at http://avalon.law.yale.edu/
18th century/declare.asp. Jefferson and his co-signers' allegation of perfidy referred
specifically to the conduct of mercenaries employed by the English. Id. The Declaration
of Independence includes several references to the law of war of the period. Id.; see also
JOHN FABIAN, LINCOLN'S CODE: THE LAWS OF WAR IN AMERICAN HISTORY 15-27 (2012).
4 Law-of-war commentators have intermittently regarded perfidy and treachery as
synonymous. Lieutenant Colonel Willard B. Cowles, High Government Officials as War
Criminals, 39 AM. SOC. INT'L L. PROC. 54, 58 (1945) (asserting The words 'treachery'


[Vol. 219

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