“If the aircraft flying above is not identifiable as a combatant aircraft, it should not be engaged in combatant activity.”
— Retired Maj. Gen. Steven J. Lepper, quoted in the New York Times
This statement — quoted uncritically by the New York Times — is not the legal standard for perfidy, and its misuse is the foundation of the article’s false war-crime narrative.
Dr. Brian L. Cox:
Not “perfidy” & not a war crime. Even if everything reported in this @nytimes story by @charlie_savage et al were regarded as true, this STILL would not qualify as perfidy. Here’s why.
By definition, the unknown aircraft that MAY have flown with no military markings in the vicinity of the targets of the very first drug boat strike would have to invite their confidence & lead them to believe they were obliged to accord protection pursuant to LOAC to that aircraft WITH THE INTENT TO BETRAY THAT CONFIDENCE. But don’t just take my word for it. Check out the blue & green highlights of pic 1, which is a relevant excerpt from the DoD Law of War Manual on the topic of perfidy.
This means ppl in the suspected drug boat would have to see the plane, believe it does not belong to the military of their adversary, refrain from attacking the plane on that basis, and THAT PLANE would need to take advantage of that confidence ON PURPOSE by attacking the drug boat after inducing the people on it to refrain from attacking the plane.
That’s a lot to demonstrate. The facts reported in the story never do establish the boat had the capacity or desire to attack the aircraft in question – so even if everything reported in the story were assumed to be true, this STILL wouldn’t qualify as perfidy.
Now let’s have a look at what LOAC standard is reported in the story from the military law “expert” consulted for the article. As we can see in pic 2, the reporters interviewed retired Maj Gen Steve Lepper – who misrepresents the actual perfidy standard…and the reporters are too ignorant to call him on it or prevent his misrepresentation from impacting the story.
According to the source, “If the aircraft flying above is not identifiable as a combatant aircraft, it should not be engaged in combatant activity.” This is erroneous for at least 2 reasons.
First, there are no “combatants” to begin with. Although this media report is obviously skeptical of the determination that an armed conflict exists, the administration has determined that 🇺🇸 is in a noninternational armed conflict against drug cartels etc. By definition, there are no “combatants” in a NIAC – so this source referring to combatants is an immediate tell indicating his LOAC knowledge is deficient.
More importantly, though, he completely misstates the definition of perfidy in LOAC. Yes “shielding your identity” CAN be an element of perfidy, but it’s nowhere near the ONLY element. Yet, Lepper stops there & claims that if the aircraft “is not identifiable as a combatant aircraft, it should not be engaged in combatant activity.”
This is just one person’s opinion – and not a particularly convincing one at that. It isn’t even close to articulating or applying the definition of perfidy correctly, and yet the ENTIRE STORY is built around this misrepresentation.
Yes there are other sources & yes there are other points made in the article. But the entire premise hinges on Steve Lepper’s characterization of perfidy…and he flat out gets it wrong on this occasion.
Here’s the thing. I’m not personally acquainted with Steve Lepper, but I am familiar with his reputation. Essentially, he’s regarded as fairly strong at military justice…but generally clueless when it comes to LOAC. And his commentary here is clearly consistent with that reputation.
Along with a fundamental misrepresentation of a central legal standard, yet again we’ve got an entire media story involving these boat strikes that is built purely on speculation & assumptions & unidentified sources. We have no clue how the plane in question was actually marked or whether this is the plane that actually attacked the guys in the boat or whether the intent was actually to betray their confidence by convincing them not to attack the aircraft then striking them anyway.
Basically, we know nothing – except Steve Lepper doesn’t understand perfidy. And once again, we generally can’t trust MSM when they report on topics involving LOAC compliance.
You misunderstand LOAC if you think fighters in a NIAC aren’t “combatants” & for perfidy, inviting confidence by feigning civilian status extends to making your adversary neglect to take necessary precautions (e.g. evasive maneuvers or surrender) and then attacking him.
You misunderstand LOAC if you think there are “combatants” at all in a NIAC – and so does your source. You’ll notice I didn’t suggest perfidy can’t be committed in a NIAC (Geoff is right about that btw). But you’re quoting from an Air Force pamphlet that was published in 1976 that also doesn’t suggest what you seem to think it does.
Neglecting to take “evasive maneuvers” as you put it is not the same as neglecting “to take precautions that are otherwise necessary.” Still, you’re better off sticking to the DoD Law of War Manual since that has commentary directly on point & was published way more recently.
As you can see from pic 2, inviting the confidence of the adversary – including by feigning civilian (non-DPH) status isn’t always perfidy. I applaud the engagement here, but your sources got the definition of perfidy wrong – which means you AND your team AND your publication got it wrong as well.
Your unnamed sources rely on speculation & incomplete information, and your named “experts” misrepresent the standard for perfidy. You & your team ran with both – and in doing so you (yet again) fabricated a story where there actually isn’t one all along.
Sometimes you have to get pretty stupid to criticize actions that have no downside.
The NYT’s Has covered up for Stalin Castro the Vietcong and is behind this 1619 Conspiracy nothings surprising by this leftists rag since their leftists Propaganda rag not a real Newspaper