Word of the Week: Did the Trump administration commit ‘perfidy’?

By Harmeet Kaur, CNN

(CNN) — Last week, The New York Times broke the news that the aircraft the US used to attack a boat in the Caribbean last September, killing 11 people, had a paint job that made it look like a civilian plane.

By using a plane with a nonmilitary appearance for a military operation, the Times wrote, the Trump administration may have committed a war crime called “perfidy.” Dictionary lookups for the word spiked the day the Times story was published, per Merriam-Webster.

Perfidy — from the French perfidie via the Latin perfidia — means deceitfulness, treachery or a breach of faith or promise. The Oxford English Dictionary traces its earliest known use to 1592, when it appeared in the letters of English writer Gabriel Harvey: “The Athenians were noted for lavish amplifying … the Carthaginians for deceitful perfidy.”

But while the word’s general usage sounds more than a little archaic in the 21st century, its application to a particular kind of deceit prohibited in war remains active law. The Trump administration denies violating international law in the strike.

“Perfidy” is often used interchangeably with “treachery,” says Gary Solis, a Marine Corps veteran and a scholar on the law of armed conflict. But to constitute a war crime, he says there are three key criteria that must be present: 1) inviting the confidence of an enemy, 2) intending to betray that enemy and 3) betraying the enemy in a way that exploits their expectations for protection under the laws of armed conflict.

Take this hypothetical example: A military uses a vehicle marked with the Red Cross emblem to trick its enemy into stepping out of cover so that its wounded soldiers could presumably receive aid. If that military then opened fire on those combatants, that would be perfidy, Solis explains.

Perfidy was mentioned in the 1863 Lieber Code, which laid out rules of conduct for the Union Army during the American Civil War and is known today as the first modern codification of the laws of armed conflict.

“Military necessity does not admit of cruelty – that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions … It admits of deception, but disclaims acts of perfidy,” Article 16 reads.

Tess Bridgeman, co-editor-in-chief of the law journal Just Security, says today perfidy is an established construct in international law, appearing in the Hague Conventions and the Rome Statute of the International Criminal Court, as well as in US military manuals.

The US Department of Defense Law of War manual defines perfidy as “acts that invite the confidence of enemy persons to lead them to believe that they are entitled to, or are obliged to accord, protection under the law of war, with intent to betray that confidence.” International humanitarian law prohibits killing, injuring or capturing an adversary through perfidy.

Charges of perfidy are relatively unusual, Solis says. During World War II, Nazi commander Otto Skorzeny headed a brigade that was accused of disguising themselves with American uniforms and subsequently killing US soldiers — Skorzeny was tried for the crime of perfidy, though he was ultimately acquitted. More recently, an al Qaeda operative and suspected mastermind behind the 2000 USS Cole bombing — in which suicide bombers sidled up alongside a US warship, waved to the sailors and then detonated explosives — was charged with perfidy, among other crimes.

Though Solis calls perfidy an outdated word, it recently appeared in a more modern, non-military context: Paul Thomas Anderson’s black comedy thriller “One Battle After Another.” In the film, Teyana Taylor plays the leftist revolutionary Perfidia Beverly Hills, whose character arc is in her name — after she’s arrested for killing a security guard in an armed robbery, she ends up ratting out her fellow revolutionaries in exchange for immunity.

Back to the Trump administration’s September 2 boat strike: Was the use of an aircraft that looked like a civilian plane an example of perfidy? Solis and Bridgeman say no — to consider it as such would be to accept the administration’s position that the US is in an armed conflict with drug cartels, which the two legal experts contend it is not.

Dru Brenner-Beck, a retired US Army judge advocate and an expert in international law and the law of armed conflict, is less certain. She argues that the US capture of Venezuelan leader Nicolás Maduro opens up the possibility for international courts to see the boat strike as part of an armed conflict between the US and Venezuela, which in turn would mean that US nationals involved in the attack could potentially be liable for war crimes. Still, this possibility hinges on technical questions about the boat that we don’t yet have the answers to.

Solis and Bridgeman maintain that the administration’s actions were unlawful whether they would be classified as a war crime or not. They offered another word: murder.

“What happened in reality is that the US military was ordered to carry out extrajudicial killings, also known as murders, and they did so,” Bridgeman says. “The laws of war did not apply because we were not in an armed conflict, so at the end of the day, there’s no perfidy.”

Solis agreed: “It’s sometimes difficult for civilians to accept that this is just outright murder,” he adds. “Well, it is outright murder.”

When asked about accusations of perfidy and murder, White House deputy press secretary Anna Kelly said in a statement, “This Presidentially directed strike was conducted against the operations of a designated terrorist organization and was taken in defense of vital U.S. national interests and in the collective self-defense of other nations who have long suffered due to the narcotics trafficking and violent cartel activities. The strike was fully consistent with the law of armed conflict.”

To focus on perfidy, Solis and Bridgeman say, is to grant the administration’s premise that the boat was, in fact, part of an armed conflict.

“The administration has us tying ourselves in knots, talking about these concepts that don’t even apply, which legitimizes the framing that they’ve put on this entire campaign,” Bridgeman says. “It legitimizes the idea that there’s a war, and that if only they follow the rules of war, then it would be okay. But that’s wrong.”

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