The alarmist tone of recent tit-for-tat reports from the war in Ukraine has refocused attention on so-called “false flag operations” and their legality under international law.
At the beginning of March, Ukraine dismissed as “provocation” a Russian claim that Ukrainian “terrorists” or “sabotage groups” were behind a series of disputed attacks and exchanges of fire in Russia’s Kursk and Bryansk regions, near the Ukrainian frontier.
Overnight on March 9-10, Russia launched a barrage of 81 missiles against targets all over Ukraine, including six hypersonic missiles, labelling them retribution for those earlier attacks.
In the week of the first anniversary of the start of Russia’s “special military operation” in Ukraine, the Institute for the Study of War published a report claiming that Moscow was setting up attacks on Belarusian territory and inside the Moldovan secessionist republic of Transnistria to make it look as though they had been carried out by Ukrainian troops.
This would potentially justify Belarus’ formal entry into the war on Russia’s side. In turn, this would force Ukraine to divert troops and materiel away from the currently “hot” military operations in Donbas towards the northwestern and southwestern frontiers of the country.
Read more: Ukraine war: Moldova could be the first domino in a new Russian plan for horizontal escalation
On February 19, Russia’s Ministry of Defence alleged that Ukraine was preparing to stage an unspecified “nuclear incident” on Ukrainian territory with radioactive substances imported from an unnamed European country, in order to blame it on the Kremlin.
But no evidence supporting such allegations was produced and, needless to say, no such incidents have actually taken place.
False flag operations – hostile statements made or acts committed with the intention of pinning the blame on another party, usually one’s adversary – are a long-recognised tactic of organised warfare. They aim to deceive the enemy in order to gain a military advantage. As such there is nothing inherently illegal about them within the framework of international humanitarian law (IHL).
The term “false flag” probably originated in naval warfare dating back to the 16th century. A warship might occasionally fly the flag of a neutral – or even enemy – nation in order to get as close as possible to a hostile warship before opening fire.
The practice made sound military sense in an age when the range of warships’ cannons was quite limited. It was highly desirable to close with an enemy ship in order to disable and, if possible, board it in order to take it as a prize. As a tool in the hands of the weaker party to a conflict, it could also help to even the odds.
Such conduct, and other similar acts of deception, were not considered illegal, provided the correct flag was flown during actual combat.
This practice continued into both world wars. In 1914 the German light cruiser SMS Emden, possessing a distinctive three-funnel silhouette, rigged up a fourth (dummy) funnel to make herself look more like a British light cruiser of equivalent class.
In 1941 the German commerce raider Kormoran used the call-sign and flag of a Dutch merchantman to tempt the Australian cruiser HMAS Sydney to approach as close as possible. This reduced Sydney’s advantages of superior gun range and heavier armour; Kormoran hoisted the German battle ensign on opening fire, resulting in Sydney’s loss with all 645 of its crew.
The legal position
So-called ruses de guerre (“tricks of war”) like this have long been permitted by IHL. They were first acknowledged in the 1863 Lieber Code (the first attempt to codify the rules of war, by US academic Francis Lieber during the American Civil War). In modern warfare, they are expressly allowed by Article 24 of the 1907 Hague Regulations and Article 37(2) of the 1977 1st Additional Protocol to the Geneva Conventions. The International Committee of the Red Cross also recognises this as a rule of customary IHL.
But to be considered legal such acts must not violate another rule of IHL. In particular a false flag action must not constitute perfidious or treacherous behaviour – abusing a flag, emblem or uniform to claim protection under IHL when no such protection is warranted. An example would be concealing weapons in or firing them from an ambulance painted with the Red Cross (a protected emblem under the Geneva Conventions, reserved for designating medical units or facilities).
Improper use of Red Cross insignia, like other acts of perfidy, is clearly a war crime and can be prosecuted as such under international law (as in the 1946 Trial of Heinz Hagendorf, who was convicted of firing on US troops from a German ambulance marked with the red cross in January 1945.
The wearing of enemy uniform, on the other hand, has been subject to much controversy. A famous post-World War II trial involved the acquittal of SS Lieutenant-Colonel Otto Skorzeny. The German officer (who was also famous for the daring 1943 paratroop raid which freed Benito Mussolini from pro-Allied custody) had dressed his men in US uniforms during the Battle of the Bulge in 1944. He was found not guilty, on the grounds that they did not actually fight while wearing the wrong uniform.
Weapon of distraction?
The interpretation and application of these rules, depending as they do on notions of honour and good faith in warfare, may seem anachronistic in the 21st century. In particular, the omnipresence of modern media and observation technology makes it harder for a belligerent to get away with this behaviour.
But the continuing discussion of Russian false flag operations in Ukraine and mutual denunciations for propaganda shows that it still has a place on the modern battlefield. It’s one way of distracting attention when all is not going according to plan. So the Kremlin’s escalating use of such tactics may, in that sense, be a sign of a campaign that is not going well.