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Sometimes, “perfidy” is used to refer to conduct that is, by definition, prohibited. 645Other times, as, for example, in AP I, “perfidy” is used to refer to a certain type of deception,which might not, by itself, be prohibited (e.g., feigning death would not be prohibited in order tofacilitate escape). 646 It will be important to examine closely the context to determine whichusage is intended. This manual generally uses “perfidy” in the latter sense.5.22.2 Perfidy - “Kill or Wound”. It is prohibited to use perfidy to kill or wound theenemy. It may not be prohibited to invite the confidence of the adversary that he or she isobligated to accord protection under the law of war, for certain purposes (e.g., to facilitatespying, sabotage, capturing enemy personnel, or evading enemy forces). However, suchdeception may not rely on certain signs and symbols. 647 Moreover, persons who use perfidy toengage in spying and sabotage may forfeit POW status or be liable to certain penalties under thedomestic law of enemy States. 6485.22.2.1 AP I Prohibition on “Capture” by Resort to Perfidy. In addition tokilling or wounding, Article 37 of AP I prohibits “capture” by resort to perfidy. The Departmentof Defense has not interpreted customary international law to prohibit U.S. forces from seekingto capture by resort to perfidy.5.22.3 Examples of Killing or Wounding by Resort to Perfidy. Examples of killing orwounding by resort to perfidy include:• feigning an intent to negotiate under a flag of truce and then attacking, 649 which takesadvantage of the rule that flags of truce may not be used to shield military operations. 650• feigning surrender and then attacking, 651 which takes advantage of the rule that theenemy may not attack those who have surrendered; 652concerning the Laws and Customs of War on Land. The word ‘treacherously’ in Article 23 b) was synonymouswith ‘perfidy’ in article 35 of draft Protocol I.”).644 SPAIGHT, WAR RIGHTS ON LAND 86 (“The word ‘Treachery’ in Article XXIII(b) seems hardly applicable to anenemy’s act, and one of the Brussels delegates proposed to substitute ‘perfidy’ for it. The original word was,however, retained, as being the equivalent of the German Meuchelmord (‘murder by treachery’)”).645 1956 FM 27-10 (Change No. 1 1976) 50 (providing that “[t]reacherous or perfidious conduct in war isforbidden”).646 BOTHE, PARTSCH, & SOLF, NEW RULES 203 (AP I art. 37, 2.4) (“It should be noted that Art. 37 [of AP I] doesnot prohibit perfidy per se, although the term is defined with precision.”).647 Refer to § 5.24 (Improper Use of Certain Signs).648 Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).649 For example, William Gerald Downey, The Law of War and Military Necessity, 47 AJIL 251, 260 (1953) (“Agood example of the use of deception which involved a breach of good faith is one that happened in this writer’spresence during the Battle of Metz in 1944. At that time the German forces held several forts south and east ofMetz. One November morning, just as our attack was getting under way, a German unit of some 20 men came outof one of the forts under a white flag. The American battalion commander gave the order to cease fire, and theGermans marched under the protection of the white flag down the road toward our lines. As they came abreast of alarge bunker they pulled down their white flag, ran into the bunker and immediately opened fire on our positions.”).650 Refer to § 5.24.7 (Flags of Truce).297