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Commentary - Preamble
Preamble

A preamble – the introductory part of an international convention – usually seeks to explain the rationale behind the text as well as clearly state its object and purpose. But the preamble may also contain additional provisions designed to bridge gaps in the treaty, especially by recalling the general principles that inspired its creation.[18] Leaving aside the complex issue of the legal significance of a preamble to an international treaty (which will often depend on the nature of the treaty itself), we would simply point out as a reminder that a preamble forms part of the context in which the treaty has been adopted and is therefore an important tool for its interpretation.[19]

Preambula paragraph 1

The first paragraph of the preamble defines the legal framework into which the subject matter of Additional Protocol III fits. As already mentioned, the latter must be interpreted according to the spirit and relevant rules of the Geneva Conventions of 12 August 1949, as well as those of the two Additional Protocols of 8 June 1977 where applicable.
Many of the provisions of the Geneva Conventions and their Additional Protocols I and II explicitly refer to the distinctive emblems.[20]An exhaustive list could have been drawn up in this paragraph, but besides being of limited use it would have made the text unnecessarily heavy. A draft version of Additional Protocol III [21] took the opposite approach, simply making a general reference to the relevant Conventions without identifying any particular provisions. The final text is the result of a compromise: as indicated by the expression “in particular”, it only enumerates certain articles of the First Geneva Convention and of Additional Protocols I and II which it seemed useful to highlight due to their particular relevance to emblem usage and display.

Preambula paragraph 2

As explained in the introduction, even though the red cross and red crescent are universal symbols of assistance to victims of armed conflicts and disasters, they do not always enjoy, in certain limited geographical contexts, the respect to which they are entitled. Furthermore, certain States do not identify with either of these two emblems, or wish to be entitled to use both of them simultaneously.
The second paragraph of the preamble therefore explicitly states the main objectives pursued by Additional Protocol III. It is designed to supplement the Geneva Conventions and the first two Additional Protocols by adopting an additional emblem that will enhance the value of the distinctive emblem, especially in operational contexts where the existing emblems might be erroneously perceived as having political or religious connotations. Additional Protocol III also authorizes the use of the additional emblem by National Societies for indicative purposes to signal their membership in the International Red Cross and Red Crescent Movement. Adoption of this instrument would thus further reinforce the universality of the Movement by authorizing the integration within it of National Societies that refuse to adopt, solely and exclusively, the red cross or red crescent emblem.

Preambula paragraph 3

It has already been explained that the emblem of Protocol III (due to its purely "additional" nature) is not intended to replace the emblems recognized by the Geneva Conventions of 1949 (i.e. the red cross, red crescent and red lion and sun). The third paragraph of the preamble merely reiterates that it is possible for States to continue to use one of the emblems provided for by the Geneva Conventions.
A saving clause has nevertheless been included as a reminder that the lawful use of these emblems is obviously subject to conformity with the relevant rules of the Geneva Conventions and, where applicable, their Additional Protocols. Thus, if persons, units or means of transport that are not authorized to display these distinctive emblems were to do so, or if persons, units or means of transport normally authorized to use them were to employ them for purposes other than those for which they have been created, such use would be considered unwarranted or improper (and sometimes perfidy).

Preambula paragraph 4

The fourth paragraph of the preamble recalls the fundamental principle of international humanitarian law that signalling protected status is not an essential condition for protection. Certainly, the distinctive emblems, signs or signals recognized by international humanitarian law greatly facilitate protection by giving it a concrete form of expression; that is where their practical value lies. However, an enemy who should have recognized the protected status of a person or object cannot ignore that right to protection by claiming the absence of these emblems, signs or signals.[22] Indeed, an attempt to justify an attack solely on the grounds that no distinctive sign was displayed could, depending on the circumstances, be considered a war crime.
Here the term “emblems” refers to the red cross, red crescent and red lion and sun on a white ground. The term “signs” has been added in order to indicate that this principle also applies to other distinctive signs recognized by the Geneva Conventions, their Additional Protocols, or any other international humanitarian law instruments; it is understood to mean, for example, signs related to civil defence, [23] works and installations containing dangerous forces [24] or cultural objects.[25] The Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954 specifies, in Article 16 , that the distinctive emblem of the Convention takes the form of a shield, pointed below, per saltire blue and white (a shield consisting of a royal-blue square, one of the angles of which forms the point of the shield, and of a royal-blue triangle above the square, the space on either side being taken up by a white triangle). Lastly, the words “distinctive signals” refer to signals exclusively designed to enable the identification of medical units and transports, as provided for in Chapter III of Annex I to Additional Protocol I .[26]

Preambula paragraph 5

In the words of the commentary on Article 38 of the First Geneva Convention, “the red cross emblem is intended to signify one thing only – something which is, however, of immense importance: respect for the individual who suffers and is defenceless, who must be aided, whether friend or enemy, without distinction of nationality, race, religion, class or opinion.[26] The distinctive emblems must, as a matter of principle, be solely perceived as symbols of aid – visible indications of the protection that must be given to the wounded, sick and shipwrecked as well as to medical personnel, units and transports in the event of an armed conflict. They must necessarily be neutral and devoid of any other connotation.
This is the principle unequivocally reaffirmed by the fifth paragraph of the preamble. It lists some of the meanings (religious, ethnic, racial, regional or political) which are sometimes wrongly attributed to the distinctive emblems and which the High Contracting Parties never intended to confer upon them. Although the text does not explicitly make this point, it seems clear that the list offers only some examples and is not exhaustive.

Preambula paragraph 6

Considering that, during an armed conflict, one purpose of these distinctive emblems is to indicate that the persons or objects bearing them enjoy a special international protection and therefore must not be attacked, any unwarranted or improper use risks undermining the credibility of the entire protective regime. Even in a non-conflict situation, any improper use of the emblem tarnishes its image in the public’s mind and, hence, weakens its protective value in wartime.
For this reason, the sixth paragraph of the preamble rightly recalls the importance of ensuring respect for the legal obligations relating to the emblem. In this regard, it should be noted that the States Party to the Geneva Conventions have undertaken to enact penal legislation (that may also take the form of administrative, regulatory or disciplinary measures) making it possible to prevent and punish improper use of the emblem both in times of peace and war.

Preambula paragraph 7

The seventh paragraph of the preamble is a reminder that the distinctive emblems may serve two essentially different purposes. The first – protective use – is to give visible expression to the protection accorded by the Geneva Conventions to medical personnel, units or transports of the armed forces as well as to other duly authorized organizations, objects and persons. In view of the distinctive emblem’s intended specific function in this case, it must be as large as necessary under the circumstances, in order to be identifiable even from a distance.[28] The second – indicative use – shows that the person or object has a link with the Movement; in this context, the emblem must be comparatively small in size and used in a way that precludes any risk of it being confused with the emblem used as a protective device.[29]
It is important to remember this distinction because the conditions for use of the additional emblem proposed by Additional Protocol III vary according to whether its use is protective or indicative.

Preambula paragraph 8

Paragraph eight of the preamble merely reaffirms, though using different language, the applicable rules of the Movement as stated in Resolution XI adopted by the 10th International Conference held in Geneva in 1921. The resolution stipulates that "No Red Cross Society shall set up a Section, Delegation, Committee or Organization, or have any activity in a foreign country without the consent of the Central Committee of the National Society of that country and of its own Central Committee, especially as far as the use of the name and emblem of the Red Cross is concerned." This point was confirmed by Resolution VII adopted at the 16th International Conference held in London in 1938.[30]
The question arises as to how a National Society operating on foreign territory, and thus outside its "jurisdiction", can ensure that the emblem it intends to use is legally authorized in the area of its activity. Three elements can be taken into consideration. First, if the said emblem is recognized by the 1949 Geneva Conventions and the host State is party to them, there is a presumption that the emblem is legally acceptable. Second, if it is an emblem other than those recognized by the 1949 Geneva Conventions (such as the red shield of David incorporated within the red crystal), an analysis of the national legislation will help determine whether it may be displayed. Finally, especially where national legislation is silent, the decisive criterion will be the authorization (or non-authorization) of the host National Society.

Preambula paragraph 9

Brief reference to these difficulties has already been made in the introduction and commentary on the second paragraph of the preamble. They mainly arise because of the erroneous view sometimes held that the red cross and the red crescent have a religious or political significance or because some National Societies find it hard to choose between the emblems recognized by the Geneva Conventions. The ninth preambular paragraph simply notes this fact without making any sort of value judgement.

Preambula paragraph 10

The last paragraph of the preamble acknowledges that the International Committee of the Red Cross (ICRC), the International Federation of Red Cross and Red Crescent Societies (the International Federation) and the Movement had decided, at the time it was drafted, to change neither their names nor their respective distinctive signs. This statement does not, however, prevent the ICRC and the International Federation as international components of the Movement from using the emblem of Additional Protocol III in certain exceptional circumstances (see especially Article 4 thereof).
Potential modifications to names and emblems will therefore be limited to National Societies that choose to use the red crystal. It should be noted that the adoption of Additional Protocol III has led to modification of the Statutes of the Movement in order to allow National Societies to use the designation and distinctive emblem established by this instrument or a combination of emblems (for indicative purposes) according to the conditions set forth in Article 3.[31] Other documents, such as the Regulations on the Use of the Emblem of the Red Cross or the Red Crescent by the National Societies, must also be amended as a result of Additional Protocol III.

Preambula paragraph 11

Unlike the Conventions of 1949 and their Additional Protocols of 1977, the 17 articles forming the body of the text are not divided into parts, sections or chapters. The first seven articles deal with the substance, while the last ten are devoted to that which, traditionally in the law of treaties, falls under the heading of “final provisions”. The latter are largely inspired by (if not identical to) the text of the Conventions and Additional Protocols I and II. They will therefore be covered only by very brief commentaries pointing out and explaining any divergences from the 1949 and 1977 texts. The commentaries on the substantive provisions, by contrast, will be more detailed.


Notes

18. See Dictionnaire de droit international public, Bruylant, Bruxelles, 2001, p. 865 ("…des dispositions supplétives destinées à combler les lacunes du traité, notamment sous forme de rappel des principes généraux qui l'ont inspirés").

19. See Article 31, paragraph 2, of the 1969 Vienna Convention on the Law of Treaties.

20. However, the four Geneva Conventions of 1949 and the two Additional Protocols of 1977 are not the only international humanitarian law treaties to refer to these distinctive emblems; see also Article 23(f) of the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land and the Regulations concerning the Laws and Customs of War on Land annexed thereto.

21. This refers to the Draft Third Additional Protocol transmitted by the ICRC to the Swiss government which, in its capacity as depositary, sent it to all the States Parties to the Geneva Conventions on 5 July 2000 (hereinafter referred to as previous draft of Additional Protocol III). A second draft, dated 12 October 2000 and taking into account the negotiations held during summer 2000, was circulated by the depositary and formed the basis for discussions held during the Diplomatic Conference of 5-8 December 2005 (see, on this point, paragraph 5 of the Final Act of the Diplomatic Conference). On the various stages of the negotiating process in 2000 of Additional Protocol III see Bugnion, above note 2, pp. 32-36.

22. "… the red cross and red crescent are simply a useful tool, a practical means of seeking to ensure respect for a pre-existing international legal right of protection". Michael Meyer, "The proposed new neutral protective emblem: A long-term solution to a long-standing problem", in International Conflict and Security Law: Essays in Memory of Hilaire McCoubrey, edited by Richard Burchill, Nigel D. White and Justin Morris, Cambridge University Press, Cambridge, 2005, p. 88. Edited by Richard Burchill, Nigel. White and Justin Morris.

23. Article 66, paragraph 4, of Additional Protocol I describes the international distinctive sign of civil defence as an equilateral blue triangle on an orange ground used for the protection of civil defence organizations, their personnel, buildings and matériel and for civilian shelters.

24. Article 56, paragraph 7, of Additional Protocol I states that to facilitate the identification of objects and installations containing dangerous forces, the Parties to the conflict may mark them with a special sign consisting of a group of three bright orange circles placed on the same axis.

25. The Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954 specifies, in Article 16, that the distinctive emblem of the Convention takes the form of a shield, pointed below, per saltire blue and white (a shield consisting of a royal-blue square, one of the angles of which forms the point of the shield, and of a royal-blue triangle above the square, the space on either side being taken up by a white triangle).

26. For a definition of the expression "distinctive signal," see Article 8(m) of Additional Protocol I.

27. ” Above note 4, p. 305.

28. The rule that the emblem when used as a protective device must be identifiable from as far away as possible is reflected in Article 6 of the Regulations on the Use of the Emblem of the Red Cross or the Red Crescent by the National Societies, adopted by the 20th International Conference of the Red Cross in Vienna, 1965, and revised by the Council of Delegates in Budapest, 1991. The Regulations furthermore indicate that the emblem may be lighted or illuminated at night or when visibility is reduced. It shall as far as possible be made of materials rendering it recognizable by technical means of detection and displayed on flags or flat surfaces visible from as many directions as possible, including from the air.

29. Commentary on the First Geneva Convention, Article 44, above note 4, p. 325; Commentary on Protocol I, above note 17, Article 38, pp. 450 (§§ 1538-1539). See also Article 4 of the Regulations on the Use of the Emblem of the Red Cross or the Red Crescent by the National Societies.

30. For the text of these two resolutions, see Handbook of the International Red Cross and Red Crescent Movement, thirteenth edition, Geneva, March 1994, pp. 729-730.

31. The 29th International Conference of the Red Cross and Red Crescent adopted Resolution 1 on 22 June 2006, adapting the Statutes of the Movement to Additional Protocol III. In particular, a National Society is no longer required to use the name and the emblem of the red cross or red crescent in conformity with the Geneva Conventions in order to be recognized; under Article 4, paragraph 5, it is now required to "use a name and distinctive emblem in conformity with the Geneva Conventions and their Additional Protocols."