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Commentary - The distinctive emblem
    [p.1437] Article 12 -- The distinctive emblem

    General remarks

    4729 For the protection of the wounded, sick and shipwrecked to be effective, the personnel assisting them, the places sheltering them and the transport used [p.1438] to transport them, all of which also enjoy protection under the Protocol (Articles 9 -- ' Protection of medical and religious personnel, ' and 11 -- ' Protection of medical ' units and transports), must be identifiable. If they could not be identified, the protection accorded them would be illusory.

    4730 Such identification is possible by the use of the distinctive emblem of the red cross or red crescent. (1) Such use must be regulated and supervised so as to avoid abuse. This is the aim of the present article, which constitutes the latest stage in the development of the principle that respect and protection are due to the wounded, sick and shipwrecked, a principle already contained in common Article 3 of the Conventions, and reaffirmed in Article 7 of Protocol II ' (Protection and care). '

    4731 This provision is based on the relevant articles of the Conventions, viz., Chapter VII of the first Convention and Chapter VI of the Second Convention, both entitled "The distinctive emblem", as well as on Articles 18 , 20 and 22 of the fourth Convention: these rules were supplemented in Protocol I by Article 18 ' (Identification) ' and Annex I to that Protocol ' (Regulations concerning identification) '.

    4732 The basic content of the draft presented by the ICRC was retained, although the version that was finally adopted was worded more concisely. (2)

    The distinctive emblem

    4733 The red cross and red crescent emblems may have two very different functions: a protective function in time of armed conflict, and an indicatory function which applies, even in time of peace, to designate persons or objects attached to a red cross or red crescent institution, without entitling them to protection.

    4734 The term "distinctive emblem", as used in both Protocols, refers only to the emblem used for the purpose of protection. Article 8 ' (Terminology), ' subparagraph (1), of Protocol I reads:

    ""Distinctive emblem" means the distinctive emblem of the red cross, red crescent or red lion and sun on a white ground, when used for the protection of medical units and transports, or medical and religious personnel, equipment or supplies." (3)

    Article 12 was adopted on the basis of almost exactly the same definition, which had been drafted for Protocol II. (4)

    4735 The distinctive emblem concerned here protects those persons and objects which are mentioned in the provision, to the exclusion of all others, i.e. "medical and religious personnel and medical units, and [...] medical transports". Therefore the definition is of paramount importance and we should here recall the main elements of the negotiations which took place regarding Article 12.

    [p.1439] The extended use of the distinctive emblem

    4736 The ICRC draft proposed enlarging the use of the distinctive emblem by extending it to red cross or red crescent organizations:

    "The emblem of the red cross (red crescent, red lion and sun) on a white ground, which is the distinctive emblem of the medical personnel, medical units and means of medical transport of the parties to the conflict and of Red Cross (Red Crescent, Red Lion and Sun) organizations, shall be respected in all circumstances." (5)

    4737 Under the Conventions, the National Red Cross or Red Crescent Societies are only entitled to the indicatory sign, of a somewhat smaller size, and the protective emblem was reserved for military medical services. (6) To lend force to its proposal, the ICRC stressed the key role played by the Red Cross in situations of non-international armed conflict, particularly for the non-governmental party; in the absence of organized medical services, the services of the National Red Cross Society would have an even greater importance, as it is the only humanitarian organization which would continue to function for both parties. (7)

    4738 The Working Group which examined the article studied this proposal thoroughly. It came to the following conclusions:

    "When the question of the need for an extended use of the distinctive emblem had been discussed in the Working Group, the Group had heard of a number of cases in non-international armed conflicts in recent times in which the need for local branches of the Red Cross, or even groups authorized to care for the wounded and the sick in such circumstances, to use the distinctive emblem had been clearly brought out." (8)

    "The Working Group had discussed the most appropriate place in draft Protocol II for a rule meeting the requirement for an extended use of the distinctive emblem. Either a specific rule could be inserted in Article 18 [12] or the problem could be solved by a suitable definition of medical personnel in Article 11(f) [Definitions]." (9)

    At first the second possibility was favoured. Thus a draft definition of medical personnel had been drawn up which included the following categories: "medical personnel of Red Cross (Red Crescent, Red Lion and Sun) organizations [...] who are recognized and authorized by one of the parties to the conflict", and "medical personnel of [...] other aid societies located within the territory of the High Contracting Party in whose territory an armed conflict is taking place, who are recognized and authorized by one of the parties to the conflict". (10)

    [p.1440] 4739 Failing a definition in the Protocol itself, the tenor of the discussions seems to indicate that the Conference pronounced itself in favour of extending the use of the emblem. Retaining the reference to "Red Cross organizations" in Article 18 of Protocol II ' (Relief societies and relief actions), ' argues in favour of this interpretation. The term "Red Cross organizations" had been used in the definition to:

    "cover not only assistance provided on the Government side, but also already existing Red Cross groups or branches on the side opposing the Government and even improvised organizations which had come into existence only during the conflict." (11)

    4740 Thus it is clear that in such cases the right to use the emblem is extended as regards medical personnel, units or transports for pragmatic reasons, without recognizing as such a new Red Cross or Red Crescent Society.

    4741 For the rest, National Red Cross or Red Crescent Societies in time of armed conflict often carry on with their everyday social activities as in peacetime. For activities other than rendering assistance to civilian and military medical services, the indicatory sign may continue to be used; it should be smaller than the protective emblem. (12)

    Is the distinctive emblem a compulsory condition for the right to protection?

    4742 The use of the emblem is optional; medical personnel and medical units and transports are protected in any event: such protection is expressly granted in Articles 9 ' (Protection of medical and religious personnel) ' and 11 ' (Protection of medical units and transports). ' However, it is the direct interest of those enjoying protection to ensure hat they can be identified, not only by the adverse party, but also by the armed forces or armed groups of their own side, particularly in a non-international armed conflict where, in most cases, the area of confrontation is not well-defined, or shifts frequently.

    4743 Article 18 ' (Identification), ' paragraph 1, of Protocol I, provides that "each Party to the conflict shall endeavour to ensure that medical and religious personnel, and medical units and transports, are identifiable". (13)

    4744 According to Article 12 of Protocol II, "the distinctive emblem [...] shall be displayed". In French the future tense is used, rather than the imperative: "le signe distinctif [...] sera arboré". This formula shall be taken to express a right and invites use to be made thereof.

    [p.1441] The size of the emblem

    4745 The distinctive emblem must be as clearly visible as possible: "the need to make the emblem as large as possible was a matter of common sense and logic; it was not necessary for it to be mentioned explicitly [...]" (14) This was the view expressed by the Committee. Annex I to Protocol I deals with the size of the emblem in the same way, by stating in Article 3 ' (Shape and nature), ' paragraph 1, The distinctive emblem [...] shall be as large as appropriate under the circumstances." (15)

    Direction of the "competent authority concerned"

    4746 If the emblem is to be effectively respected, it is essential that its use should be subject to supervision. Otherwise anyone might be tempted to use it. The protection conferred by the distinctive emblem requires that its use be subject to the authorization and supervision of the competent authority concerned. It is up to each responsible authority to take the measures necessary to ensure that such control be effective. The competent authority may be civilian or military. For those who are fighting against the legal government this will be the de facto authority in charge. It should be recalled that the threshold for application of the Protocol requires a certain degree of organization in general, and in particular the ability of the insurgents to apply the rules of the Protocol. (16)

    The distinctive emblem "shall be respected in all circumstances"

    4747 The obligation is absolute and applies at all times and in all places, barring such exceptional cases as referred to in Article 11 ' (Protection of medical units and transports), ' paragraph 2. (17)

    [p.1442] "It shall not be used improperly"

    4748 The emblem may only be used to protect the persons and objects mentioned in this article, i.e., medical and religious personnel and medical units and transports. Any other use constitutes improper use and is consequently prohibited. (18)

    ' S.J. '

    * (1) [(1) p.1438] On the emblem of the red lion and sun, cf. supra, commentary Art. 9, note 10, p. 1419;

    (2) [(2) p.1438] Draft Art. 18;

    (3) [(3) p.1438] See commentary Art. 8, sub-para. (1), of Protocol I, supra, p. 134;

    (4) [(4) p.1438] The term "matériel" was replaced by the term "medical equipment and supplies"; cf. O.R. XIII, p. 347, CDDH/II/386;

    (5) [(5) p.1439] ' Commentary Drafts, ' p. 150;

    (6) [(6) p.1439] Cf. Arts. 38 and 44, First Convention; cf. also Art. 18, Fourth Convention;

    (7) [(7) p.1439] O.R. XI, p. 289, CDDH/II/SR.28, para. 50;

    (8) [(8) p.1439] Ibid., p. 430, CDDH/II/SR.40, para. 6;

    (9) [(9) p.1439] Ibid., para. 8;

    (10) [(10) p.1439] Cf. also O.R. XIII, p. 346, CDDH/II/386;

    (11) [(11) p.1440] Cf. O.R. XI, p. 430, CDDH/II/SR.40, para. 9;

    (12) [(12) p.1440] See ' Commentary Drafts ', p. 150;

    (13) [(13) p.1440] Cf. commentary Art. 18, Protocol I, supra, p. 221;

    (14) [(14) p.1441] O.R. XI, p. 437, CDDH/II/SR.40, para. 49;

    (15) [(15) p.1441] Cf. commentary Annex 1, Protocol 1, supra, p. 1167;

    (16) [(16) p.1441] See Article 1 and the commentary thereon, supra, p. 1347;

    (17) [(17) p.1441] Cf. commentary Art. 11, para. 2, supra, p. 1435;

    (18) [(18) p.1442] Cf. ' Commentary Drafts ', p. 150; O.R. XI, pp. 433 and 438, CDDH/II/SR.40, paras. 21, 27 and 57. N.B. also the provisions relating to the use of the emblem and the repression of the misuse thereof (Arts. 44 and 53, First Convention; 44 and 45, Second Convention; Art. 18, para. 4, Arts. 38 and 85, para. 3 (f), of Protocol I). Furthermore, the International Conferences of the Red Cross have repeatedly encouraged States Parties to the Conventions to reinforce their national legislation to repress the misuse of the emblem. See, for example, Resolution XI, adopted by the XXIIIrd International Conference of the Red Cross in Bucharest in 1977;