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Commentary - Art. 45. Chapter VI : The distinctive emblem
    ARTICLE 45. -- PREVENTION OF MISUSE


    This provision corresponds to part of Article 21 of the 1907 Convention . The other prohibitions contained in that Article are now covered by Article 51 of the present Convention.
    Article 21 of the 1907 text nevertheless contained one stipulation which is no longer included, namely for "punishing, as an unjustifiable adoption of naval or military marks" the unauthorized use of the red cross emblem by ships. That severe rule, made [p.248] effective by the reference to criminal legislation, was well suited for offences which, in view of the special conditions prevailing at sea, are in most cases very grave (1).
    The rule was considered too strict to be retained in the Convention, but nothing prevents national legislators from resorting to it for the repression of serious cases such as deliberate misuse of the protective emblem for the purposes of war.
    On the other hand, the new Article is broader in scope than the earlier one, since it now applies not only to the emblem of a red cross on a white ground, but also to the other two emblems now recognized by the Convention -- namely the red crescent, and the red lion and sun -- by virtue of the reference to Article 43, paragraph 7 .
    The present Article is a shortened version of Articles 53 and 54 of the First Geneva Convention of 1949. Since the latter instrument is sedes materiae as regards the distinctive emblem, as we have already seen, the reader should refer to the commentary on those Articles. Moreover, Article 45 of the present Convention refers only to Article 43 and is intended merely to prevent misuse of the emblem displayed on ships. Reference must be made to the First Convention in regard to the uses of the emblem mentioned in Articles 41 and 42 (personnel, equipment, etc.).
    The clauses of the Convention which protect ships claiming immunity by means of the red cross emblem must be enforced in all States by national legislation. Apart from the measures of an administrative nature which the competent authorities must take at all times, each country must enact legislation to prohibit and punish abuses, both collective and individual.
    Offences against the protective sign in war-time (which will be the most frequent case here) come naturally under the penal legislation which deals with offences against the laws and customs of war. Other abuses will usually form the subject of special laws in application of the Geneva Conventions in which might be included a provision giving effect to the prohibition laid down in [p.249] the present Convention, and in particular in Article 45. In this connection, reference should be made to the "Model Law for the protection of the Red Cross name and emblem" which was drawn up by the International Committee of the Red Cross to serve as a general guide with a view to assisting the legislative task of the States in this regard (2).
    Whereas Article 44 is rightly included in the Chapter on the distinctive emblem, it would have been more logical to place Article 45 in Chapter VIII, relating to the repression of abuses and infractions. It might even have been incorporated in Article 50 (by which the Powers undertake generally to take the measures necessary for the suppression of all acts contrary to the provisions of the Convention). At the 1949 Diplomatic Conference, Article 45 was drawn up as a separate provision to avoid re-opening discussion on Article 50 which had been formulated by the joint Committee as one of the Articles common to all four Conventions.
    Article 45 is mandatory, whereas the corresponding provision in the 1907 Convention was not. The earlier clause merely laid down that the signatory Powers whose legislation was inadequate were to adopt or propose to their legislatures the measures necessary to prevent abuse of the emblem. As in the case of the First Convention, which contains a corresponding provision, the Diplomatic Conference rightly rejected a wording which gave legislators the option of refusing the Government's "proposals" partly or in toto. It is the Contracting Parties themselves -- in other words, sovereign States, whose will is expressed by their plenipotentiaries and then by parliamentary votes -- which, on drafting and ratifying an international Convention, accept all the obligations resulting from it. There is no reason why the protection of the red cross emblem, which is so important a case, should constitute a less imperative duty. This singular anomaly has fortunately now disappeared.
    Wherever legislation is inadequate -- and this is so in the case of all countries, if only as regards the newly-prescribed protection accorded to the red crescent and the red lion and sun -- it must be amended. The Convention sets no time-limit. If at all possible, [p.250] the necessary changes in the legislation of each country should already have been made by the time the Convention comes into force for it, that is, six months after ratification or accession.
    Finally, it is not sufficient merely to enact legislation, however adequate in itself. Orders must be given, a close watch kept, and those responsible prosecuted. For it is only at the cost of unremitting effort that the responsible authorities can succeed in defending the red cross emblem and preserving inviolate its protective value and profound significance. Let it never be forgotten that human lives may be at stake.


    * (1) [(1) p.248] In parallel, Article 23 (f) of the Regulations
    annexed to the Fourth Convention of The Hague of 1907
    forbids the "improper use of...the distinctive badges of
    the Geneva Convention" together with improper use of a
    national flag or military insignia and uniform;

    (2) [(1) p.249] The text of this model law may be found in
    ' Commentary I, ' p. 395 ff.;