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Commentary - Indicative use of the third Protocol emblem
Article 3 - Indicative use of the third Protocol emblem

1. Paragraph 1

A National Society is free to decide to use the third Protocol emblem for indicative use.[44] A State party to Additional Protocol III would simply need to amend its national law governing the use of the emblem so as to implement the provisions of Protocol III.


Article 3, paragraph 1, offers two new possibilities as well. First, National Societies may decide to use this additional emblem with one or a combination of the existing 1949 emblems incorporated within it. [45] Such incorporation, provided for in paragraph 1 a), is not subject to any particular conditions. Though these illustrations are not intended to be exhaustive, the main incorporation options are as follows: [46]



Second, paragraph 1 b) grants a specific place to “another emblem” that may be incorporated within the third Protocol emblem, provided that it meets two cumulative conditions – one substantive, the other a formality. The substantive condition is that a High Contracting Party must already have been using that other emblem as its regular emblem for a period long enough for it to have become known as the emblem of the Society – this is the meaning of the phrase "effective use"; the formality requires that it must have been the subject of a communication to the High Contracting Parties to the Geneva Conventions and the ICRC through the depositary prior to the adoption of Additional Protocol III. The only emblem that can meet both of these conditions is the red shield of David, which has been used by the Israeli National Society (Magen David Adom in Israel) since the 1930s; it was also the subject of a communication through the depositary to the High Contracting Parties and the ICRC in Israel's reservation to its ratification of the Geneva Conventions on 6 July 1951. [47] The outcome of this provision is that the red shield of David is the only other emblem which qualifies for inclusion in the third Protocol emblem.


The title of Article 3 indicates clearly that the option of incorporation is restricted to use of the emblem for indicative purposes. For protective purposes, by contrast, Article 2 of Additional Protocol III requires use of the red crystal alone and without incorporation, a requirement easily explained by the fact that the red crystal – and no other sign – is recognized as an additional emblem. The reason is also practical, as tests revealed that the blank space within the crystal was important in ensuring good visibility from a distance and, consequently, greater protection.[48]


2. Paragraph 2

Under certain conditions, a National Society that has chosen to incorporate within the third Protocol emblem one or more of the emblems defined in paragraph 1 is enabled, by paragraph 2, to use only the name of this/these other emblems and to display it/them without incorporation inside the red crystal. For example, a National Society which chooses to incorporate the red cross and the red crescent in the third Protocol emblem could, under certain conditions, use both these emblems side by side without having to place them within the frame formed by the red crystal.
The wording employed by Article 3, paragraph 2, dissociates use of the name of these emblems – which is apparently authorized without restriction – from the possibility of displaying them, which can be done solely in the national territory of the State. As a result, no objection may be raised to the use by a National Society of the name of the emblems referred to in paragraph 1 a) or b), either in the territory of the State or abroad. Similarly, no objection may be raised to the use of these emblems – even if they are not incorporated within the third Protocol emblem – in the territory of the State of origin of the National Society in question. By contrast, no provision is made for the use of these other emblems outside the national territory. In other words, once the said National Society engages in activities beyond its borders, it should incorporate the other emblem(s) within the third Protocol emblem.
In practice, this means that the red cross, the red crescent and the red lion and sun – emblems recognized by the Geneva Conventions – may as before be used in foreign territory by a National Society that has chosen one of them as its emblem. However, once a National Society has decided to incorporate one or a combination of these emblems or “another emblem” (within the meaning of Article 3, paragraph 1 b)) within the third Protocol emblem, it may engage in an activity outside its territory only when showing that emblem incorporated within the third Protocol emblem. In all these cases, it is useful to remember that the emblems, even when incorporated within the third Protocol emblem, may only be used according to the rules of the Movement as mentioned in the commentary on paragraph 8 of the preamble.
Lastly, it should be noted that “national territory” – a constituent element of a State – corresponds to an established notion in public international law. [49] Article 3, paragraph 2, of Additional Protocol III does not depart from the traditional understanding of this basic notion, nor is it its aim or purpose to recall its content.

3. Paragraph 3

This paragraph is the counterpart to Article 2, paragraph 4, concerning protective use. It authorizes a National Society to temporarily use the third Protocol emblem for indicative purposes, no matter what emblem it has adopted. It is interesting to note, however, that this provision grants National Societies the option of using only the red crystal, while Article 2, paragraph 4, provides more broadly for the State to resort to one of the emblems recognized by the Geneva Conventions other than the one traditionally used by the medical services and religious personnel of its armed forces.
Another difference from Article 2, paragraph 4, is that Article 3, paragraph 3, imposes relatively strict conditions on opting for this solution. First, use of the red crystal must conform with national legislation. Next, this option is available only in exceptional circumstances; accordingly, the red crystal may be used only on a temporary basis and the National Society must return to its customary emblem as soon as the exceptional circumstances have passed. [50] Last, the decision to use a temporary emblem must facilitate the National Society’s work. These conditions are cumulative. It is difficult to determine in advance which situations would meet these criteria. It should simply be emphasized that there apparently was no wish on the part of the drafters to restrict unnecessarily the applicability of this provision; they were careful however to ensure that Article 3, paragraph 3, does not become a basis for the permanent substitution of the red crystal to the traditional emblem of the National Society.
Although this latter option does not appear explicitly in Additional Protocol III, it is reasonable to imagine that a National Society may be led to temporarily use the red crystal for protective purposes when called upon to put its personnel, its units and/or its means of transport at the disposal of States' armed forces. Given that the medical services of the armed forces have the right to use this emblem by virtue of article 2, paragraph 4, it is difficult to imagine that National Societies cannot be authorized to use the same distinctive sign in order to mark and identify their personnel placed at the disposal of the armed forces.

4. Paragraph 4

Article 3, paragraph 4, is a saving clause preserving the legal status of the distinctive emblems recognized by the Geneva Conventions and Additional Protocol III. Their status can thus never be affected by the contents of this article. This provision also makes it plain that other emblems – the use of which without incorporation is authorized solely in the national territory – incorporated into the red crystal in conformity with paragraph 1 do not acquire any separate international legal status as a result thereof. This clarification was included in response to concerns that the provision would be interpreted as granting the double emblem described in Article 3(1) or the red shield of David a recognition beyond this limited context.


Notes

44. The option to use the red crystal by itself (without incorporating other emblems within it) for indicative purposes flows only implicitly from the wording of Article 3, paragraph 1, of Additional Protocol III. It is explicitly affirmed, however, by Article 2 of the Annex to this Protocol.

45. A previous draft of Additional Protocol III detailed the size of the emblem (or emblems) to be incorporated within the red crystal. But this provision was ultimately considered superfluous and removed from the treaty. A brochure entitled "Red cross, red crescent, red crystal emblems-Design guidelines." (June 2006), written under the aegis of the International Federation, gives precise specifications for the design of the emblems recognized by the Geneva Conventions, including the third Protocol emblem (available at: http://www.ifrc.org/who/emblems.asp). The use of emblem designs that are different from those recommended in the brochure will not alter the protective or indicative value of the emblem, and can never justify an attack.

46. The design options incorporating the red lion and sun within the crystal are not reproduced here.

47. This reservation stated that while respecting the inviolability of the distinctive signs and emblems of the Convention, Israel would use the Red Shield of David as the emblem and distinctive sign of the medical services of her armed forces.

48. It should be noted that Article 5 of the Regulations on the Use of the Emblem of the Red Cross or the Red Crescent by the National Societies stipulates that the emblem used as a protective device shall always retain its original form; that is, nothing shall be added either to the cross, the crescent or the white ground.

49. The notion of "territory" is also referred to in the Red Cross and Red Crescent context in article 4 of the Statutes of the Movement.

50. The question arises as to what is covered by the concept of exceptional circumstances (which is also found in Additional Protocol III, Article 4). In this regard, a parallel could be traced with Article 2, paragraph 4, which, although without using this term, refers to the need to enhance protection. Absent a more precise definition, the terms used imply application in restrictive circumstances.