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Commentary - Emblems of nationality
    [p.461] Article 39 -- Emblems of nationality


    [p.462] General remarks

    1562 Emblems of nationality are essentially customary in nature. In international society they constitute a generally recognized language which is accorded the same respect as the spoken or written word in relations between individuals. The term "nationality" normally relates to a political entity embodied by a State. However, in certain situations it can also indicate a connection with an entity which is a "Party to the conflict" but not a State. This applies in particular in cases of conflicts of self-determination mentioned in Article 1 ' (General principles and scope of application), ' paragraph 4.

    1563 This article makes a distinction between the emblems of nationality of neutral States, which form the object of paragraph 1, and the emblems of nationality of the adverse Parties dealt with in paragraph 2. Paragraph 3 confirms the existing rules applicable to espionage and armed conflict at sea.

    Paragraph 1 -- Emblems of nationality of neutral or other States not parties to the conflict

    1564 Neutrality is a status which is defined in relation to war, and which designates the position of States which do not participate in an armed conflict. Traditionally, i.e., before the appearance of treaties restricting or prohibiting the use of force by nations as a political instrument, neutrality was always defined in terms of the impartial attitude of a third State vis-à-vis the belligerent States. Recognized by the latter, this neutrality formed a source of mutual rights and duties, as codified in the Hague Conventions. (1) This is known as integral neutrality or neutrality in the traditional sense.It is not the only characteristic of this neutrality to abstain from any intervention in the war, whether this would be of a political, economic or military nature, which also implies an impartial attitude. (2) However, the general prohibition on resorting to war, on the one hand, and ideological differences, on the other, have gradually given birth to a concept of neutrality which is known as qualified or quasi-neutrality, or even to a status of non-belligerence where the criterion of impartiality is absent. Thus, with regard to any situation of armed conflict, there are, or there could be, two categories of third States, as described in this paragraph namely "neutral States" and "other States [p.463] not Parties to the conflict". (3) Of importance here, is that neither of these categories participate directly in the hostilities, and that the rules elucidated below apply in both cases.

    ' Permitted use and limitations '

    1565 The prohibition of the use of the emblems of nationality of neutral or other States not Parties to the conflict is absolute "in an armed conflict". This means that they may be used "as long as they are not used for the promotion of the interests of a Party to the conflict in the conduct of that conflict". (4) If this is not the case, the use is never permitted. The above-mentioned Hague Convention V (5) does not consider services rendered in matters of police or civil administration as acts in favour of one of the belligerents (Article 18(b) ). Thus the use of the neutral flag would be authorized in these circumstances, obviously on the condition, as regards police services, that they are not incorporated in the armed forces and do not participate in combat. (6)

    "Also it is clear that Article 37 [39 ] is not intended to prohibit or restrict neutrals -- or indeed any States or their agencies from using their own flags, emblems etc." (7)

    However, it goes without saying that the Party to the conflict remains responsible for this use in its territory. This concerns the recognized privileges granted to diplomatic missions and the heads of missions who "have the right to use the flag and emblem of the sending State on the premises of the mission, including the residence of the head of the mission, and on his means of transport". (8)

    1566 With regard to consular representation:

    "the national flag of the sending State may be flown and its coat of arms displayed on the building occupied by the consular post and at the entrance door thereof, on the residence of the head of the consular post and on his means of transport, when used on official business". (9)

    The last-mentioned facility is important when acting as a Protecting Power; its representatives can be called upon to move around frequently and may even have to get close to areas where hostilities take place. They will do so under cover of the neutral flag; such use is perfectly lawful.

    1567 According to the Hague Convention V, the responsibility of a neutral Power is not engaged by the fact that individuals have crossed the frontier separately to [p.464] offer their services to one of the belligerents (Article 6 ). These individuals have no right whatsoever to use the flags, emblems, insignia or uniforms of the neutral State of their origin. These "volunteers" could raise thorny legal problems if this rule is not respected. Moreover, such acts would be perfidious.

    1568 On the other hand, the converse applies to the medical services of a neutral or other State not Party to the conflict, which are authorized to lend their assistance to a Party to the conflict. They can display their national flag in all circumstances except under orders to the contrary by the military authority, even if they fall into the hands of the adverse Party. (10) Hospital ships which originate from a neutral State display, in addition to their national flag and the red cross emblem, the flag of the Party to the conflict under whose authority they have been placed. (11) These various activities are not such as to "favour the interests of a Party to the conflict," since they have an exclusively humanitarian character, and the use of the emblems of the neutral State is consequently in accordance with the spirit and the letter of this paragraph in these circumstances. The same applies to medical aircraft made available to a Party to the conflict by a neutral or other State not Party to the conflict, (12) which should display, in addition to the red cross emblem, their normal emblems of nationality. (13) As regards civilians who are nationals of neutral States and resident in the territory of a Party to the conflict, and who find themselves in the middle of military operations, this paragraph does not seem to prohibit them from using their national flag to try and broadcast their status of neutrality, provided there is no military objective in the vicinity.

    1569 The use of the neutral flag for the purposes of espionage is certainly prohibited, as this constitutes an intervention of a military nature. In addition, the principle of impartiality would not be respected. It should also be noted that the Convention for the Protection of Industrial Property prohibits the misuse of official coats of arms (14) and consequently any use of the coat of arms of a neutral State by a Party to the conflict for the purpose of espionage.

    1570 With regard to terminology, it should be noted that whereas the French text contains the word "symboles", the English version uses the expression "emblems" ("flags or military emblems, insignia or uniforms") as does the Spanish text ("banderas o [...] emblemas, insignias o uniformes militares"). As these terms are roughly synonymous in this context, they should not be seen as contradicting each other, but as different customary methods of expressing identical [p.465] principles. (15) The prohibition concerns each element individually, as indicated by the conjuction "or", and therefore refers to any customary sign used by the States concerned.

    1571 In conclusion, it is appropriate to emphasize the fact that all matters relating to neutrality are of great importance to the Red Cross. Apart from the cases mentioned above, respect for the rules of neutrality is fundamental for carrying out the mandate of a Protecting Power. This includes respect for this paragraph. Although some have condemned the concept of neutrality in our times, this is because they have done so from a different point of view, the point of view of the threat to humanity of contemporary developments. (16) However, in the field of law, particularly the field of law applicable in the case of armed conflict, the concept of neutrality retains its importance. By sheltering a neutral State from military operations, this concept makes it possible to carry out humanitarian activities for the benefit of the States involved in the conflict.

    Paragraph 2 -- Emblems of nationality of the adverse Parties

    1572 All armies in the traditional sense still possess today their own distinctive national flags, emblems, insignia and military uniforms. When the fate of a war was decided in a single day in a single battle, it was enough to wear shoulder bands of a particular colour to indicate to which side the combatants in the field belonged. Standards, banners and ensigns ensured the cohesion of an army by rallying the combatants around their leader. However, in order to start out on a campaign, an outfit was needed that could stand up to the rigours of war. Such a system came into general use with the introduction of large national armies which felt a great aversion towards combatants without uniform. (17) Nevertheless, in exceptional situations simply wearing a crest, an armlet or a shirt of a particular colour was acceptable. The devastating fire power of modern armies eventually led to the adoption of military uniforms in colours which merged with the background to such an extent that nowadays the colour of all uniforms is more or less similar. This could obviously not constitute a breach. As a result the insignia become even more important. The same applies to heavy artillery, tanks, aircraft etc. which are supplied in large numbers throughout the world by a few manufacturers. They are all the same model, and very often it is only the emblems of nationality which unequivocally identify to which side they belong. In case of [p.466] a coalition, a common sign can be adopted by the allies.

    1573 Traditionally the use of the emblems of nationality of the enemy in combat was strictly prohibited by the laws of war. Lieber's code leave no room for doubt in this respect. (18) However, Article 23(f) of the Hague Regulations of 1907 merely prohibited their "improper use", which left ample room for controversy. (19) The famous Skorzeny case (20) could only further stir up feelings about this issue. The prohibition on "improper use" is not a pure and simple prohibition; it is only a relative prohibition. It requires a definition of the term "improper". The first ICRC draft, presented to the Government Experts in 1972, retained in Article 33 (21) the rule as it had been worded in The Hague, adding that the use of national emblems of the enemy is always forbidden in combat. The experts themselves were divided on this question. Some preferred a pure and simple prohibition, (22) believing that the Hague formula had given rise to excessive misuse. At most, they considered that an exception might be made in situations such as those dealt with in the Third Convention (prisoners of war) and in occupied territory. Others maintained that only the use with the intention of directly facilitating acts of combat should be prohibited. (23) There was a general opinion that there was undoubtedly a reciprocal military advantage in formulating a prohibition. Finally, the draft presented by the ICRC to the Diplomatic Conference proposed the prohibition of the use of the enemy flags, military insignia and uniforms in order to shield, favour or impede military operations (Article 37). The controversy arose again between those who wished to limit the prohibition to attacks, (24) and those who favoured a more restrictive concept. (25) The final wording is a compromise between these two positions in the sense that it responds to the concerns of the former as well as those of the latter.

    1574 This text, which covers attacks, i.e., acts of violence committed against the adversary, whether these acts are offensive or defensive (Article 49 -- ' Basic rule and field of application, ' paragraph 1), and all situations directly related to military operations, put an end to the long-standing uncertainty arising from both the imprecise text of The Hague, and from unclear customary law, as well as from [p.467] the Skorzeny case. (26) However, the fact remains that certain delegations at the Diplomatic Conference considered that any regulation which did not limit itself to attacks would go beyond existing law, (27) although this opinion was not shared by the Conference.

    1575 The prohibition formulated in Article 39 , "while engaging in attacks or in order to shield, favour, protect or impede military operations", includes the preparatory stage to the attack (see the first sentence of Article 44 -- ' Combatants land prisoners of war, ' paragraph 3). It means that every possible exception should always be examined on its merits, a point that legal experts had stressed throughout.

    ' Permitted use and limitations '

    1576 It is appropriate to recall that, in accordance with the Vienna Convention on Diplomatic Relations, the head of a mission retains his privileges, i.e., the right to use the flag and emblem of the State he represents, up to the moment that he leaves the country "even in case of armed conflict" (Article 39 , paragraph 2). Moreover, a break in diplomatic relations does not ipso facto imply a break in consular relations and therefore the same applies to consuls until there is a break. In general, prisoners of war wear their own uniforms (Third Convention, Article 27 , paragraph j) in the territory of the Detaining Power. Conversely, if prisoners of war do not have uniforms of the army to which they belong, or if these uniforms are not suitable for the climate, they can wear the uniforms of the enemy, though without insignia. A prisoner of war who escapes may be inclined to put on the uniform of the enemy in order to conceal, facilitate or protect his escape and hinder the search for him. If he is caught before successfully completing his escape, he will be liable to disciplinary punishment (Third Convention, Article 93 , paragraph 2). If he is captured again after successfully escaping, he is not liable to any punishment (Third Convention, Article 91 , paragraph 2). Under the provisions of the Hague Regulations, there is no doubt whatsoever that wearing an enemy uniform is not prohibited in this case. (28) A delicate question arises with [p.468] regard to military ' matériel ' captured on the battlefield. For example, it is understood that a tank captured from the enemy on the battlefield may immediately be used against the adversary on condition that the emblems of nationality are removed. However, up to now it has been assumed that such ' matériel ' could be evacuated to the rear even when equipped with the emblems of the nationality of the adverse Party, as long as fire is not opened from the tank until the emblem has been removed. One argument in favour of a clear-cut interpretation is that, quite apart from the letter of the provision under discussion, the Conference certainly wished to put an end to the excessive number of abuses which had resulted from the Hague Regulations. These included not only infiltration under cover of enemy uniform -- as in the Skorzeny case mentioned above -- a practice which has been adopted on a number of occasions by troops since the Second World War, but also the approach and opening of fire on an adversary at a short distance so that the adversary would in this way be completely unable to defend himself. It should be noted once more that occupation of a country results in complex situations in which emblems of nationality of the occupying forces and the occupied country can appear simultaneously without violating the present rule.

    ' Uniform '

    1577 What constitutes a uniform, and how can emblems of nationality be distinguished from each other? The Conference in no way intended to define what constitutes a uniform. In temperate climates it is customary for a uniform to consist of regulation headdress, jacket and trousers, or equivalent clothing (flying suits, specialist overclothes etc.). However, this is not a rule, and "any customary uniform which clearly distinguished the member wearing it from a non-member should suffice". (29) Thus a cap or an armlet etc. worn in a standard way is actually equivalent to a uniform.

    1578 The uniform and other emblems of nationality are visible signs. Although certain kinds of battle dress of different countries are very similar nowadays, it is nevertheless possible to distinguish allied armed forces from enemy armed forces by means of characteristics of outfitting and other signs of nationality. Furthermore, this makes it possible to distinguish members of the armed forces from the civilian population. Thus it is necessary that the uniform, or whatever replaces it, of each Party to the conflict should be known to the adverse Party. The Hague Conference of 1907 considered requiring a notification to this effect between the adverse Parties so that the troops could be instructed on the subject, but this question was abandoned, (30) leaving each country responsible for acquiring information with regard to the uniforms of its potential enemies. (31) This is a [p.469] common task for diplomatic missions, particularly for military attachés, who are invited to be present at military exercises and parades in the country where they are posted. Should the need arise, one Party to the conflict may request its adverse Party publicly to inform it of the sign or signs which are used by way of uniform or emblem of nationality by its armed forces. (32)

    1579 A final point which has already been raised with regard to Article 38 ' (Recognized emblems) ' concerns the insignia and the uniform of the personnel of the United Nations, particularly the forces responsible for peacekeeping. A number of representatives did in fact demonstrate the necessity of ensuring better protection for the emblems of the United Nations in these circumstances. It was finally decided not to do so in this article,

    "but to consider further how such protection could best be provided. The Rapporteur pointed out that, quite apart from this Protocol, the United Nations itself could try to improve that protection through agreements concluded with the States concerned with a particular United States force". (33)

    Paragraph 3 -- Proviso on the rules applicable to espionage and armed conflict at sea

    1580 The wording of this paragraph varied considerably during the course of the discussions. The first text, adopted by Committee III, was much simpler than the final text, and did not include any mention of either Article 37 or of espionage. (34) However, the Rapporteur expressed some doubts based on the fact that the Committee had had no intention of modifying the law applicable with regard to espionage, particularly Article 31 of the Hague Regulations, by means of this article. In fact, according to this article, a spy who succeeds in escaping does not incur any punishment for being a spy, if he is captured later. However, if he used the uniform of the adversary, it was feared that without Article 39 , paragraph 3, "he could still presumably be punished for violations of the laws of war, which, it might be asserted, would include this article". (35) Similarly, when Committee III adopted Article 37 ' (Prohibition of perfidy), ' paragraph 1(d), the Rapporteur reported that the reference to neutral emblems was not intended to affect the law governing the use of neutral flags in war at sea. Therefore the Committee suggested that:

    [p.470] "the Drafting Committee [should] consider the question whether Article 37 [39 ], paragraph 3, might not be made applicable specifically to Article 35 [37 ], as well as to Article 37 [39 ], so that no doubt could arise on this question". (36)

    The Drafting Committee took up the proposal of the group of technical advisers to add the words "or Article 37, paragraph 1(d)". (37)

    1581 The final text, which was only adopted by Committee III at the fourth session, therefore removed espionage and the conduct of armed conflict at sea from the field of application of Article 37 ' (Prohibition of perfidy), ' paragraph 1(d).

    1582 As regards the law on naval warfare, this does not necessarily mean that the rules are totally satisfactory, as was already pointed out at the first session of the Conference of Government Experts. (38) It does not mean either that the concept of perfidy is not applicable to naval warfare, as was shown above. (39) However, it is true that when a warship during pursuit displays the enemy flag or a neutral flag, such conduct at sea is accepted, or at least tolerated, whether the ship in question is pursuing an enemy ship or is trying to escape from it, (40) though it is not accepted that fire should be opened in these conditions. Moreover, since the First World War, warfare has been extended at sea to the economic field and to the merchant navy of the belligerent countries. It even affected neutral ships or ships flying a neutral flag when it was considered that these could serve the interests of a country at war. This led to complex rules (41) which cannot be changed without a thorough study, and this is the import of the proviso formulated in this article.

    1583 With regard to the question of espionage, the intention was to prevent a spy who has made use of the enemy's uniform and has successfully escaped from being punished for this act if he were to be recaptured, while he would not be punished if he had escaped in civilian clothes. (42) However, the problem does not concern only the spy himself, (43) but also and importantly the authority who has given him orders. The Rapporteur makes this very clear in his report:

    [p.471] "As the text was adopted by the Committee at the second session, it was subject to the interpretation that it prohibited sending out a spy wearing the enemy's uniform. That was not the Committee's intention, but, if so interpreted, any officer who sent out such a spy, and any officer who knew of such action and failed to stop it, could be accused of violating Article 37 [39 ]. Since the sending of spies has never been considered an unlawful act, this would be a drastic change in the law which should be avoided. Certainly it would be nonsensical to make the sending of a spy wearing the enemy's uniform unlawful, while the sending of a spy dressed in civilian clothes remained lawful." (44)

    1584 The new text was finally adopted by consensus, but it did give rise to some objections. (45)

    Conclusion

    1585-- The prohibition on using the emblems of nationality of neutral or other States not Parties to the conflict is absolute "in an armed conflict". This means that they can be used as long as such use does not favour the interests of a Party to the conflict: e.g., use by diplomatic missions, Protecting Powers, medical services of neutral countries etc.

    1586-- The prohibition of the use of the emblems of the adverse Party during an attack includes the preparatory stage preceding the attack. It does not apply to prisoners of war when they are escaping.

    1587-- Article 31 of the Hague Regulations of 1907 is confirmed. A spy who successfully rejoins the army to which he belongs, if subsequently captured by the enemy, must be treated as a prisoner of war and incurs no responsibility for his previous acts of espionage, even if these acts were committed under cover of enemy uniform. The authority which sends him on his mission, including the order to wear enemy uniform, does not fall under Article 39, paragraph 2.

    ' J. de P. '


    NOTES

    (1) [(1) p.462] In particular, the Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in War on Land of 18 October 1907 (Hague Convention V);

    (2) [(2) p.462] On the concept of neutrality in general, see R. Bindschedler, "Neutrality, Concept and General Rules", op. cit., and, on the applicability of the rules of neutrality, D. Schindler, "State of War, Belligerency, Armed Conflict", in A. Cassese (ed.), ' The New Humanitarian Law of Armed Conflicts, ' op. cit., pp. 3-20. See also Ch. Swinarski, "La notion d'un organisme neutre et le droit international", in ' Studies and Essays in Honour of Jean Pictet, ' op. cit., p. 819;

    (3) [(3) p.463] This form of words was introduced by the amendment CDDH/45 (O.R. III, p. 167). For the discussion in Committee III, see O.R. XIV, pp. 273-274, CDDH/SR.29. See also commentary Art. 2, supra, p. 61, and E. Kussbach, "Protocol I and Neutral States", op. cit;

    (4) [(4) p.463] Report of the Rapporteur, O.R. XV, p. 270, CDDH/215/Rev.1, para. 38;

    (5) [(5) p.463] Supra, note I;

    (6) [(6) p.463] On this point, see commentary Art. 43, par. 3, infra, p. 518;

    (7) [(7) p.463] Report of the Rapporteur, ibid;

    (8) [(8) p.463] Vienna Convention on Diplomatic Relations of 18 April 1961, Article 20;

    (9) [(9) p.463] Vienna Convention on Consular Relations of 24 April 1963, Article 29;

    (10) [(10) p.464] First Convention, Art. 43, para. 2;

    (11) [(11) p.464] Second Convention, Art. 43, para. 2;

    (12) [(12) p.464] Supra, ad Art. 38, para. 1, first sentence, point 1, letters a) and b), p. 451;

    (13) [(13) p.464] For the general conditions of marking medical aircraft, see the First Convention, Art. 39, para. 2; see also the 1923 Hague Rules of aerial warfare, Art. 17, para. 2. Art. 29, para. 1, of the Protocol provides for the notification of the means of identification. According to the 1923 Hague Rules concerning air warfares, a neutral private aircraft which flies over the territory of a Party to the conflict without displaying its emblems of nationality, or displaying false marks, may be captured (Art. 53(e)). These Hague Rules were never adopted by States, but their persuasive authority has to some extent been recognized;

    (14) [(14) p.464] Art. 6 ter of the Paris Convention of 20 March 1883 on the Protection of Industrial Property, amended on this point in particular by the Paris Convention of 6 November 1925;

    (15) [(15) p.465] According to the Shorter Oxford Dictionary, a symbol is a thing regarded by general consent as naturally typifying or representing or recalling something;

    (16) [(16) p.465] Cf. the declaration of President Eisenhower of 6 June 1956 in which he maintained that neutrality is not an intermediary position between legal and illegal or between right and wrong, but simply a refusal to participate in military alliances (quoted by F. Berber, op. cit., p. 215);

    (17) [(17) p.465] During the First and Second World Wars armed persons who were captured while they were not wearing uniform, were often executed on the spot as francs-tireurs as they were not considered to be combatants but outlaws (cf. A.M. de Zayas, "Combatants", in Bernhardt (ed.), op cit., Instalment 3, 1982, p. 117);

    (18) [(18) p.466] Arts. 63 and 65;

    (19) [(19) p.466] See, on this point, D. Fleck, "Ruses of War...", op. cit., pp. 279-282;

    (20) [(20) p.466] 11 ' Law Reports, ' pp. 90-94;

    (21) [(21) p.466] ' CE 1972, Report ', vol. 11, p. 6;

    (22) [(22) p.466] Ibid p. 55 CE/COM III/C 23, and p. 56, CE/COM III/C 31; see also ' CE 1972, Report ', vol. I, p.131, para. 3.34;

    (23) [(23) p.466] ' CE 1972, Report ', vol. II, p. 51, CE/COM III/C 1;

    (24) [(24) p.466] O.R. III, p. 168, CDDH/III/240;

    (25) [(25) p.466] Ibid., p. 167, CDDH/III/239;

    (26) [(26) p.467] This man, who was in command of a brigade, was ordered to penetrate the enemy zone in the Ardennes on 16 December 1944, disguised in enemy uniform. His troops were to occupy three particular military objectives. His instructions specified that in the event that the deception was discovered, combat would only take place in national, i.e. German, uniform, after removing the enemy uniform. The mission failed. The military tribunal which had to try the case found the accused not guilty. This decision contributed to support that part of the legal literature which tended to consider, perhaps by analogy with a rule of maritime warfare, that though the use of the enemy flag or uniform was certainly prohibited in combat, this was not necessarily the case during the preparatory stage preceding combat or during the phase following it. However, as the tribunal did not have the authority to lay down the law on this point, but only to pronounce on the guilt or innocence of the parties concerned, the problem has still not been solved in a decisive way ("Trial of Otto Skorzeny and Others", 9 ' Law Reports, ' pp. 90-93);

    (27) [(27) p.467] O.R. XIV, p. 273, CDDH/III/SR.29, para. 16;

    (28) [(28) p.467] It would have been strange for the Conference to retain the possibility for a spy to wear enemy uniform (see infra, para. 3), but to withdraw this possibility for a prisoner of war when escaping, under the pretext that this would favour a military operation;

    (29) [(29) p.468] Report of the Rapporteur, O.R. XV, p. 388, CDDH/236/Rev.1, para. 35;

    (30) [(30) p.468] A. Mechelynck, op. cit., pp. 166-167;

    (31) [(31) p.468] Ibid., p. 166. Sometimes this has resulted in difficulties, particularly with regard to the clothing worn by pilots or parachutists. See A. Durand, ' History of the International Committee of the Red Cross, From Sarajevo to Hiroshima, ' Geneva, 1984, pp. 484-485;

    (32) [(32) p.469] The 1923 Hague Rules provide that all military aircraft must bear an external mark indicating its nationality and military character (Art. 3). These marks should be fixed in such a way that they cannot be altered during the flight. They should be as large as is practicable and be visible from above, from below and from each side (Art. 7). Article 43 of the Second Convention provides that hospital ships shall make themselves known by hoisting their national flag;

    (33) [(33) p.469] Report of the Rapporteur, O.R. XV, p. 271, CDDH/215/Rev.1, para. 39, and p. 371, CDDH/III/293;

    (34) [(34) p.469] This draft read as follows: "Nothing in this article shall affect the existing generally recognized rules of international law applicable to the use of flags in the conduct of armed conflict at sea". It has been adopted by consensus on 10 April 1975 (ibid., p. 300) during the second session;

    (35) [(35) p.469] O.R. XV, p. 271, CDDH/215/Rev.1, para. 40;

    (36) [(36) p.470] Ibid. p. 382, CDDH/236/Rev.1, para. 18;

    (37) [(37) p.470] CDDH/SEC/Inf. 1, vol. II, p. 252, and O.R. XV, p. 210, CDDH/III/SR.59, para. 5;

    (38) [(38) p.470] ' CE 1971, Report ', p. 103, para. 518;

    (39) [(39) p.470] Supra, ad Art. 37, p. 439 and p. 435;

    (40) [(40) p.470] F. Berber, op. cit., p. 167, and D. Fleck, "Ruses of War...", op. cit., pp. 292-294;

    (41) [(41) p.470] On a change of flag before or during the conflict, see, for example, F. Berber, op. cit., pp. 201-202;

    (42) [(42) p.470] However, it should be noted that the problem is exactly the same for a prisoner of war who escapes. If a prisoner is recaptured after a successful escape, he shall not be liable to any punishment in respect of his previous escape (Third Convention, Art. 91, para. 2). In the event of an unsuccessful escape, if there are no attendant charges for violence against persons, the wearing of civilian clothing shall give rise to disciplinary punishment only (ibid., Art. 93, para. 2). The possibility of wearing enemy uniform is not mentioned by the Third Convention because this eventuality was covered by the Hague Regulations which did not define such use as improper use;

    (43) [(43) p.470] On this point the Rapporteur states that: "The Committee recognized that it would be of questionable wisdom to make it even marginally safer for spies to disguise themselves as civilians than as military personnel" (O.R. XV, p. 271, CDDH/215/Rev.1, para. 40);

    (44) [(44) p.471] Ibid., p. 450, CDDH/III/407/Rev.1, para. 14. This exception obviously does not cover sabotage;

    (45) [(45) p.471] One delegate expressed himself as follows: "According to the criminal law of most States, a criminal act included the orders given to the criminal. That being so, the change made in Article 37 [39] by the mention of espionage and the idea expressed in Article 40 [46], paragraph 1, did not make sense. Consequently, although his delegation had joined in the consensus on the article, it had expressed reservations which it wished to reiterate in the plenary meeting" (O.R. VI, p. 103, CDDH/SR.39, para. 65). Another delegation also opposed the modification relating to espionage and maintained its reservations (ibid., para. 66);