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Commentary - Prevention and repression of misuse
Article 6 - Prevention and repression of misuse

1. Paragraph 1

Article 6, paragraph 1, reflects the desire to ensure that the regime covering the red crystal is identical to that governing the existing emblems, for this provision transposes to the third Protocol emblem the same rules on the prevention and repression of misuse found in the 1949 Geneva Conventions and their Additional Protocols of 1977. In particular, High Contracting Parties must adopt adequate national laws to prevent improper use of the distinctive emblems and of their denomination and to deter and punish perpetrators.[56] The relevant provisions are Articles 49, 53 and 54 of the First Geneva Convention, Article 50 of the Second Geneva Convention and Articles 18 and 85 of Additional Protocol I.
It should be borne in mind that any use not expressly authorized by international humanitarian law is considered a misuse of the emblem. The text of Article 6, paragraph 1, explicitly mentions two particular kinds of misuse to be prevented or repressed. The first is perfidy, where, for the purpose of killing, injuring or capturing, an appeal is made to the good faith of the adversary with the intention of deceiving him/her through the use of a distinctive emblem in order to feign protected status.[57] The second is imitation, or using a sign that because of its form and/or colour is likely to be mistaken for a distinctive emblem. The term “including” indicates, however, that these are merely examples. Thus, usurpation is also considered to be misuse of the emblem. Usurpation is defined as the use of a distinctive emblem by entities or persons not entitled to do so (commercial enterprises, pharmacists, private doctors, non-governmental organizations, ordinary individuals, etc.) or, in the case of persons normally authorized to use the emblem, of their doing so without respecting the rules of the Conventions and their Protocols or the Fundamental Principles of the Movement.

2. Paragraph 2

Article 6, paragraph 2, settles the delicate issue of the temporal scope of the prohibition on misuse of the third Protocol emblem. For a better understanding of the solution established by Additional Protocol III, it is useful to review the relevant provisions of the First Geneva Convention.
The First Geneva Convention establishes separate sets of rules for the red cross on one hand and for the two other distinctive emblems (formulated in terms of exceptions) on the other. With regard to the red cross, Article 53, paragraph 1, of the Convention prohibits misuse of the emblem in absolute terms, stressing that any use by individuals (other than those entitled thereto under the Convention) of the emblem or its designation, "whatever the object of such use, and irrespective of the date of its adoption”, shall be prohibited at all times. The Commentary points out that "[t]rade-marks and commercial marks incorporating the red cross must disappear, even if they have been in use for a century or more. Commercial interests, however legitimate, must give way to the higher interests of humanity, whatever the cost may be.[58]Nevertheless, the Convention authorized States – at least those that were not party to the Geneva Convention of 1929 – to grant prior users of the distinctive emblem a grace period of three years to discontinue its use. This saving clause, however, only covered emblems that were purely indicative in nature and not those that could appear to confer, in time of armed conflict, protection under international humanitarian law.
On the other hand, the fourth subparagraph of Article 53 provides a more flexible legal protection for the red crescent and the red lion and sun. The ban on use of these emblems only applies to persons who claim the right to use them after the entry into force of the Convention and not to prior users, who are considered to be enjoying a vested right. The Commentary explains that this difference of treatment exists because it would have been impossible to eliminate throughout the entire world signs that are used as symbols of neutrality in only few countries.
A previous draft of Additional Protocol III applied the First Convention's rules for the red cross to the new emblem, granting a grace period of three years to any prior users of the emblem or of its name followed by a complete obligation to abandon it. This approach was ruled out, however, after some States invoked its potential incompatibility with national, regional or international intellectual property regimes. The solution ultimately adopted in Article 6, paragraph 2, of Additional Protocol III is similar to that of Article 53, paragraph 4, of the First Convention of 1949 dealing with the red crescent and the red lion and sun.
Lastly, it should be noted that the second paragraph of Article 6 refers only to protection of the vested rights of the prior users of the third Protocol emblem, without mentioning (unlike paragraph 1) the users of its name. Too literal an interpretation of this paragraph, should, however, be avoided; there is no logical reason justifying the establishment of different legal regimes for the prior use of the emblem and that of its designation, which is equally protected.


Notes

56. In order to facilitate and support the task of States in elaborating national legislation, the ICRC's Advisory Service has developed a model law on the use and protection of the emblems of the red cross, red crescent and red crystal. This model law is available on the ICRC website at: http://www.icrc.org/eng/resources/documents/misc/57jn8k.htm.
See also the Advisory Service’s National Implementation Database for information on various legislative and other national measures relating to use and protection of the emblem at: http://www.icrc.org/ihl-nat.

57. Under certain conditions, the perfidious use of the emblem may even constitute a war crime. See in this respect Article 85(3)(f) of Additional Protocol I whereby the perfidious use of the red cross, red crescent and red lion and sun, in violation of Article 37, qualifies as a grave breach when the act is committed wilfully and results in death or serious injury to body or health. See also Article 8(2)(b)(vii) of the Rome Statute of the International Criminal Court.

58. " Commentary on the First Geneva Convention, Article 53, above note 4, p. 387.