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Commentary - Art. 38. Chapter VII : The distinctive emblem
    [p.297] ARTICLE 38 -- EMBLEM OF THE CONVENTION


    1. ' Origin of the red cross emblem ' (1)

    Long before the Red Cross was founded, hospitals and ambulances were sometimes marked on the battlefield by a flag of a single colour, which varied according to the occasion and the country. From the beginning, those responsible for the Red Cross and the Geneva Convention recognized the need for a uniform international emblem as the visible sign of the immunity to which medical personnel and the wounded should be entitled.
    The sign of the red cross on a white ground came into being at the historic International Conference which sat in Geneva from October 26 to 29, 1863, and laid the foundations of the Red Cross movement. It was only a question, on that occasion, of choosing a badge for voluntary medical orderlies. Dr. Appia proposed a white armlet; the Conference -- probably at the suggestion of General Dufour -- decided to add a red cross.
    [p.298] The Diplomatic Conference which drew up the first Geneva Convention the following year, officially adopted the red cross on a white ground, this time as a single distinctive emblem for all army medical personnel, and for military hospitals and ambulances.
    It is not certain that there was, either in 1863 or in 1864, any conscious intention of reversing the colours of the Swiss flag. No contemporary writings suggest such a comparison, and it is possible that the analogy was not remarked until later. The first written allusion to it was by Gustave Moynier in 1870.
    The 1906 Conference, which revised the Convention, added a clause stating that the emblem was adopted as a compliment to Switzerland, and was formed by reversing the Federal colours.
    The term "Red Cross", to denote the work of voluntary relief to wounded members of the armed forces, was first adopted by the Netherlands Society in 1867, and had some difficulty in finding general acceptance. By 1885, however, it was widely used.
    The red cross emblem is sometimes called the "Geneva Cross", not because of any supposed connection with the Genevese armorial bearings -- which are entirely different -- but because it originated in Geneva. (2)

    2. ' Authorized exceptions '

    It was rightly regarded as essential to have a single emblem only, but although this unity was universally established -- at least legally -- by the 1864 Convention, it was not to endure for long.
    Turkey, who in 1865 had adhered unreservedly to the Geneva Convention, notified the Swiss Federal Council in 1876, during her war first with Serbia and later with Russia, that her Medical Service would display a red crescent and not a red cross, because this latter sign was offensive to Moslem soldiers. They had apparently not forgotten the Crusades. Russia, who came into the war in 1877, at first contested Turkey's right to modify a treaty clause unilaterally, but later agreed to the red crescent being used, against a promise that the Turks would continue to respect the red cross of their opponents.
    At the Hague Peace Conference of 1899, which drew up the Convention [p.299] for the adaptation to maritime warfare of the principles of the Geneva Convention of 1864, the Turkish Delegate declared that the red cross would be replaced by the red crescent on the flags of Turkish hospital ships. The Siamese and Persian Delegates asked for recognition of their countries' right to use respectively the red flame and the red sun. The United States Delegate then proposed that the red cross should be replaced by an emblem acceptable to all. The Hague Conference was not competent to revise the Geneva Convention, and merely noted the reservations and recommendations made. The International Committee of the Red Cross has never ceased to regret that the principle of having a single universal emblem was not maintained.
    The Conference which revised the Geneva Convention in 1906 confirmed the adoption of the red cross sign; it did not authorize any exceptions and, as we shall see later, emphasized by a unanimous vote that the emblem had no religious significance. Turkey, however, who had not been represented at this Conference, adhered to the Convention the following year only on condition that she could use the red crescent. At the time of the revision of the Maritime Warfare Convention at the Hague in 1907, the Conference, as in 1899, merely noted the reservations made by Turkey and Persia.
    On the proposal of Turkey, Persia and Egypt, the in 1929 Conference which undertook the second revision of the Geneva Convention, unanimously recognized the red crescent and the red lion and sun for countries which already used these emblems, i.e. for the three countries concerned. It was hoped that this would prevent any further exceptions. Several Moslem States, however, adopted the red crescent after 1929 and the International Committee of the Red Cross did not feel that it should refuse recognition to their Societies. (3) It had even, in 1924, recognized the persian Red Lion and Sun Society -- a decision that was apparently premature. (4)
    The Committee has at least been successful in its formal opposition to the introduction of several other emblems suggested.

    [p.300] 3. ' Return to a single emblem '

    A very strong tendency to return to a single emblem was apparent at the Expert Conferences which considered the revision of the 1929 Convention. The Commission which drew up the first draft in 1937 was unanimous on this point. It emphasized the fact that the red cross was an international sign, devoid of any religious significance, and that it was illogical to try to replace it by national or religious emblems; such a course would involve the risk of confusion with national flags which are, in time of war, symbols of belligerency. The Preliminary Red Cross Conference in 1946 was of the same opinion. Some delegations recommended that steps should be taken in Middle Eastern Countries (5) to explain the real significance of the red cross emblem. One delegate pointed out that the arithmetical plus sign -- which is a cross -- was not objected to anywhere on these grounds. The representative of one of the countries using the red crescent maintained, however, that it was still impossible to introduce the red cross sign in Moslem countries, but did not deny
    that it might one day be possible to do so. The Conference did not propose that the text of the Convention should be amended.
    The subject was again discussed at the Conference of Government Experts in 1947 and, the following year, at the XVIIth International Red Cross Conference. The latter, while it did not recommend any change in the wording of the Convention, expressed the wish "that the Governments and National Societies concerned should endeavour to return as soon as possible to the unity of the Red Cross emblem".
    This was the situation which faced the International Committee of the Red Cross on the eve of the 1949 Diplomatic Conference. The Society of the Red Shield of David, operating as a relief society in Israel, had, moreover, asked to be recognized as a member of the International Red Cross, whilst retaining the right to use as emblem the "shield of David", in red on a white ground. (6) In its "Remarks and Proposals" to Governments participating in the Geneva Conference, the International Committee suggested various possible solutions to this difficult problem. [p.301] One was that exceptions should be tolerated only for a limited period, during which the countries concerned could take steps to educate public opinion and gradually replace their own emblems by the red cross. Another suggestion was that the red cross emblem should be used by all countries, but that certain of them should be authorized to add their own symbol (in miniature) in one corner of the flag. The International Committee also considered the possibility of only recognizing a single
    exception -- an entirely new and strictly neutral emblem for use by countries which found it absolutely impossible to accept the red cross. Finally, it was pointed out that if Iran, the only country to employ the red lion and sun, would agree to give it up, the only special emblem remaining in use would be the red crescent.

    4. ' Discussions at the 1949 Conference '

    Apart from a very slight change in wording, Article 38 follows the corresponding 1929 text. It was nevertheless the subject of important and protracted debates during the Conference. Three main tendencies became apparent:

    (a) To revert to the use of the red cross as the only distinctive emblem. The Conference, while hoping that the time would come when all the countries of the world would decide to adopt the red cross on a white ground as the only distinctive emblem, was nevertheless compelled to recognize that it was impossible, for the moment, to revert to the use of a single emblem. (7)

    (b) To increase the number of exceptions. The Conference first considered the Israeli Delegation's proposal that the red "shield of David" should be recognized. It was later suggested that each country should be allowed to choose for itself any red symbol on a white ground. These suggestions were rejected by the Conference, which was fully aware of the danger they represented -- the danger of substituting national or religious symbols for the emblem of charity, which must necessarily be neutral, and the danger of opening the way to a multiplicity of emblems which would undermine the universality of the red cross and diminish its protective value. (8) It should be remembered that the International [p.302] Committee of the Red Cross had already received a great many requests for the recognition of new emblems, such as the flame, shrine, bow, palm, wheel, trident, cedar, and mosque. The amendment proposed by the Israeli Delegation was rejected in the final vote in plenary session by a majority of only one (22 votes to 21, with 7 abstentions). (9)

    (c) To abolish not only the alternative emblems, but the red cross itself and to substitute a new geometrical sign which would have to be decided upon. One delegate suggested a red heart, as being the symbol of charity; it would have taken the conventional form of an inverted equilateral triangle. This revolutionary proposal did not stand examination. It was felt at once that to abandon a long and universally known and respected emblem, of such high significance as the red cross, would be to endanger human lives.
    Present arrangements were therefore maintained: the red cross remains the accepted sign, and the two former exceptions (the red crescent and the red lion and sun) may still be used -- not only by the countries which were using them in 1929, but also by those which adopted them between 1929 and 1949. The Convention is opposed to their adoption by any further countries after 1949 (10)

    5. ' Nature of the red cross emblem '

    A. ' Neutrality. ' -- The sign of the red cross on a white ground, sanctioned by the Geneva Convention from 1864 down to our times, is above all, as Article 38 says, "the emblem and distinctive sign of the Medical Service of armed forces". It is also, as we shall see in connection with Article 14, the emblem of the Red Cross movement.
    [p.303] The sign was meant to be international and neutral, a symbol of disinterested aid to the wounded soldier, be he friend or foe. It was not the Swiss armorial bearings which were adopted, even though it was intended to pay a tribute to the country where the Red Cross came into existence. The reversal of the Swiss colours created a new emblem, bereft of any national association.
    Similarly, the emblem chosen was intended to be without any religious significance, since it had to be employed by persons of all beliefs. This was always considered self-evident in official circles, and there is no real need to enlarge on the subject. Nevertheless, certain delegations at the 1949 Conference thought they could cast some doubt on the matter in order to justify the rejection of the red cross and its replacement by special emblems which have in fact a religious or national significance. It is therefore best to make the position absolutely clear.
    The Conferences of 1863 and 1864 which adopted the red cross sign, stressed the universal and neutral character of the emblem. M. Max Huber, President of the International Committee of the Red Cross for nearly twenty years, wrote:
    "It was neither Dunant's desire nor that of his collaborators, nor that of the countries participating in the Geneva Convention, that the work and emblem of the Red Cross should bear a religious stamp or be in any way attached to a given set of philosophical ideas. On the contrary, the movement was not only to serve, but also to gather to itself, all sorts and conditions of men." (11)
    The phrase stating that the red cross emblem was formed, as a compliment to Switzerland, by reversing the Federal colours was introduced into the Geneva Convention by the Diplomatic Conference of 1906. "This tribute in 1906", wrote Paul Des Gouttes, the eminent commentator on the Geneva Convention, "had also another object: to confirm officially and explicitly that the emblem had no religious significance". (12)
    Louis Renault, a leading figure at the Geneva and Hague Conferences, wrote in his General Report to the 1906 Conference:
    [p.304] "As we know, it was in no sense as a religious symbol that the cross was adopted by our predecessors; they thought of Switzerland, whose guests they were and which had taken the initiative in regard to their meeting... The foregoing explanation should satisfy all requirements, proving as it does that the emblem adopted cannot offend any religious convictions. The Conference has expressly noted that the emblem has no religious significance, and the formula proposed is intended to underline the purely historical origin of the red cross and the character of the emblem... The absence of religious significance is shown clearly enough, even if implicitly, by the expressions used." (13)
    We emphasize again that the Diplomatic Conference of 1906 -- as Louis Renault pointed out -- unanimously agreed that the red cross sign had no religious significance. The following passage is quoted from the official minutes:

    "Sir Ardagh proposed that the meeting should decide definitely whether or not the present system had a religious character. The President called upon the meeting; as no delegate spoke, the President noted that no one attached religious significance to this sign. (14)"

    The Plenipotentiaries at the Diplomatic Conference of 1929 expressed similar views; the Egyptian Delegate was even heard to say: "It is not for religious reasons that we have the red crescent or the red lion and sun". (15)
    At the 1949 Conference the Head of the Delegation of the Holy See himself recalled that "the red cross had been selected as a tribute to Switzerland and it had always been made clear, particularly in 1906, that the red cross symbol in question was devoid of all religious significance." (16)
    In the face of such testimony, need we insist further?
    The emblem of the Geneva Convention is also that of the Red Cross.
    What is true for one is true for the other. Neutrality in religious matters is [p.305] a fundamental, statutory principle of the Red Cross. It is difficult to see how its flag could be different in this respect.
    The red cross emblem is intended to signify one thing only -- something which is, however, of immense importance: respect for the individual who suffers and is defenceless, who must be aided, whether friend or enemy, without distinction of nationality, race, religion, class or opinion.
    People may associate this cross with the Christian cross in their own minds; but such an interpretation cannot have any official or international standing. "The Red Cross" wrote M. Max Huber, "is neutral in religion, and must always remain so. Whether the charitable motives that prompt its collaborators' participation are of religious or other inspiration, is their exclusively personal affair, shut in the silence of each conscience and, for the sake of the cause, never outwardly stressed". (17)

    B. ' Form of the cross. ' -- The statement in the Geneva Convention that the emblem of the red cross on a white ground is "formed by reversing the Federal colours" has sometimes been thought to mean that the red cross must necessarily have the same form as the Swiss cross -- which has been fixed. (18) This is obviously not so. The word "colours" should be taken literally to refer simply to the colours red and white. If it had been intended to speak of the Federal flag, the word "reversing" would not have been used. The Proceedings of the Diplomatic Conference of 1906 are, moreover, explicit: the Conference deliberately refrained from defining the form of the cross, since definition might have led to dangerous abuses. The reasons are clear. If the form of the cross had been rigidly defined, attempts might have been made to justify attacks on installations protected by the Convention, on the pretext that the emblems displayed were not of the prescribed dimensions. Similarly, unscrupulous persons could have taken advantage of a rigid definition to
    use a slightly larger or slightly smaller red cross for commercial purposes.
    For the same reasons, the Convention does not specify the shape of the white ground or the exact shade of red in the cross, as Switzerland has done for its flag. Some National Red Cross Societies have defined [p.306] the form of cross which they themselves will use. (19) This they are perfectly entitled to do. The majority appear to have chosen a cross made up of five equal squares -- the shape which is most easily mass-produced.

    C. ' Official standing. ' -- Article 38 speaks of "the ' heraldic ' emblem of the red cross on a white ground". The world "heraldic" was not selected at random in 1906, but chosen, after due consideration, in preference to any other. (20) The intention, in using it, was to give the red cross emblem the same standing as official arms.
    It should be noted that quite apart from the stipulations in Article 53 of the Geneva Convention , (21) the misuse of official arms is prohibited by the Union Convention of Paris, March 20, 1883, for the protection of industrial property (revised in 1925 and again under revision at the present time).


    * (1) [(1) p.297] In the following pages, "red cross" is printed
    in lower case when it refers to the heraldic emblem,
    capitals being reserved for the "Red Cross" as an
    institution. If generally adopted, this system might avoid
    confusion;

    (2) [(1) p.298] For further details regarding the origin of
    the red cross emblem, see Jean S. Pictet, ' The Sign of
    the Red Cross ' in the ' Revue internationale de la
    Croix-Rouge, ' English supplement, April 1949, page 143;

    (3) [(1) p.299] It may be noted that Lebanon and Pakistan have
    adopted the red cross emblem. The Lebanese Red Cross was
    recognized by the International Committee in 1947, and the
    Pakistan Red Cross in 1948;

    (4) [(2) p.299] It was not until 1929 that the Geneva
    Convention recognized this emblem. Moreover, as Persia is
    not party 10 the 1929 Convention, the provision in regard
    to this emblem has not formally taken effect;

    (5) [(1) p.300] All Eastern and Far Eastern countries adopted
    the red cross without hesitation;

    (6) [(2) p.300] The "shield of David" is the Jewish,
    six-pointed star, formed by two intersecting triangles;

    (7) [(1) p.301] See Final Record of the Diplomatic Conference
    of Geneva, 1949, Vol. II-A, page 197;

    (8) [(2) p.301] See statement by M. Paul Ruegger, President of
    the International Committee of the Red Cross, to the
    Plenary Assembly of the Conference. Final Record of the
    Diplomatic Conference of Geneva, 1949, Vol. II-B, page
    223;

    (9) [(1) p.302] When signing the Convention, the Israeli
    Delegation made a reservation with regard to the use of
    the red shield in Israel. Certain delegations asserted
    that this reservation was invalid. We do not wish to raise
    here the difficult problem of the value of reservations,
    which is now being studied internationally. It may,
    however. be pointed out that according to several writers,
    the only effect of reservations is to limit the
    obligations accepted under a Convention; they cannot
    create, for the other Contracting Parties, obligations
    which exceed the stipulations of the said Convention;

    (10) [(2) p.302] The States party to he Geneva Convention which
    have recognized Red Crescent Societies, and had adopted
    the red crescent before 1949, are Egypt, Iraq, Jordan,
    Syria, and Turkey. Several Republics of the Soviet Union
    (Azerbaidzhan, Tazhikistan, Turkmenistan and Uzbekistan)
    have also adopted the red crescent. In Afghanistan. a Red
    Crescent Society has been in process of formation for
    several years.
    The red lion and sun is used only in Iran;

    (11) [(1) p.303] Max HUBER. ' The Red Cross) Principles and
    Problems, ' Geneva 1946, page 62. The same idea is
    expressed on page 25 of the above work and in ' The Good
    Samaritan, ' London, Gollanz, 1945, page 31;

    (12) [(2) p.303] Paul DES GOUTTES. ' Commentaire de la
    Convention de Genève du 27 juillet 1929, ' Geneva, 1930,
    page 143;

    (13) [(1) p.304] See ' Actes de la Conférence de Revision
    réunie à Genève en 1906, ' Geneva 1906, page 260;

    (14) [(2) p.304] See ' Actes de la Conférence de Revision
    réunie à Genève en 1906, ' Geneva, 1906, page 162;

    (15) [(3) p.304] See ' Actes de la Conférence diplomatique de
    Genève de 1929, ' Geneva, 1930, page 248;

    (16) [(4) p.304] See ' Final Record of the Diplomatic
    Conference of Geneva, 1949, ' Vol.II-A, page 150;

    (17) [(1) p.305] See The ' Good Samaritan, ' London, Gollanz,
    1945, page 29;

    (18) [(2) p.305] In 1889, the Swiss Federal Assembly defined
    the arms of the Confederation as "a white cross, upright
    and humetty, placed on a red ground, having arms equal to
    each other and of a length exceeding their breadth by
    one-sixth;". In heraldic parlance, "humetty" is used of a
    cross whose arms do not extend to the edges of the shield;

    (19) [(1) p.306] The Turkish Red Crescent has defined its
    emblem by statute: it consists of a red crescent on a
    white ground, the points being turned towards the left. On
    the flag, however, the points of the crescent are turned
    in the direction away from the flagpole. The flag and
    crescent have the same dimensions and proportions as the
    Turkish national flag, as fixed by law;

    (20) [(2) p.306] Proceedings of the 1906 Conference, Committee
    1V, Fifth meeting;

    (21) [(3) p.306] See below, page 380;