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Commentary - Art. 39. Chapter VII : The distinctive emblem
    ARTICLE 39 -- USE OF THE EMBLEM


    This Article reproduces Article 20 of 1929 , with slight changes of wording.

    1. ' The protective sign '

    A fundamental distinction must now be made, to which we shall return at greater length when dealing with Article 44 . It concerns the two distinct uses to which the red cross on a white ground (1) may be put. In the first case -- which is the one -- and the only one -- to which Article 39 relates -- the sign is a virtually constitutive element of protection [p.307] under the Convention. For brevity's sake we shall refer to it as the protective sign. It has this connotation when displayed on buildings, persons and objects entitled to respect under the Convention.
    In the second case -- which follows from Article 44, paragraph 2 -- the sign is purely indicatory, i.e. it is only used to designate persons or objects connected with the Red Cross; this does not, and is not intended to, imply the protection of the Convention.
    The emblem has its essential significance when used as a protective sign. It is then known as the "emblem of the Convention". Its use becomes of practical importance in time of war, particularly in the zone of military operations.
    In principle, a red cross on a white ground should be displayed on the buildings, persons (2) and objects protected by the Convention. If enemy troops at a distance are really to be able to accord these persons, objects or buildings -- especially the latter -- the respect required by the Convention, they must be in a position to recognize them for what they are.
    We use the qualification "in principle" for two reasons. In the first place there is no obligation on a belligerent to mark his units with the emblem. Sometimes, in front-line positions, a commander will camouflage his medical units in order to conceal the presence or real strength of his forces. But as the enemy can respect a medical unit only if he knows of its presence, respect for the camouflaged unit will be purely theoretical. The unit will be exposed to long-range enemy fire and will thus lose a large part of its security. But in case of occupation, for instance, the enemy, recognizing the medical unit for what it is, must obviously respect it. It is for this reason that we stated above that the emblem was a ' virtually ' constitutive element of protection under the Convention.
    The second reason is that it will not always be physically possible to mark an object with the emblem. Small surgical instruments are a case in point. But such articles will form an integral part of a larger unit, which will be marked.
    The distinctive sign under the Geneva Convention is not a red cross alone: it is a red cross on a white ground. The red cross should therefore be displayed on a white ground; this will not only obviate disputes but, by the contrasting colours, give better visibility. Should there be [p.308] some good reason, however, why an object protected by the Convention can only be marked with a red cross without a white ground, belligerents may not make the fact that it is so marked a pretext for refusing to respect it.

    2. ' Control by the military authority '

    The initial phrase of Article 39 is most important: use of the emblem is to be "under the direction of the competent military authority". This replaces the 1929 wording which read: "With the permission of the competent military authority".
    The new wording is to be preferred; it shows, quite as clearly as the old, that it is the military commander who controls the emblem and can give or withhold permission to use it; moreover, he alone, as we shall see, can order a medical unit to be camouflaged.
    The new wording also shows that the military authority is at all times responsible for the use made of the emblem, must keep a constant check on it, and see that it is not improperly used by the troops or by individuals. Again, the earlier expression could give rise to the false idea that special permission was necessary each time the sign was used, whereas, in actual practice, a general order is usually given once for all. So far as the Medical Service of the armed forces is concerned, the authorization must be largely presumed.
    Who is the "competent military authority"? In 1929, a definition was deliberately avoided, so as to allow of flexibility. The question is a private one for the armed forces of each country. If an officer exceeds his competence, he is responsible to his superiors alone. The wounded cannot be allowed to suffer thereby; and an enemy could scarcely plead lack of competence, to justify his denying protection to a medical unit which fulfilled the requirements of the Convention.
    What is essential is that all armed forces should exercise official control over every use of the emblem.


    * (1) [(4) p.306] This expression will henceforth be understood
    to cover also the red crescent and the red lion and sun,
    in respect of the countries which use these emblems;

    (2) [(1) p.307] "Persons" clearly means medical and religious
    personnel, and not the wounded and sick themselves;