ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 53. Chapter IX : Repression of abuses and infractions
    [p.380] ARTICLE 53 -- MISUSE OF THE EMBLEM

    GENERAL

    A. ' Two kinds of misuse '. -- As we saw in connection with Article 44 (1), the sign of the red cross on a white ground can be employed in two entirely different senses. When it appears on Persons or property which the Convention lays down should be respected, the sign has protective value; when it merely indicates that a person or thing is connected [p.381] in some way with the Red Cross, but not in the sense of being entitled to the protection of the Convention, the sign is indicatory only.
    A distinction must therefore be drawn between abuse of the protective sign and abuse of the indicatory sign. The first, in time of war, is infinitely the more serious, because it may endanger human lives. The gravity of the offence will vary with circumstances -- from the thoughtless action of a doctor who wears a red cross armlet in good faith although not a member of the medical personnel, to acts of treachery such as the placing of large-sized emblems on an ammunition dump in order to mislead the enemy. Between these extremes, one can conceive of abuses of every possible degree of gravity.
    Typical examples of misuse of the indicatory sign are the unauthorized use of the badge of a Red Cross Society, or the use of the emblem by chemists, or in trade-marks.

    B. ' Historical background '. -- Abuses of the red cross emblem are almost as old as the Geneva Convention itself.
    The 1864 Convention has no provision dealing with the repression of infractions, and is silent too on the subject of abuses of the distinctive sign.
    Abuses occurred during the war of 1866, and still more so in 1870-71, but they affected the protective sign only. By 1880, however, the indicatory sign was being unlawfully used in many ways. Chemists, manufacturers of medical apparatus, invalid nurses, and even barbers had adopted the red cross as their sign, and it was being used on boxes of pills and mineral water advertisements.
    The International Committee and the National Red Cross Societies undertook an unremitting campaign against such abuses, a campaign which still continues today. (2) The IIIrd International Red Cross Conference (1884) recommended that "energetic legislative or similar measures be taken, in all countries, to prevent abuse of the emblem of the Convention, the red cross on a white ground, in time of peace as in time of war". A similar Resolution was adopted by the IVth Conference (1887), and in 1858 the International Committee held a competition for the best [p.382] methods of preventing and suppressing abuses, the two winning essays being published. (3)
    In spite of these efforts, the unlawful uses to which the sign was put, continued to multiply. Some traders were already using a slightly modified form of red cross, pretending hypocritically that they were not using the emblem of the Convention. Although States had accorded strict protection in their penal codes to such things as trade names and trade-marks, a highly significant symbol, which they had formally recognized when signing the Geneva Convention, was left defenceless. Some countries, it is true, enacted certain provisions for the legal protection of the emblem; but they were inadequate.
    It was then suggested that the Convention itself should contain clauses prohibiting misuse of the sign and requiring States to enact appropriate legislation. This was done at the 1906 Conference, which profoundly modified the Geneva Convention. In the fairly detailed Article 27 , Governments undertook to adopt or to propose to their legislatures the measures necessary to prevent, at all times, misuse of the Red Cross name and emblem. Article 28 (4) laid down, further, that abuse of the sign in wartime was to be punished "as an unlawful use of military insignia". The Convention thus forbade misuse of both protective and indicatory signs, although at the time no conscious distinction had yet been drawn between the two uses of the emblem.
    Misuse of the protective sign in wartime had, incidentally, long been recognized as a punishable offence under international law. Article 23 of the Regulations annexed to the Second Hague Convention of 1899 forbade "improper use of ..... the distinctive badges of the Geneva Convention", and this clause was reintroduced in full in the same Article of the Regulations as revised in 1907 and still in force.
    During the 1929 revision, attention was mainly centred on a problem which had arisen as a result of the adoption of the 1906 Convention -- namely, protection of the emblem of the Swiss Confederation. In order to get over the 1906 prohibition, unscrupulous traders had made use of a white cross on a red ground, counting on the similarity between [p.383] it and the red cross sign and the possibility of one being confused with the other.
    Article 27 was retained, but this time imitations of the red cross emblem were also forbidden, which had not been the case in 1906. On the other hand, although the obligation to repress all infringements of the Convention was clearly laid down, the clause in Article 28 which dealt with the particular case of misuse of the protective sign was unfortunately dropped; thus disappeared, at least from the Geneva Convention, the distinction between these two forms of abuse, which are so utterly different in character. The wording used allowed measures to be taken against both, but created the impression that it only covered the so-called commercial abuses, which were the only ones expressly mentioned. In consequence, where national legislation has been introduced in fulfilment of obligations under the 1929 Convention, it generally covers commercial abuses only (5).

    C. ' Absolute character of the new Article '. -- Article 53 of the 1949 Convention marks a real step forward. In the first place, it makes an absolute prohibition of what depended, in the corresponding Article of the 1929 Convention (Article 28 ), on measures which Governments were to "adopt or propose to their legislatures" -- a qualification which weakened the effect of the provision very appreciably.
    The new Article has the same standing as the various other prohibitions in the Convention (in regard to the wounded, medical units, and so on). Its proper place is therefore in Chapter VII (The Distinctive Emblem), and not in Chapter IX (Repression of Abuses and Infractions) where it actually is. It should come immediately after Article 44 , or even form part of it. A delegation drew attention to this point, but, for reasons of procedure, the Conference let the matter rest (6).

    [p.384] PARAGRAPH 1 -- MISUSE OF THE RED CROSS EMBLEM

    1. ' Object of the prohibition '

    A. ' Protective sign '. -- The first paragraph, like Article 28 of the 1929 Convention, is primarily intended to prohibit misuse of the indicatory sign (e.g. its use for commercial purposes); it is, however, aimed too at abuse of the protective sign in wartime, which is also covered by Article 49 (7). The prohibition applies to "any sign"... at all times... whatever the object of such use".
    But, as in 1929, no distinction is drawn between the two types of abuse. The very wording of Article 53 may cause confusion; it sets out in detail the so-called commercial abuses, and it might be inferred that these only are covered.
    It is essential that States should not merely rely on the general provisions of their municipal legislation, but decree specific and severe penalties for abuse of the protective sign. The penalties should in this case be very much more severe than for illegal use of the red cross in trade names or trade-marks. The fact that buildings in a war zone display the red cross sign when they are not entitled to do so, may compromise the security of hospitals which display it legally, and undermine the respect due to the Convention. As we have already pointed out, human lives are at stake. The International Committee of the Red Cross suggested this improvement in the text to the 1949 Conference, but the matter was unfortunately overlooked (8).
    In any case, even though the 1949 text might have been more precise, it is still adequate. Governments are responsible for making its provisions fully operative by adopting such legislative measures as are necessary to ensure the prevention and punishment of both forms of abuse.

    B. ' Indicatory sign '. -- Although the first care must be to safeguard the protective sign, misuse of the purely indicatory sign must also be relentlessly put down, as it does serious harm to the Red Cross movement [p.385] and diminishes the prestige of the emblem. The public, seeing the red cross on articles that have nothing to do with any form of charitable work (9), may fail, in other circumstances of the most vital importance, to recognize its inviolable character.

    C. ' Protection of the title '. -- It was obviously not enough merely to prohibit misuse of the red cross emblem. Protection had also to be extended to the words which form the official title of the great humanitarian institution known as the Red Cross. These words are as familiar to the public as the emblem, and must enjoy the same prestige. Since 1906, the title "Red Cross" and its synonym "Geneva Cross" have been protected in the same way as the emblem.

    D. ' Imitations of the emblem '. -- A happy innovation in 1929 was to forbid unauthorized use not only of the originals, but of every sign or name which constituted an imitation of the emblem and title. This important clause was naturally maintained in 1949.
    Commercial undertakings, debarred after 1906 from making use of the emblem without risk of prosecution, devised, with an ingenuity worthy of a better cause, signs which could not be said to be the red cross, but gave the impression that they were. This enabled them to claim for their products with impunity some at least of the prestige attaching to the emblem. As examples we may mention a red cross with a figure or another cross superimposed; a cross which had only the outline or part of it in red; backgrounds of different colours; a cross half red and half white on a ground in which the two colours were reversed; a red star which from a distance looked like a cross. Such practices, harmful to the emblem and to the organization, had to be eliminated.
    It is the duty of the authorities in each country to decide if a given mark constitutes an imitation (10). The decision may sometimes be a difficult one. The criterion should be whether there is a risk of confusion in the public mind between the mark and the red cross emblem, as it is precisely this that the clause is intended to prevent.
    [p.386] In order to assess the responsibility of the user, an attempt may be made to determine whether he had any actual intention of deceiving the public or exploiting the prestige of the emblem. In such cases the text should be interpreted in the manner most favourable to the Convention and the Red Cross. If the user means no harm, why should he choose a mark resembling the red cross? There can be no valid objection to substituting an entirely different symbol.

    2. ' Effect of the prohibition '

    A. ' On organizations and individuals '. -- Use of the emblem is forbidden to everyone not expressly authorized by the Convention. Article 44 gives a limitative list of those entitled to use it. Amongst organizations, only Red Cross organizations and Societies and other recognized relief societies are mentioned. Private individuals may not use it. The sole exception -- and this is accorded only with the express permission of the National Red Cross -- is to identify an aid post or motor ambulance (Article 44, paragraph 4 ). Governments themselves may only employ the sign to identify the staff and material of their Medical Services (11).

    B. ' As regards employment '. -- Use of the emblem (always apart from permitted cases) is forbidden "whatever the object of such use". We saw above that the prohibition applies to both the protective and the indicatory sign. It also means that the emblem cannot be utilized, except as provided for in the Conventions, for any object, however commendable, or for any other humanitarian purpose. If the red cross is sometimes exploited in a scandalous fashion in order to sell pseudomedical rubbish, there are other abuses which, although illegal, have no moral taint. The case of doctors and chemists is the most obvious example.
    It seems quite right that representatives of these two professions, both serving humanity, should have a distinctive and uniform emblem to designate their residences, their cars, or themselves personally. But [p.387] instead of the inadmissible course of trying to take the red cross or the Swiss cross as their emblem, why should doctors not follow the recommendation of the medical authorities in certain countries and adopt the sign of Aesculapius (the staff and snake -- not to be confused with the caduceus or wand of Mercury, which is the symbol of commerce)? Chemists, in their turn, could use the ancient sign of their profession: the snake, entwined round the cup of Hygeia, the goddess of health, daughter of Aesculapius (12).
    A great deal of popular instruction is needed to root out the basic misconception of those who still believe that the red cross may be used to designate everything connected with the fight against disease.

    C. ' As regards time '. -- In the first place, the prohibition is valid "at all times" -- in peacetime as in war.
    Secondly, unauthorized uses must disappear irrespective of the date of their adoption. This requirement was already clearly contained in the 1906 and 1929 Conventions (13). Some States, however, following constitutional principles when legislating, made an exception in the case of rights acquired by prior use. It is therefore most fortunate that the wording should now be explicit. Trade-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.

    [p.388] PARAGRAPH 2 -- MISUSE OF THE WHITE CROSS
    ON A RED GROUND

    A. ' Forms of abuse '. -- The formal prohibition -- proclaimed in the 1906 Convention and given legal effect by national legislation -- of the improper use of the red cross sign, led to the misuse of the Swiss arms by numerous commercial firms. A white cross on a red ground was, for example, adopted in several countries as a special sign for chemists. No longer entitled to use the red cross and wishing to continue to exploit its prestige, they chose the emblem which most nearly resembled it without actually being a red cross or what would in law be considered an imitation of one. The Swiss flag was an obvious choice, constituting as it does the prototype of the red cross emblem, with the colours reversed. Experience has shown that the man in the street nearly always confuses the two crosses. The Swiss armorial bearings began to crop up on all sorts of medical or pseudo-medical articles, including those of the cheapest variety.
    The resulting damage to the emblem of the Convention and to the Red Cross movement was not any less for being indirect. The effect of such abuses was to mislead the public. A red cross, or a white cross on a red ground, is more or less consciously accepted by the general public as being in the nature of a guarantee that foodstuffs or pharmaceutical products on which it is displayed have been medically tested. Misuse of these signs is mere exploitation of the good fame of another. Moreover, the compliment the Diplomatic Conferences had intended to pay to Switzerland became a mockery, since its flag was desecrated (14).
    State armorial bearings were not, however, entirely without international protection. The Union Convention of Paris of November 6, 1925, for the protection of industrial property, revising the earlier Convention of March 20, 1883, had taken an important step forward. Under Article 6 ter, the Contracting Parties undertook (1) to prohibit the use of State emblems, and imitations of such emblems from the heraldic point of view, either as trade-marks or as parts of trade-marks, [p.389] and (2) to prohibit the use in trade of State armorial bearings when such use was of a nature to cause deception as to the origin of the goods.
    These provisions were not in themselves sufficient to eliminate existing abuses. They were inadequately incorporated in municipal law, and they applied only to trade-marks. Moreover, the heraldic criterion appears particularly inappropriate. Heraldry is a complex science, known only to a few specialists, and depends on details so precise that the slightest change can rule out imitation, even where the public would observe no difference. It was rightly said that the heraldic criterion was ideal -- for cheats! (15) Moreover, as the Swiss colours were little known abroad, it was difficult to show that their use could mislead the public as to the origin of the goods.

    B. ' Extent of the prohibition '. -- It was clear, therefore, that the sign of the white cross on a red ground must be protected by introducing the requisite clauses into the Convention itself, and this was done at the Diplomatic Conference of 1929.
    The clauses were maintained in 1949, with some additional details. It is no longer only "by reason of the tribute paid to Switzerland by the adoption of the reversed Federal colours" that the prohibition exists, but also, and especially, because "of the confusion which may arise between the arms of Switzerland and the distinctive emblem of the Convention". The fact that the principal object of the provision is to preserve the red cross sign from every sort of infringement, even indirect, is thus emphasized and attention is drawn to the deception practised by firms which exploit the resemblance between the two emblems in order to mislead the public.
    Imitations of the Swiss cross are also prohibited, as in the case of the red cross itself, because here too the ingenuity of imitators has been given free rein. (16)
    The federal colours are, however, less fully protected than the red cross. A general prohibition of the use of the Swiss cross is hardly [p.390] feasible, since it is widely used by Swiss citizens as their national emblem. The prohibition therefore applies to its use as a trade-mark or commercial mark, or as a part of such marks, and also in cases where it is used for a purpose contrary to commercial honesty or in circumstances capable of wounding Swiss national sentiment.
    A more definite form of wording, unreservedly preventing all improper use of the Swiss cross for commercial purposes, might have been preferable. But as it stands, the clause is sufficient to allow Governments to apply the letter and spirit of the Convention and eliminate every use of the Swiss cross which may lead to confusion with the red cross or imply a medical guarantee or semi-official recommendation.
    Paragraph 1 prohibits the unauthorized use of the red cross "irrespective of the date of its adoption", but this phrase does not occur in paragraph 2 in reference to the Swiss arms. The question arises of whether this allows States to reserve the vested rights of those already using the white cross on a red ground. Although this was the intention of the delegation which proposed the deletion of the clause at the Diplomatic Conference, the answer, in our opinion, is "No". The present wording of paragraph 2 is absolute, and an explicit reservation would have been needed to make an exception in the case of prior users. As stated above (17), the corresponding provision in 1929 which, even with regard to the red cross sign, did not contain the words "irrespective of the date of adoption", already excluded any possibility of reserving vested rights. Moreover, State armorial bearings have, as we have just said, been protected for some time past under international and municipal law; abuses should therefore have all disappeared. If some
    still remain, it is because municipal law is inadequate, or the authorities insufficiently vigorous. There is no justification for prolonging further a situation which we have shown all along to be highly prejudicial.

    PARAGRAPH 3 -- PERIOD OF GRACE IN STATES NOT PARTY
    TO THE 1929 CONVENTION

    The clauses prohibiting misuse of the red cross sign and misuse of the arms of Switzerland will take immediate effect (as from the entry into force of the Convention in each country) in the case of all States [p.391] party to the 1929 Convention, this latter treaty having already prohibited such abuses.
    The very few States which were not party to the 1929 Convention (18) may grant prior users of the red cross sign up to three years grace, provided that during this period -- and this innovation is happily conceived -- the signs and emblems used are not such as would appear, in time of war, to confer the protection of the Convention; consequently the only signs which may remain in use for a limited period, are those of a purely indicatory type.
    No time limit can be allowed in cases where improper use is made of the flag of the Swiss Confederation. This is commonsense, as State armorial bearings have in fact been protected for longer than the red cross itself.

    PARAGRAPH 4 -- PROTECTION OF THE ALTERNATIVE EMBLEMS

    This provision is entirely new. Formerly, the red crescent and red lion and sun were protected, under municipal law, in the countries which used them instead of the red cross, but no obligation rested on other States; unlawful use of these two alternative emblems is now prohibited in all States party to the Convention.
    As paragraph 4 refers back to paragraph 1, the scope of the prohibition is the same here as in the case of the red cross. Imitations are therefore also prohibited (19).
    There is one essential difference, however: the prohibition concerning the two alternative emblems does not affect any rights acquired through prior use; it applies only to persons who claim the right to use the emblems after the Convention has come into force.
    If this clause had not been inserted, paragraph 4 would never have been adopted. It would, indeed, have been impossible to eliminate [p.392] throughout the world signs which are used as a symbol of neutrality in only a few countries. (20)


    * (1) [(1) p.380] See above, page 324;

    (2) [(1) p.381] A particular tribute must be paid here to the
    late Paul des Gouttes, Secretary-General and Member of the
    International Committee of the Red Cross, who was,
    throughout a career rich in achievement, one of the
    emblem's most untiring champions;

    (3) [(1) p.382] ' De l'emploi abusif du signe et du nom de la
    Croix-Rouge ' by Professors Buzzati and Castori, Geneva
    1890;

    (4) [(2) p.382] The same provision was introduced the
    following year into the Tenth Hague Convention (Convention
    for the Adaptation to Maritime Warfare of the Principles
    of the Geneva Convention);

    (5) [(1) p.383] See ' Recueil de textes ', published by the
    I.C.R.C. in 1934, giving laws and decrees relative to the
    application of the Geneva Convention, especially those
    concerning the repression of abuses of the emblem;

    (6) [(2) p.383] This change would have had the added advantage
    of increasing the emphasis on the other provisions of
    Chapter IX. In 1929, protection of the distinctive emblem
    was unfortunately presented as the principal of the many
    obligations imposed by the Convention as a whole.
    Consequently, most national legislatures devoted most of
    their attention to that one point, although even there
    they did not go far enough. In actual fact the problem of
    protecting the wounded, and medical personnel and
    material, by more precise provisions than the general
    rules of penal law, against the attacks to which they are
    too often subject, required such attention just as
    urgently. Fortunately, the 1949 Conference placed much
    greater emphasis on the repression of infractions than had
    been the case in 1929;

    (7) [(1) p.384] It should also be noted that Article 23 of the
    Regulations annexed to the Fourth Hague Convention of
    1907, which is still in force, forbids the improper use in
    wartime of the distinctive badges of the Geneva
    Convention;

    (8) [(2) p.384] There are grounds for holding that abuse of
    the protective sign should have been included among the
    "grave breaches" defined in Article 50;

    (9) [(1) p.385] A curious example may be given. In one army,
    where it was customary to mark gas shells with a coloured
    cross to denote their contents, some were actually marked
    with a red cross and called "red cross shells". This
    practice, fortunately, did not survive. See ' Revue
    internationale de la Croix-Rouge ', July 1938, p. 558;

    (10) [(2) p.385] It is clear, that any red cross, whatever its
    shape or background, constitutes an imitation and should
    be forbidden;

    (11) [(1) p.386] We refer here to the limits set by the
    Convention with which we are dealing -- the First; they
    are enlarged somewhat in the Second and Fourth Conventions
    (1949). Reference should be made to the commentary on
    Article 44, which gives a complete list of the cases in
    which the red cross emblem may be employed. See above,
    page 326;

    (12) [(1) p.387] See ' Revue internationale de la
    Croix-Rouge: ' February, March and April 1933, pages 128,
    218 and 310; February 1935, page 113; January 1942, page
    77; February 1943, page 111;

    (13) [(2) p.387] On this point we cannot agree with the opinion
    of Paul Des Gouttes ' (Commentaire de la Convention de
    Genève du 27 juillet 1929 ', Geneva, 1929, pages 206 and
    207). The prohibition in Article 28 of the 1929 Convention
    was already absolute. There is no question of its having
    retrospective effect. Retroactivity would have existed if
    it had been intended to penalize those who used the sign
    before the Convention was drawn up. But the Convention
    provides only for the future. It lays down that after five
    years from its coming into force, no use of the emblem
    will be lawful, except as provided in the Convention. The
    only object of the last sentence of Article 28 is to
    prevent the registering of new unlawful signs during the
    intervening period. Finally, it may be noted that when
    ratifying the 1929 Convention, two States made
    reservations precisely with the idea of preserving the
    rights of previous users, as far as the emblem of the
    Swiss Confederation was concerned. They would not have
    done so if the Convention had spared such rights;

    (14) [(1) p.388] The Danish flag has been outraged in the same
    way, though less frequently. It consists of a white cross
    on a red ground, but, unlike the Swiss cross, not humetty,
    the arms of the cross extending on all four sides to the
    edge of the flag;

    (15) [(1) p.389] The International Association for the
    Protection of Industrial Property is at present working on
    the revision of the Paris Convention. It is seeking inter
    alia to replace the heraldic criterion by the general
    criterion of the possibility of confusion with the emblem;

    (16) [(2) p.389] While every red cross should be denounced as
    an imitation of the emblem whatever the colour of the
    background, we cannot consider every white cross to be an
    imitation of the Swiss flag;

    (17) [(1) p.390] See above, page 387 (especially footnote 2);

    (18) [(1) p.391] Reference might also have been be made to the
    1906 Convention, which already protected the red cross
    sign; but this Convention did not explicitly prohibit
    imitations;

    (19) [(2) p.391] It was pointed out at the Diplomatic
    Conference that boxes of cigarettes manufactured by the
    Turkish State Tobacco Company were marked with a red
    crescent, accompanied by stars, on a white ground. This
    mark, by reason of its colour, appears to us to be an
    imitation, just as a red cross accompanied by stars or
    other additions would be;

    (20) [(1) p.392] Iran alone uses the red lion and sun, and is
    not party to the 1929 Convention which first authorized
    the use of this alternative symbol. Not being party to the
    1906 Convention either, she has contracted no obligation
    to protect the red cross or red crescent against misuse
    within her territory. It might, therefore, appear
    unreasonable to provide for the protection of the red lion
    and sun in other countries. It is to be hoped that early
    ratification by Iran of the 1949 Conventions will end this
    anomaly;