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Commentary - Art. 41. Chapter VI : The distinctive emblem
    ARTICLE 41. -- USE OF THE EMBLEM


    This Article did not exist in the 1907 Convention. Paragraph 1 corresponds to Article 39 of the First Geneva Convention, and paragraph 2 to Article 38, paragraph 2 .

    PARAGRAPH 1. -- USE OF THE EMBLEM

    1. ' Nature and use '

    The sign of the red cross on a white ground (1) came into being in 1863 at the same time as the Red Cross movement and was sanctioned at international level by the Geneva Convention of [p.227] 1864; it is above all the distinctive emblem of the Medical Service of the armed forces. It is also the emblem of the Red Cross movement, and one of the special duties of the National Red Cross Societies is to serve as auxiliaries to the Medical Service. Although not specifically referred to here, those Societies and other bodies officially recognized as auxiliaries to the Medical Service of the armed forces are entitled to use the red cross emblem, on land or at sea (2).
    The present Convention refers only to the "protective sign" as it has been called, that is to say to the cases where the sign is a virtually constitutive element of protection, displayed on the buildings, persons and objects entitled to respect under the Convention. In other cases, which follow from the First Geneva Convention (Article 44, paragraph 2 ) and to which we need not refer at length here, the sign is purely indicatory, i.e. it is used only 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 naturally has its essential significance when used as a protective sign. 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 (3), vehicles and objects protected by the Convention.
    The following are entitled to the protective sign under the present Convention:

    (a) hospital ships belonging to the State, to relief societies and to
    private persons (Articles 22 , 24 and 25) ;

    (b) hospital ships belonging to relief societies or private persons of
    neutral countries which give assistance to a belligerent (Articles 25
    and 43 );

    [p.228] (c) lifeboats of hospital ships, coastal lifeboats and small craft used
    by the Medical Service (Articles 27 and 43 );

    (d) fixed coastal installations used by rescue craft (Articles 27 and
    41 );

    (e) sick-bays of ships (Articles 28 and 41 );

    (f) the medical and religious personnel of hospital ships and their crews
    (Articles 36 and 42 );

    (g) the medical and religious personnel of the navy and the merchant
    marine (Articles 37 and 42 );

    (h) medical equipment (Article 41 );

    (i) medical aircraft (Article 39 ).

    It should also be noted that, under Article 44, paragraph 3 , of the First Convention of 1949, the international Red Cross organizations are permitted to use the red cross emblem, and the sign will have protective value when the nature of their work so requires. The International Committee of the Red Cross might therefore be led to display the emblem on ships chartered by it, for instance, in order to convey relief supplies for war victims, as it did during the Second World War (4).
    Similarly, the Fourth Geneva Convention (Article 21 ) states that vessels specially provided for conveying wounded and sick civilians, the infirm and maternity cases are to be respected and protected in the same way as civilian hospitals on land. Such vessels may therefore display the red cross emblem.
    If enemy troops at a distance are really to be able to accord these persons, objects, buildings or vehicles the respect required by the Convention, they must be in a position to recognize them for what they are. As the Convention specifies, the emblem will generally be displayed by means of flags and armlets. It may also, however, be painted on the roof of buildings, on the ground, or on the sides and the deck of hospital ships (Article 43 ), etc.
    We have used the qualification "in principle" for two reasons. In the first place there is no obligation on a belligerent to mark [p.229] his medical units with the emblem. Sometimes military commanders have camouflaged such units -- i.e. have abstained from marking them and even tried to conceal them -- in order to conceal the presence or real strength of their forces. This is more likely to occur on land than at sea. Obviously, respect for camouflaged units will be purely theoretical. The enemy can respect a medical unit only if he knows of its presence. If the unit is exposed to long-range enemy fire, it will thus lose a large part of its security. If however, the enemy approaches, for instance, and recognizes the medical unit as such, he must obviously respect it. That is why we have stated above that the emblem is a ' virtually ' constitutive element of protection under the Convention.
    The second reason is that it will not always be physically possible to mark each 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 Conventions 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. In the case of hospital ships -- the most important here -- this will naturally be so since Article 43 specifies that all exterior surfaces of such vessels must be white. Obviously, however, should there be some good reason why an object protected by the Convention can be marked only 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.
    The statement in the First 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. (5) That is obviously not so. The word "colours" should be taken to refer simply to the colours white and red. If it had been intended to speak of the Federal flag, the word "reversing" would not have been used. The records of the Diplomatic Conference of 1906 are, moreover, explicit: the Conference deliberately refrained from defining the form of the cross [p.230] 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 objects protected by the Convention on the pretext that the emblems displayed were not of the prescribed proportions. 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.
    It has, however, become a general practice to use a Greek cross as the distinctive emblem. This is a cross formed of four arms equal to each other, consisting of two bars, one vertical and the other horizontal, which cross in the centre and do not extend to the edges of the shield. The Swiss cross is a Greek cross.
    It is to be hoped that this practice will continue, for too much diversity might give rise to confusion and doubt. The word "cross" is applied to an infinite variety of signs: to cite only the most simple among them, the cross of Saint Andrew (which is in the form of an X), the cross of Saint Anthony (which is tau-shaped) and the Egyptian cross (key of life).

    2. ' Control by the military authority '

    The initial phrase of the present Article is most important: use of the emblem is to be "under the direction of the competent military authority".
    This wording shows that it is the military command which controls the emblem and can give or withhold permission to use it. Moreover, only that command can order a medical unit to be camouflaged.
    The 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.
    It is understood that it is not necessary to obtain special permission each time the flag is used. In practice, a general order will usually be given once and for all. So far as the Medical Service [p.231] of the armed forces is concerned, the authorization must be largely presumed.
    Who is the "competent military authority"? 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 the use of the emblem.

    PARAGRAPH 2. -- AUTHORIZED EXCEPTIONS

    The founders of the Red Cross intended the emblem 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; the reversal of the Swiss colours created a new emblem, devoid of any national association. Similarly, the emblem chosen was intended to be without any religious significance, since it was to be employed by persons of all beliefs (6).
    It was rightly regarded as essential to have a single emblem only, but although unity was universally established -- at least legally -- by the 1864 Geneva Convention, it was not to endure for long. It was precisely during the drafting at The Hague in 1899 of the Maritime Convention, the revised version of which we are studying here, that the delegates of certain Eastern countries requested the introduction of other emblems, alleging that in their countries any cross symbolized the Christian religion. The Conference was not competent to deal with a matter relating to the Geneva Convention. The same scene again took place at The Hague in 1907. In 1929, the two emblems authorized as exceptions were introduced into the Geneva Convention -- namely the red [p.232] crescent, and the red lion and sun (7). In 1949, the text of the Maritime Convention was brought into line with that of the First Convention, which maintained the two exceptions already authorized as regards the emblem, while at the same time refusing to accept any
    others (8).
    The present Article, like the corresponding provision in the First Convention, recognizes the exceptions "in the case of countries which already use" them. "Already" means before 1949.
    The International Committee of the Red Cross has hitherto taken the view that it should not oppose recognition of relief societies of Moslem countries even if they have adopted the red crescent emblem since 1949. That is not the problem.
    The important thing is that some day, it is to be hoped in the near future, all countries will agree to revert to a single emblem throughout the world. The red cross is an international sign, devoid of any religious significance, and it would be illogical to try to replace it by national or religious emblems which, in time of war, are symbols of belligerency and not of immunity. It is to be hoped that in the Middle Eastern countries steps will be taken to explain the real and universal significance of the red cross emblem. Humanity would stand to gain thereby.


    * (1) [(1) p.226] With a view to avoiding confusion, "red cross"
    is printed in small letters when it refers to the heraldic
    emblem, capitals being reserved for the "Red Cross" as an
    institution;

    (2) [(1) p.227] In accordance with Article 44 of the First
    Geneva Convention, and with Articles 42 and 43 of the
    present Convention by virtue of the reference therein to
    Articles 36, 37, 24, 25 and 27;

    (3) [(2) p.227] "Persons" clearly means medical and religious
    personnel, and not the wounded themselves. We do not,
    however, exclude the possibility that in case of emergency
    a group of wounded or shipwrecked persons might be
    indicated to the enemy by means of a red cross flag, for
    instance, in order that any attack may cease. After all
    the emblem would protect them if they were in a hospital
    or a medical vehicle;

    (4) [(1) p.228] See ' Commentary I, ' p. 335, and ' Report of
    the International Committee of the Red Cross on its
    activities during the Second World War, ' Vol. III, p.
    124;

    (5) [(1) p.229] This is a "cross humetty", having arms equal
    to each other and of a length exceeding their breadth by
    one-sixth;

    (6) [(1) p.231] In ' Commentary I, ' p. 302, we have given
    proof of the neutrality of the emblem;

    (7) [(1) p.232] Most of the Moslem States have adopted the red
    crescent. The red lion and sun is used only by Iran, which
    is a Moslem country but of the Shiite rite and cannot
    therefore use the red crescent emblem. Iran has not
    ratified the 1929 Convention but has done so in the case
    of the 1949 instruments;

    (8) [(2) p.232] Thus the Diplomatic Conference rejected a
    request by Israel for recognition of the red "shield of
    David";