ICRC databases on international humanitarian law
  • Print page
Commentary - Identification
    [p.221] Article 18 -- Identification


    [p.222] General remarks

    732 The possibility, in areas where hostilities take place, of identifying persons and objects entitled to respect and protection is an essential corollary to this right.

    733 The principal persons protected by the Conventions and the Protocols, i.e., the wounded, sick and shipwrecked, can be identified by means of their condition, even though an additional means of identification in the form of the distinctive emblem is desirable whenever possible. A wounded soldier will be bedridden and unable to continue taking part in combat; the situation of a shipwrecked person who has the good fortune to be retrieved does not give rise to much confusion.

    734 The same does not apply to the personnel and objects protected in their functional capacity (i.e., so that they are able to ensure the protection of persons principally protected). A soldier with medical duties is actually an able-bodied person who might well engage in combat; a medical vehicle could be used to transport ammunition rather than the wounded or medical supplies. Thus it is essential for medical personnel, units, materials and transports to be identified in order to ensure the protection to which they are entitled, which is identical to that accorded the wounded, sick and shipwrecked.

    735 The need for this is clear, and did not escape the attention of the authors of the very first Geneva Convention of 22 August 1864. Article 7 of this Convention already provided for the use of flags and armlets bearing the red cross on a white ground. In the 1949 Conventions this problem was treated in greater detail. (1)

    [p.223]

    736 Moreover, as the entire system of protection established in the Conventions is based on the trust which can be placed in the proper use of the distinctive emblem, the control of such use and the repression of abuse are of paramount importance. (2)

    737 As regards identification, the Protocol had to comply with two requirements: to determine how civilian personnel and objects entitled to respect and protection could be identified, and to adapt the means of identification to modern techniques.

    738 The first requirement was discussed from the beginning of the preliminary negotiations of the Protocol. The most delicate question was that of the emblem to be chosen to identify civilian medical persons and objects entitled to protection. Should the use of the red cross, red crescent or red lion and sun emblem simply be extended, or was it better to introduce a new emblem for such persons and objects? At first, the latter solution was chosen, and this is contained in the "Draft Rules for the Protection of Wounded and Sick and Civil Medical and Nursing Personnel in Time of Conflict", presented at the XXth International Conference of the Red Cross. (3) An emblem was even proposed, that of the Aesculapian symbol, on a white ground. However, the XXth International Conference of the Red Cross declared that it was in favour of extending the red cross, red crescent or red lion and sun emblem.

    739 In the draft Protocol Additional to the fourth Convention, presented to the Conference of Government Experts in 1971, the ICRC accepted this extension, though still without completely abandoning the Aesculapian symbol. In fact, this draft made a distinction between civilian medical personnel "organized and duly authorized by the State", (4) which should be entitled to use the emblem of the red cross (red crescent, red lion and sun), and "doctors and nurses who are not members of the State medical service", who may "with the consent of the relevant authorities, display the red Staff of Aesculapius on a white background as a means of identification". (5) Nevertheless, both at the Conference of Red Cross Experts in 1971, and at the Conference of Government Experts in the same year, the great majority of experts considered that it would be best to discard this new emblem.

    740 The following passage, taken from the ICRC contribution to the third round of the "Entretiens consacrés au droit international médical" (6) takes up the arguments which could be put forward in favour of a new emblem:

    "Extending the use of the emblem to all doctors without distinction [...] would hardly be possible nor would it be desirable. In fact, if the value of this emblem is to be retained, it is important to limit its use to those who are entitled to use it under the Conventions; moreover, its widespread use would make any control impossible. On the other hand [...] the creation of a clear, easily recognisible, "meaningful" emblem, which is neither the red cross nor [p.224] an imitation of it, and which would be adopted by the medical profession throughout the world and be recognized at a national level by each State [...] would undoubtedly soon become the symbol of devoted and innocent medical assistance, alongside the Red Cross." (7)

    Obviously these arguments lost their relevance to some extent once it was decided that the medical personnel who were also to be protected henceforth, were only personnel ' duly recognized and authorized ' by the Parties to the conflict concerned. As regards retaining the use of a different emblem for all civilian medical personnel not authorized to use the red cross, red crescent or red lion and sun, the opinion expressed by the Conference of Government Experts in 1971 finally prevailed:

    "The Commission felt, however, as did also the Conference of Red Cross Experts in The Hague in March 1971, that this new emblem conferred no special protection, that it concerned a relatively limited number of persons, and that confusion might arise by the indication of two emblems in the same Protocol. It was decided therefore not to include in this Protocol any mention of the Staff of Aesculapius." (8)

    741 Thus it was finally decided to opt for an extension of the use of the emblem of the red cross, red crescent or red lion and sun in the Protocol, because this avoided any possibility of confusion and consequently offered a better guarantee.

    742 The second requirement with which the provisions of the Protocol devoted to identification had to comply -- adapting identification to modern combat techniques -- was also of paramount importance, particularly for medical aircraft. In fact, the use of such aircraft was extremely limited in 1949 for technical reasons. (9) Merely to have the emblem of the red cross, red crescent or red lion and sun painted on an aircraft seemed insufficient to ensure effective protection, having regard to modern means of warfare.

    743 Thus to deal with this virtual impasse with regard to medical aircraft, it was necessary to solve such technical problems and it was not long before an appeal was made to technical experts rather than to legal experts. (10)

    744 Finally, these questions were grouped together in Annex I to the Protocol, which supplements Article 18 .

    [p.225] 745 It should also be noted that the problem of identification had been dealt with in various articles in the first drafts of the Protocol, particularly in the draft presented at the second session of the Conference of Government Experts in 1972. Finally, as stated in the Commentary on the draft presented to the CDDH:

    "To avoid repetition, it seemed advisable to concentrate all provisions relating to the marking and identification of medical units, means of medical transport and medical personnel in a single article, which incidentally would connect this Part and the Annex." (11)

    Paragraph 1

    746 The basic principle is stated in this first paragraph. The right to respect and protection of medical personnel and medical objects would be meaningless if they could not be clearly recognized. The Parties to the conflict therefore have a great interest in seeing that such personnel and objects can be identified by the enemy. Thus the rule laid down here is in the interests of those who are responsible for observing it. In fact, it would be the medical personnel and medical objects of the Party concerned which would suffer from poor means of identification and which could become the target of an enemy that had not identified them. Yet it must be emphasized that the means of identification do not ' constitute ' the right to protection, and from the moment that medical personnel or medical objects have been identified, shortcomings in the means of identification cannot be used as a pretext for failing to respect them.

    747 The Parties to the conflict must ' endeavour ' to ensure that the personnel and objects concerned are identifiable. As this is an obligation to achieve a result which not only depends on the Party under obligation, it cannot be imposed in an absolute fashion: despite all the efforts one might make, it is not out of the question that at some point, persons or objects, even if they are correctly marked, are not identified by the enemy in time. However, the reason that the obligation is not absolute is also because some means of identification are very expensive or highly technical, and it is not possible to impose these on Parties to the conflict which do not have the financial or technical means to employ them. The Parties to the conflict must do ' all they can, ' which in any case is in their own interest, as we have seen above.

    748 It is not specified ' who ' must be able to identify. However, it is clear that this refers first of all (though not exclusively) to those who could harm the persons and objects to be identified, i.e., mainly members of the armed forces of the adverse Party. However, no emphasis is placed on this aspect of the problem at this stage deliberately, as it occurs again in paragraph 2. What is required here is a clear identification comprehensible by everyone, as provided in the Protocol and its Annex I .

    749 finally, the personnel and objects to be identified (medical personnel, religious personnel, medical units and transports) are defined in Article 8 of the Protocol (' Terminology). ' (12)

    [p.226] Paragraph 2

    750 Paragraph 2 is the corollary of paragraph 1. If it is necessary to make one's own medical personnel and medical objects identifiable, it is also necessary to make an effort to recognize those of others. It is only on this condition that the duty to respect and protect them can be fulfilled.

    751 In the draft no distinction had been made between these two aspects of the problem, and the scope of the rule laid down in paragraph 1 of the draft was not clearly defined. This became apparent in Committee II of the CDDH, (13) and a perfectly justifiable decision was taken to have two separate paragraphs.

    752 There is of course not always a need for such a provision. Formerly, identification was purely visual and there were no special measures to take: a good eye-sight was all that was needed to identify the persons and objects regarding which there was a duty to respect and protect. However, as mentioned above, methods of warfare have developed, and long range combat has rendered purely visual means of identification inadequate. Moreover, to a great extent the technical means of long range identification are effective only if the adverse Party is equipped to perceive them. This applies particularly to electronic means of signalling and identification.

    753 In this paragraph there is again no ' obligation ' for the Parties to the conflict to adopt adequate methods and procedures. The reason is that it did not seem desirable to impose an absolute obligation which would involve excessively onerous financial or technical burdens for certain States or other Parties to the conflict. Thus States are merely urged to ' endeavour ', i.e., to do all they can, to fulfil the obligation laid down here.

    754 Obviously this is not possible without raising a practical problem. If a Party to the conflict has means of signalling at its disposal the reception of which requires a certain technology, it would be acting rashly if it used them without the assurance that the adversary has access to such technology and is ready to use it for hese purposes. Thus prior agreement between the Parties to the conflict seems almost indispensable.

    755 This paragraph requires the Parties to the conflict to endeavour "to adopt and to implement methods and procedures". Thus the obligation has two aspects. First, regarding the choice of a method i.e., the technology and equipment that are needed) and a procedure i.e., the way in which such technology can be used effectively), and secondly, as regards its implementation, which may necessitate an extensive training and instruction programme -- it is not sufficient to possess the equipment; it must also be used correctly.

    756 Finally, it should be noted that reference is made here to the identification of medical units and transports, but not to that of medical personnel. This is because, although the use of signals is not excluded, such personnel are generally identified by means of visual emblems which do not require special methods or procedures of identification.

    757 As regards the distinctive emblem and signals, these have been defined above. (14)

    [p.227] Paragraph 3

    758 This paragraph is concerned with the means of identification which must be used by civilian medical and religious personnel. It is not concerned with the medical and religious personnel covered by the Conventions, as the question of their identification is regulated there. (15)

    759 However, it should be noted in passing that Annex I emphasizes the effectiveness of the means of identification, and consequently the importance of their visibility. This means that the indications of the Conventions regarding restrictive use of the emblem (armlets) and particularly those imposing on temporary personnel the obligation to wear an emblem smaller in size, must be considered to be obsolete. (16) The real question is whether a person is or is not entitled to use the distinctive emblem. Once his right to such use has been established, it would be illogical to impose measures which would diminish the visibility of the emblem, and in this way render effective protection uncertain.

    760 Though the preceding remark applies to all persons entitled to the use of the distinctive emblem, it should be remembered that paragraph 3 applies only to ' civilian ' medical and religious personnel. For such personnel the rule regarding identification is imposed only "in occupied territory and in areas where fighting is taking place or is likely to take place". We will not reconsider here the concept of occupied territory. (17) The expression "areas where fighting is taking place or is likely to take place" is a result of the work of the mixed Working Group of Committee II and Committee III of the CDDH, which recommended:

    "a) terms that should be used to cover the various military situations that are envisaged in some of the articles contained in the Draft Additional Protocols I and II to the Geneva Conventions of 12 August 1949; and b) definitions of the terms recommended". (18)

    As regards the present article, this Working Group defined the expression ' combat area ' as follows: "In an armed conflict, that area where the armed forces of the adverse Parties actually engaged in combat, and those directly supporting them, are located." (19)

    761 In the case under consideration here, the areas concerned are not only such areas, but also "areas where fighting [...] is likely to take place", i.e., areas which may be presumed to become combat areas as defined above. Obviously the expression "is likely to take place" allows for a degree of judgment. However, there is no reason for the authorities concerned to be too restrictive. As soon as contact with the enemy becomes a possible or probable event, such authorities have every interest in providing civilian medical and religious personnel with the distinctive emblem and the identity card prescribed: it is a matter of their protection.

    [p.228]

    762 However, it should be noted that the expression "should be recognizable" (in the French text "se feront en règle générale reconnaître") to some extent reduces the strictness of the obligation. In fact, the choice of this expression is the result of lengthy discussions. Some would have preferred that the entire system -- particularly the issuing of the identity cards referred to here -- should be set in motion already in peacetime. (20) Others were opposed to this point of view and even wished the system to remain optional in time of conflict. One solution envisaged by the Drafting Committee of Committee II was to make the identity card compulsory for permanent personnel and optional for temporary personnel. (21) One of the main arguments for this solution was that: "in extraordinary combat conditions it might not be possible to provide temporary civilian medical personnel with identity cards". (22) However, a distinction of this sort was rejected, particularly because "the carrying of an identity card proved the qualifications of the holder, whether permanent or temporary. It was therefore in everyone's interest that such cards should be carried". (23) Such a distinction regarding identification was abandoned in Article 18 , but the possibility of a simplified card for temporary personnel was introduced in Annex I of the Protocol. (24) Moreover, several delegates raised the practical problems facing certain countries. (25)

    763 Finally, therefore, the introduction of the expression "should be recognizable" (in French "se feront en règle générale reconnaître") is the result of compromise. This means that personnel should be provided with such emblems and cards, but that it is not made a condition sine qua non of protection. Neither the identity card nor the distinctive emblem create a right of protection as such, as one delegate clearly pointed out: "protection was provided to medical personnel because of their function; the distinctive emblem was merely evidence of protection". (26) The fact remains that the absence of such evidence -- particularly the emblem -- would make the safety of such personnel very uncertain, and it is therefore desirable that this rule is in practice generally observed. Moreover, it should b noted that though the expression "should" (in French "en règle générale") allows civilian medical and religious personnel to operate in exceptional cases without the prescribed means for certifying their status, it cannot be interpreted as permitting the use of another distinctive sign, even in exceptional cases. One delegate correctly remarked in this respect that "there was no obligation to carry a distinctive emblem, but if one was carried it must be the distinctive emblem of the Red Cross (Red Crescent, Red Lion and Sun)". (27)

    764 The details relating to the identity card and the distinctive emblem can be found in Articles 1-4 of Annex I to the Protocol (28).

    [p.229] Paragraph 4

    765 This paragraph lays down the principle of the marking of medical units and transports. One may wonder why, as in the case of personnel, it is not solely concerned with ' civilian ' medical units and transports. The reason is that the concepts ' medical units ' and ' medical transports ' are not exactly equivalent in the Protocol to the concepts used in the Conventions. Thus it was necessary to repeat the rule for all units and transports.

    766 Whether the units and transports are civilian or military, their use is subject to control by the Party to which they belong. Thus the distinctive emblem should not be affixed without the consent of the competent authority of this Party (which may also be an adverse Party for that matter, particularly in the case of occupied territory). Apparently this authority has but one choice: either it allows a unit or transport the character of a ' medical ' unit or transport in the sense of the Protocol, in which case it permits and even requires marking it by means of the distinctive emblem, or it does not recognize this character and does not allow the use of the emblem.

    767 However, in reality the situation is more varied: certainly, the authority could not permit a unit or transport which is not recognized as a medical unit or transport within the meaning of the Protocol to be marked in this way. On the other hand, it is not out of the question that it desists from marking a medical unit or transport recognized as such, even if, in the great majority of cases, this would be against its own interest. Indeed, it may happen in some exceptional cases that a distinctive emblem is too striking, and this could be detrimental to military exigencies. (29)

    768 The way in which medical units and transports are to be marked is specified in Annex I to the Protocol, which emphasizes the visibility of the emblem. (30)

    769 However, it was necessary to take into account in the Protocol the special solutions adopted in the Second Convention for marking hospital ships and coastal rescue craft. In this respect no decision could be taken before the discussion on the articles of the Protocol relating to medical ships and craft. (31) Article 22 of the Protocol ' (Hospital ships and coastal rescue craft) ' (32) extends the possibility of using the ships and craft described in Articles 22 , 24 , 25 and 27 of the Second Convention and introduces some flexibility. Thus the solution which was finally adopted was to retain the system laid down in the Second Convention for the marking of such ships and craft. This concerns most of all Article 43 of the Second Convention, to which we now refer. It should be noted that this article already emphasizes the visibility of the distinctive emblem. Moreover, it lays down the rules to be adopted with regard to national flags, which must be hoisted or hauled down, depending on the circumstances. Finally, the last paragraph of this Article 43 is of special interest here, as it urges Parties to the conflict to endeavour at all times "to conclude mutual agreements, in order to use the most [p.230] modern methods available to facilitate the identification of hospital ships". On the basis of this paragraph, and to supplement the measures which it requires, even States not Parties to the Protocol will be encouraged to apply the appropriate provisions of Annex I to the Protocol. (33)

    770 In addition, it should be noted that in Article 23 ' (Other medical ships and craft) ' the Protocol introduces the possibility of using medical ships and craft not covered by the Second Convention. The marking of such ships and craft is laid down in Article 23 ' (Other medical ships and craft), ' paragraph 1. This article requires that such ships and craft are marked with the distinctive emblem and comply as far as possible with Article 43 , paragraph 2, of the Second Convention (which provides for the question of the flags to be flown at the mainmast of hospital ships). Moreover, the provisions of the Protocol and its Annex I relating to medical units and transports are also applicable to such ships and craft.

    Paragraph 5

    771 We saw above (34) that one of the requirements with which the Protocol had to comply with regard to the question of the means of identification was to adapt these to modern techniques. The use of distinctive signals, in addition to the distinctive emblem, meets this requirement.

    ' First sentence '

    772 The first sentence of paragraph 5 grants to Parties to the conflict the competence to authorize the use of distinctive signals, though they remain free not to exercise this competence. However, it imposes some limitations on this competence as regards the purpose for which and the way in which it must be used. In fact, such signals may not be used for other purposes than "to identify medical units and transports", i.e., to allow in the first place the enemy to realise that he is dealing with such units or transports soon enough to spare them. The way in which this competence is to be exercised, is laid down in Annex I to the Protocol. Thus the distinctive signals will be used in accordance with this Annex.

    773 Moreover, it should be noted that, with the exception laid down in the second sentence of the paragraph, such signals should be used only to supplement the distinctive emblem, which remains the basic element. Apart from the exception mentioned, it would be unlawful to use distinctive signals to permit the identification of a medical unit or transport which was not marked with the distinctive emblem.

    [p.231] ' Second sentence '

    774 As mentioned above, there is one exception to the rule that distinctive signals can only be used for units and transports marked with the distinctive emblem. This exception led to some controversy in Committee II of the CDDH. It is contained in Article 5 ' (Optional use), ' paragraph 2, of Annex I to the Protocol, and relates to "temporary medical aircraft which cannot, either for lack of time or because of their characteristics, be marked with the distinctive emblem". The draft contained this exception "in case of a emergency" for all temporary means of medical transport.

    775 As one delegate stated, there were three different currents of opinion with regard to this question. The first was that the distinctive signals could be used instead of the distinctive emblem in case of emergency. The second was that under no circumstances should the distinctive signals be used unless the unit or the transport concerned was also marked with the distinctive emblem. Finally, the third current of opinion was that the distinctive signals should normally be used only when a distinctive emblem was also displayed, but that in extreme emergencies it should be possible to use any available means to identify transports in temporary use for medical purposes. (35) One delegate justifiably remarked that there were also a number of intermediate possibilities, particularly that of restricting the exception solely to aircraft. (36) Finally, it was the compromise provided by this last solution which the Committee adopted on the basis of a report of a Working Group to which it had submitted the whole problem. (37)

    776 The principal arguments in favour of the use of the distinctive signal only in combination with the emblem were, on the one hand, that the use of distinctive signals without displaying the distinctive emblem would entail the risk that the latter would lose its character of being the main means of identification, (38) and on the other hand, that it was dangerous to permit an aircraft not marked with the distinctive emblem to transmit distinctive signals because of the increased risk of abuse, as military aircraft "would have no difficulty in transmitting on a given frequency or emitting a blue light". (39)

    777 The main argument in favour of the use of distinctive signals by units or transports not displaying the distinctive emblem was that:

    "the number of small aircraft or helicopters required for use solely in transporting the wounded would be very much beyond the capacity of most countries and they would frequently use aircraft which had been engaged in military combat at one time of the day for humanitarian activities at another". (40)

    [p.232] For this reason it would be necessary that such aircraft, which cannot be marked with the distinctive emblem, can use distinctive signals when engaged in humanitarian missions.

    778 The solution which was finally adopted retains the fundamental character of the distinctive emblem which has been in force since the adoption of the original Convention of 22 August 1864. The use of distinctive signals by temporary medical aircraft -- and exclusively by such aircraft -- which are not marked with the distinctive emblem therefore remains an exception, but it is a welcome exception from the humanitarian point of view, for in case of emergency it is important that any medical aircraft available to bring relief to the wounded can be used.

    779 In order to interpret the second sentence of paragraph 5 correctly it should therefore be understood that "the special cases covered in that Chapter" (i.e., Chapter III of Annex I to the Protocol) are cases in which temporary medical aircraft "cannot, whether for lack of time or because of their characteristics, be marked with the distinctive emblem" (Article 5 -- ' Optional use, ' paragraph 2, first sentence, of Annex I) and that the only medical transports referred to here are these same temporary medical aircraft. (41)

    780 Finally, it should be noted that, although the use of flashing blue light is reserved in the air to medical transports, it is not so on land and on water, unless a special agreement has been reached. However, this is a different problem, for in this case a flashing blue light is obviously no longer considered to be a distinctive signal in the sense of the Protocol. (42)

    Paragraph 6

    ' First sentence '

    781 Paragraphs 1-5 laid down principles which may be quite difficult to implement, especially in view of the new technical means employed. This is the reason why an Annex is needed to provide all the requisite technical specifications and to relieve the Protocol of provisions which would have made it extremely unwieldy. The first sentence of paragraph 6 simply describes the relation between Article 18 and Annex I. It clearly shows -- and this is its true ' raison d'être ' -- that the High Contracting Parties or the Parties to the conflict have an obligation to carry out the provisions of Article 18 , paragraphs 1-5, in accordance with Chapters I-III of Annex I (entitled respectively: ' Identity cards; The distinctive emblem; Distinctive signals). ' The fact that some of the provisions in the Annex are not absolutely mandatory, or are even optional, does not alter this obligation in any way. Some provisions are not mandatory because the Annex says so, and not because compliance with the Annex for carrying out the provisions of Article 18, paragraphs 1-5, is optional.

    [p.233] ' Second sentence '

    782 The principle contained in this sentence is repeated in Article 5 ' (Optional use), ' paragraph 1, first sentence, of Annex I, which explains why one delegate doubted its usefulness. (43) Indeed, as Article 18 , paragraph 6, first sentence, of the Protocol requires absolute compliance with this Annex for the execution of the provisions laid down in Article 18 , paragraphs 1-5, as we saw above, it was not necessary to include this principle in two places. However, the reason that it was finally retained in Article 18 was probably because it does concern a principle and it was therefore considered logical to include it in the Protocol itself, and not only in the Annex.

    783 The rule concerned here is of paramount importance. The effectiveness of protection actually depends on the trust that can be placed in the signalling. If a Party to the conflict has the slightest doubt regarding the nature of an aircraft transmitting agreed signals, it will probably be inclined not to grant this aircraft the protection to which it is entitled. It is certainly possible to conceive of the use of the same distinctive signals for other peaceful purposes, but the exclusive use for the purpose of the identification of medical units and transports is the only way of removing all ambiguity and of allaying all doubt. In such cases doubt is too dangerous to be permitted. Admittedly an aircraft on a military mission could use such signals, but this would be a flagrant violation of the Protocol with all the attendant consequences. The exclusive character of the rule does not allow for any half measures: either it is respected, or it is consciously violated.

    784 Only distinctive signals are covered here because the same principle has already been laid down with regard to the distinctive emblem in Article 44 , paragraph 1, of the first Convention. In that case it obviously does not concern only medical units and transports, but also medical personnel and material.

    785 Article 18 , paragraph 6, second sentence, refers to the exception laid down in Chapter III of Annex I. These exceptions, which are also referred to at the beginning of Article 5 ' (Optional use), ' paragraph 1, of the Annex, is mentioned in Article 6 ' (Light signal), ' paragraph 3. They concern only the use of the flashing blue light which is considered as a distinctive signal for the use of medical aircraft, though not -- unless there is a special agreement between the Parties to the conflict -- for vehicles or ships. Thus the exceptions apply to all the categories of medical vehicles and medical ships and craft. However, it does not permit the use of the signal on a transport in some cases for the purpose of identifying it as a medical transport, and sometimes for other purposes. Thus the exceptions do not allow for any ambiguity and the principle retains all its force and indispensable clarity. (44)

    [p.234] Paragraph 7

    786 The distinctive emblem of the red cross or the red crescent is of course intended first of all to permit the identification of persons and objects which should be protected in time of armed conflict, for the purpose of their protection. However, it is important that already in time of peace, the image of the emblem acquires or retains dignity for everyone. For example, the widespread use of the red cross emblem for commercial purposes would certainly damage its image, and in time of armed conflict might have unfortunate repercussions on the application of the rules demanding the respect and protection of persons and objects which it is used to identify.

    787 The drafters of the Geneva Conventions were aware of this danger, and strict rules were laid down regarding the use of the emblem of the red cross, red crescent or red lion and sun in peacetime. It was in 1949 that a clear difference was made, in Article 44 of the First Convention, between the use of the distinctive emblem in time of war and in time of peace. In the first case, it is a protective emblem, while in the second, it is only an indicatory sign. However, for the reasons mentioned above, the fact that it is of lesser importance then does not mean that the emblem, if it is not to lose credibility, may be used by anyone for any purpose in time of peace. For this reason, Article 44 of the First Convention imposes strict limitations on its use. Subsequently, to supplement the provisions of this article, the XXth International Conference of the Red Cross in 1965 adopted the "Regulations on the Use of the Emblem of the Red Cross, of the Red Crescent, and of the Red Lion and Sun by National Societies". (45)

    788 In this commentary it is not possible to describe the rules relating to the use of the distinctive emblem in time of peace. On this matter we refer to Article 44 of the First Convention, the commentary thereon (46) and the above-mentioned Regulations.

    789 The object of paragraph 7 of Article 18 is to prevent the increased use of the distinctive emblem in time of armed conflict, particularly to civilian medical personnel and units, from serving as a pretext for using this emblem for indicatory purposes in time of peace more extensively than allowed by Article 44 of the First Convention. Such an extension would therefore be unlawful: this paragraph removes any doubt that might remain on this subject.

    790 The introduction of this paragraph, which was not included in the 1973 draft, was proposed by the Working Group set up by Committee II to study the article. Committee II, in plenary, adopted this new paragraph as well as the substance of the Working Group's report. (47) It might be thought that this paragraph was not essential and merely confirmed an established fact. However, as in other cases, the CDDH showed its concern not to leave any gaps in the system it was supplementing.

    [p.235] Paragraph 8

    791 To a great extent the system of the Conventions is based on the trust which can be placed in the distinctive emblem. The supervision of its use and the repression of abuses are therefore indispensable elements in the system.

    792 As pointed out above, (48) modern techniques of warfare require new means of signalling and identification, and to this end the Protocol has introduced different distinctive signals. It is clear that the reasons which led to the supervision of the use of the distinctive emblem and the repression of abuse also apply with regard to such signals. Thus, it was easiest simply to refer to the rules of the Conventions and the Protocol dealing with such subjects. These rules therefore become applicable to distinctive signals, as well as to the distinctive emblem, for the Parties to the Protocol.

    793 The provisions concerned are in particular those contained in Chapter VII and in Articles 53 and 54 of the First Convention, in Chapter VI of the Second Convention, in Articles 18 and 20 of the fourth Convention, in the article under consideration here, and in Article 85 ' (Repression of breaches of this protocol) ' of the Protocol. It is not possible to discuss these provisions in detail here, and we refer to the commentaries thereon.

    794 However, the obligation upon the Contracting Parties (or, in the case of the Protocol, upon any other Parties to the conflict bound by it), to supervision the use of the distinctive emblem and signals by persons and on objects belonging to them, also arises in a more general way from their undertaking to respect and to ensure respect for the Conventions and the Protocol in all circumstances. (49)

    ' Y.S. '


    NOTES (1) Cf. Chapter VII of the First Convention, containing seven articles, entitled: "The distinctive emblem"; Chapter VI of the Second Convention, with the same title, and containing five articles; Articles 18 (paras. 3 and 4), 20 (para. 2), 21 and 22 (para. 2) of the Fourth Convention;

    (2) On this subject, cf. commentary para. 8, infra, pp. 234-235;

    (3) Cf. introduction to Part II, supra, p. 107;

    (4) Art. 7 of the Draft, cf. CE/7b, p. 6;

    (5) Cf. Art. 11 of the Draft, CE/7b, p. 8;

    (6) On this subject, cf. introduction to Part II, supra, p. 107;

    (7) Translated by the ICRC. The original French is as follows: "Une extension de l'usage de l'emblème à tous les médecins sans distinction [...] ne serait guère possible ni souhaitable. Il importe en effet, si l'on veut conserver à cet emblème toute sa valeur, d'en limiter l'emploi aux seuls bénéficiaires prévus par les Conventions; de plus, sa multiplication rendrait tout contrôle impossible. En revanche [...] la création d'un emblème clair, bien reconnaissable, "parlant", qui ne serait ni la croix rouge ni une imitation de celle-ci et serait adopté par l'ensemble du corps médical dans le monde et reconnu sur le plan national, par chaque Etat [...] deviendrait rapidement sans doute, à côté de la
    Croix-Rouge, le symbole de l'assistance médicale, dévouée et innocente." Contribution of the ICRC to the "Entretiens consacrés au droit international médical" (Liège, April 1956), Document ICRC, D.430, pp. 6-7;

    (8) ' CE 1971, Report, ' p. 26, para. 66;

    (9) On this subject, cf. in particular Art. 36 of the First Convention, and ' Commentary I, ' pp. 284-293;

    (10) On this subject, and in particular for the historical background to these negotiations, cf. commentary Annex I, infra, p. 1137;

    (11) ' Commentary Drafts, ' p. 27;

    (12) Cf. commentary Art. 8, sub-paras. (c), (d), e) and (g), supra, pp. 124-131;

    (13) Cf. O.R. XI, p. 166, CDDH/II/SR.18, para. 7;

    (14) Cf. commentary Art. 8, sub-paras. (l) and (m), supra, pp. 134-135;

    (15) Cf. First Convention, Arts. 40-41; Second Convention, Art. 42;

    (16) On this subject, cf. also commentary Annex I, Arts. 3 and 4, infra, p. 1173;

    (17) On this subject, cf. in particular ' Commentary IV, ' pp. 2 ff. and 59 ff;

    (18) Report of the mixed Working Group, March 1975, O.R. XIII, p. 199, CDDH/II/266-CDDH/III/255;

    (19) Annex A of the above-mentioned report, ibid., p. 203;

    (20) Cf. in particular O.R. XI, p. 169, CDDH/II/SR.18, para. 27;

    (21) Cf. text of Art. 18 as submitted in document CDDH/II/240/Add. 1 (not published in the O.R.);

    (22) O.R. XI, p. 307, CDDH/II/SR.30, para. 17;

    (23) Ibid., p. 310, CDDH/II/SR.30, para. 31; cf. also paras. 33 and 34;

    (24) Cf. Annex I, Art. 2, para. 2;

    (25) O.R. XI, pp. 310-311, CDDH/II/SR.30, para. 35; cf. also paras. 39 and 41;

    (26) Ibid. p. 309 CDDH/II/SR.30, para. 27;

    (27) Ibid. p. 313, CDDH/II/SR.30, para. 60;

    (28) On this subject, cf. commentary Annex I, infra, p. 1153;

    (29) In this respect, cf. also in particular Art. 42, para. 3, of the First Convention. Cf. also commentary para. 5, second sentence, infra, pp. 231-232;

    (30) On this subject, cf. Annex I, Arts. 3 and 4 and the commentary thereon, infra, p. 1173;

    (31) Cf. O.R. XI, p. 560, CDDH/II/SR.49, paras. 66-67;

    (32) On this subject, cf. infra, p. 253;

    (33) Cf. in particular Arts. 3-5 and 7-11, as well as the commentary thereon, infra, p. 65 and p. 103;

    (34) Cf. supra, p. 224;

    (35) Cf. O.R. XI, p. 170, CDDH/II/SR.18, para. 32;

    (36) Cf. p.231] Ibid., para. 37;

    (37) Ibid., pp. 214-217, CDDH/II/SR. 22, paras. 6-30;

    (38) Ibid., p. 166, CDDH /II/SR.18, para. 9;

    (39) Ibid., p. 168, para. 18;

    (40) Ibid., para. 19. Cf. also in particular para. 33;

    (41) Cf. in addition commentary on Annex I, Art. 5, para. 2, infra, pp. 1202-1204;

    (42) On this subject, cf. also commentary on Annex I, Art. 6, infra, pp. 1210-1211;

    (43) Cf. O.R. XI, pp. 215-216, CDDH/II/SR.22, paras. 13 and 22;

    (44) Cf. also commentary Annex I, Art. 6, para. 3, infra, pp. 1210-1211;

    (45) These regulations, presently being revised, can be found, i.a., in the ' International Red Cross Handbook, ' 12th edition, Geneva, 1983, pp. 514 ff.;

    (46) ' Commentary I, ' pp. 323-339;

    (47) Cf. O.R. XI, p. 217, CDDH/II/SR.22, para. 30;

    (48) Cf. supra, p. 224;

    (49) Cf. Art. 1 common to the Conventions, and Art. 1, para. 1, of the Protocol;