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Commentary - Identification
    [p.779] Article 66 -- Identification


    [p.780] General remarks

    2641 Article 66 ' (Identification) ' deals with marking and other means of identification laid down for civil defence personnel and objects. (1) Its main ' raison d'être ' is the fact, amply demonstrated for medical personnel and objects, that civil defence personnel and objects cannot be effectively protected if there is no way of identifying them.

    2642 This article is largely inspired by the provisions laid down in Article 18 ' (Identification), ' which deals with the same problems for medical personnel and objects and which it follows as closely as possible. (2) In addition it is supplemented by Chapter V ' (Civil defence) ' of Annex I.

    2643 In this commentary we will refer to Article 18 ' (Identification) ' and Chapter V ' (Civil defence) ' of Annex I for explanations which we have already given in our comment on those provisions.

    Paragraph 1

    2644 This paragraph lays down the principle that civil defence personnel and objects must be identifiable. The way in which this obligation is to be fulfilled is described elsewhere in this article and in Chapter V ' (Civil defence) ' of Annex I.

    [p.781] ' First sentence ' (3)

    2645 The personnel and objects which must be identifiable are those defined in Article 61 ' (Definitions and scope), ' sub-paragraphs (b), (c) and (d), (4) as well as buildings also protected pursuant to Article 62 ' (General protection), ' paragraph 3. Thus this sentence does not cover civilians who perform civil defence tasks in response to an appeal from the authorities, (5) but without being attached to a civil defence organization.

    2646 Such personnel and objects must be identifiable "while they are exclusively devoted to the performance of civil defence tasks". This wording requires explanation.

    2647 During the preparatory work the idea had been put forward, first, to distinguish permanent from temporary personnel, and secondly to allow permanent personnel to use the sign permanently, and to allow temporary personnel to use it only for the duration of their assignment to civil defence tasks. (6) This followed the system adopted in the Geneva Conventions for temporary medical personnel. (7)

    2648 As we have seen, this distinction between permanent and temporary personnel was not finally adopted in the Protocol for civil defence personnel, particularly because the definition of the tasks performed by organizations responsible for civil defence varies a great deal from country to country and there was no intention to exclude the performance of other tasks, even by personnel permanently assigned to such organizations. (8)

    2649 On the other hand, it then became essential to specify that the special protection of Chapter VI (Civil defence) of Part IV is only granted to personnel while they are exclusively devoted to the performance of civil defence tasks.

    2650 Thus this provision not only indicates that civil defence personnel and objects must be identifiable by the civil defence sign while they are exclusively devoted to civil defence tasks; a contrario, it also implies that they ' must not ' be identified as such while they are not, or not exclusively, devoted to such tasks. (9)

    [p.782] ' Second sentence '

    2651 The necessity of identifying shelters is obviously also of great importance. The fact that there is a separate sentence to cover them is because they might not belong to civil defence organizations. (10)

    2652 The expression "similarly identifiable" means, on the one hand, that the means of identification laid down in the remainder of the article and in Chapter V ' (Civil defence) ' of Annex I should also be used for shelters, and on the other, that they should only be marked when they are ' exclusively ' devoted to the purpose of sheltering the civilian population.

    Paragraph 2

    2653 This paragraph is the corollary to paragraph 1. If it is necessary to ensure that one's own civil defence personnel and objects are identifiable, it is also necessary to ensure that those of other Parties can be identified. (11)

    2654 It will be noted that this paragraph only deals with identification by means of the distinctive sign of civil defence, but not, as in Article 18 ' (Identification), ' paragraph 2, by distinctive signals. However, it is clear that it implies an identical obligation with respect to distinctive signals, if the Parties to the conflict agree to use such signals in accordance with the provision of paragraph 5. The fact that it is not mentioned here is probably because, in contrast with Article 18 ' (Identification), ' this article only allows the use of distinctive signals by agreement between the Parties: therefore adequate methods and procedures of identification may be laid down in the agreements themselves. (12)

    2655 However, it is precisely with regard to distinctive signals that it is essential to establish methods and procedures, given their technical character.

    2656 As regards visual identification, the emphasis should first of all be laid on visibility, and the provisions of this paragraph are based in this respect on Chapter II ' (The distinctive emblem) ' of Annex I. Moreover, the importance of informing the members of the armed forces of their obligations cannot be too often stressed. (13) It is all the greater in this context, as there is a new international sign of civil defence.

    Paragraph 3

    2657 This paragraph is based on paragraph 3 of Article 18 ' (Identification). ' (14) However, it merits two specific comments.

    [p.783] 2658 First, it only concerns ' civilian ' civil defence personnel. This is explained by the fact that an ' obligation ' to display the international distinctive sign of civil defence and to carry an identity card certifying their status ' rests ' at all times on members of the armed forces assigned to civil defence organizations. (15)

    2659 Secondly, the necessity of displaying the sign and carrying an identity card in occupied territories and areas where fighting is taking place, as well as the obligation only to wear the sign and carry the card during missions ' exclusively ' devoted to civil defence tasks, argue in favour of the exclusive and ' permanent ' -- or at least long-term -- assignment of such personnel to civil defence tasks, at any rate in such territories and areas, to avoid any confusion.

    Paragraph 4

    2660 Once the idea of granting special protection to civil defence personnel and objects is accepted, the need to identify them by means of a distinctive sign is evident, just as it was evident from the beginning with regard to medical personnel and objects.

    2661 During the Conference of Government Experts an ad hoc Group, set up to make proposals regarding a special sign for civil defence organizations, came in particular to the following conclusions:

    -- the sign should not lead to confusion with other emblems: thus this excluded the possibility of extending the use of the red cross and red crescent emblem; (16)
    -- it should be easily recognizable;
    -- it should not conflict with any religious beliefs. (17)

    2662 However, as this group did not propose an emblem, a meeting of experts was organized in Geneva with a view to defining an international distinctive sign of civil defence. The experts finally adopted two signs, (18) and an alternative was proposed in the 1973 draft consisting either of an "equilateral light blue triangle on a light orange background" or of "two or, in case of need, more vertical light blue stripes on a light orange background". (19) These proposals had been selected on grounds of their practical nature and visibility of the designs and colour. (20)

    2663 During the Conference an amendment was put forward proposing yet another sign: "two oblique red bands on a yellow background" (21)

    2664 This sign, which was also supported by the International Civil Defence Organization, was proposed particularly because of its resemblance to the [p.784] emblem with "oblique red bands on a white ground", laid down in Article 6 of Annex I to the fourth Convention, to mark hospital and safety zones and to meet "the concern not to increase the number of protective signs". (22)

    2665 The Technical Sub-Committee on Signs and Signals nevertheless declared its preference for a blue triangle on an orange background
    -- i.e., the first proposal in the 1973 draft -- though it deleted the adjective "light" from the colours orange and blue. (23)

    2666 Apart from a controversy regarding the respective visibility of the two signs which remained at issue, the argument of the similarity of the sign with that laid down for marking hospital and safety zones was also used against this sign, as some delegates considered that confusion between the two symbols might reduce the protection of such areas. (24)

    2667 In the end, the proposal contained in the amendment was rejected by a vote in Committee II in favour of the blue triangle on an orange background. (25)

    2668 In addition to the choice of sign, it should be noted that paragraph 4 refers to the ' international ' distinctive sign of civil defence. In fact, in contrast with the Red Cross or Red Crescent Societies which were created after the adoption of the emblem, civil defence organizations were set up well before the adoption of Protocol I, and in many countries had already adopted other emblems. This article therefore does not impose a new emblem on such organizations even though it permits them to adopt it also in time of peace. (26)

    2669 Finally, paragraph 4 specifies that the equilateral blue triangle on an orange ground can only be considered as the international distinctive sign of civil defence "when used for the protection of civil defence organizations, their personnel, buildings and ' matériel ' and for civilian shelters". This formula is based on that adopted for the definition of the distinctive red cross and red crescent emblem. (27) It is all the more understandable for the sign of civil defence as it seems difficult for some States to undertake that this sign -- as with the red cross or red crescent emblem -- will not be used for any other purposes in time of peace, particularly by organizations or companies which had adopted it previously (28)

    Paragraph 5

    2670 This paragraph lays down the possibility of the use of distinctive signals "for civil defence identification purposes". Despite this rather vague wording, there is [p.785] no doubt that such signals are intended to permit the identification of persons and objects entitled to the protection of the distinctive sign of civil defence. (29)

    2671 This paragraph is inspired by Article 18 ' (Identification), ' paragraph 5, which is concerned with the use of distinctive signals "to identify medical units and transports".

    2672 However, in contrast with that provision, it does not refer to a chapter of Annex I, and Chapter V of that Annex ' (Civil defence) ' does not broach the question of distinctive signals. Thus there are no pre-established rules for distinctive civil defence signals.

    2673 Consequently, it is quite logical that the use of such signals cannot follow from an unilateral decision: it must result from agreements between the Parties to the conflict. (30) Anyway, paragraph 5 only mentions this as a possibility -- "Parties to the conflict may agree" -- without imposing any obligation upon them, not even that of endeavouring to reach an agreement upon this matter.

    2674 Thus the use of distinctive signals for civil defence remains very uncertain from an international point of view. The fact that the Diplomatic Conference did not go further on this point is probably because, on the one hand, the usefulness of such signals is, after all, less obvious for civil defence than for the medical services, particularly medical transports, and on the other hand, because the special protection accorded civil defence is new and has not yet been proven.

    2675 Insofar as they wish to reach agreement on distinctive signals for civil defence, the Parties are therefore free to choose those which seem most appropriate to them, provided that these do not infringe the many rules that exist in this field. (31)

    2676 The commentary on the 1973 draft mentioned as an example flashing light signals and sirens. (32)

    2677 Chapter III ' (Distinctive signals) ' of Annex I, Article 5 ' (Optional use), ' paragraph 1, states that "the signals specified in this Chapter for exclusive use by medical units and transports shall not be used for any other purpose", in this way excluding their use as signals for civil defence purposes. However, this is "subject to the provisions of Article 6 ", and that article, which deals with "the light signal, consisting of a flashing blue light", does not, "in the absence of a special agreement between the Parties to the conflict" prohibit "the use of such signals for other vehicles or ships". (33) Thus a possibility is left open here for adopting signals for the identification of civil defence services.

    [p.786] Paragraph 6

    2678 This paragraph refers to Chapter V ' (Civil defence) ' of Annex I for the implementation of paragraphs 1 to 4 of the article under consideration here. Rightly, paragraph 5 is not mentioned, since Chapter V ' (Civil defence), ' as we have shown, does not deal with distinctive signals.

    2679 Chapter V contains an article giving precise specifications for the identity cards prescribed in paragraph 3 of the article under consideration here. (34) In another article it sets out rules on the international distinctive sign of civil defence, and lays down recommendations thereon. (35)

    2680 The reference to paragraphs 3 and 4 does not require any explanation since these paragraphs concern the subjects dealt with in Article 14 ' (Identity card) ' and Article 15 ' (International distinctive sign), ' respectively, of Annex I.

    2681 The reference to paragraphs 1 and 2 indicates that the Parties to the conflict in fulfilling the obligations laid down by these paragraphs regarding marking their civil defence services and identifying those of their adversary, have to take into account the technical specifications given in the above-mentioned articles of Annex I.

    Paragraph 7

    2682 The first Convention contains strict rules regarding the use of the distinctive emblem in peacetime. (36) In general only the Red Cross or Red Crescent Societies are entitled to use it in peacetime, (37) and its commercial use is prohibited.

    2683 It was only possible to follow the example of these rules to a limited extent. The first Red Cross, and later, Red Crescent Societies were created to facilitate the application of the Geneva Convention of 1864 and then that of 1906. On the other hand, civil defence organizations were created a long time before they were recognized by international humanitarian law, and there are no national "Blue Triangle Societies". Thus the relation between these organizations and the international distinctive sign of civil defence is not as close as that between the Red Cross or Red Crescent Societies and the emblem intended for the protection of the medical services.

    2684 Nevertheless, some wished this connection to be strengthened in the future, and to this end considered that civil defence organizations should be permitted -- if not encouraged -- to adopt this sign even in time of peace. This is what is [p.787] proposed in this paragraph, which was not included in the 1973 draft, and was the result of an amendment. (38)

    2685 However, as paragraph 8 will show, paragraph 7 does not prohibit, even implicitly, the use of the distinctive sign of civil defence for other purposes, when permitting its use in time of peace.

    2686 In fact, Committee II adopted in its report the following comment applicable to paragraphs 7 and 8: "It is understood that these paragraphs do not deal with other than protective uses of the distinctive sign of civil defence". (39)

    2687 This comment is not easy to understand in relation to paragraph 7, for in time of peace the term "protective use" is meaningless.

    2688 In fact, the comment indicates that, under paragraph 7, the personnel and objects concerned are those which in time of peace accomplish tasks which would give them the right to use that sign in time of armed conflict for the purpose of their protection.

    2689 Finally, the meaning of the expression "civil defence identification purposes" was explained above. (40)

    Paragraph 8

    2690 The comment adopted by Committee II in its report (41) is particularly relevant with regard to this paragraph. The supervision, prevention and repression required from the Contracting Parties and Parties to the conflict concern only "protective use" of the sign of civil defence. Thus that obligation is not extended directly to the use of the sign for commercial purposes. (42)

    2691 Moreover, an appropriate reminder was given of the existence of Article 38 ' (Recognized emblems), ' which prohibits the improper use of "emblems, signs or signals provided for by the Conventions or by this Protocol". (43)

    2692 Delegates who wished to prohibit any use of the distinctive sign of civil defence in time of peace other than by civil defence organizations with the agreement of authorities (44) therefore failed to convince the Conference.

    [p.788] 2693 And yet, is it possible that the Contracting Parties do not have any obligation in this field? We do not think so. First, they are mentioned separately from the Parties to the conflict, which clearly shows that some action is considered necessary even in time of peace. Secondly, and principally, the obligation on the one hand to ensure respect for the distinctive sign of civil defence in time of armed conflict and, on the other hand, to familiarize the population with it, certainly requires some restrictions, also in peacetime. Confusion in time of armed conflict would nullify the protective effect of the distinctive sign of civil defence and this cannot be avoided at such times if it is not also dealt with in time of peace.

    2694 Apart from this, the idea "to supervise the display" of the distinctive sign and "to prevent and repress any misuse thereof" is taken from Article 18 ' (Identification), ' paragraph 8, which in turn refers to the provisions of the Conventions and the Protocol. (45)

    2695 Finally, it should be noted that perfidious use of the international distinctive sign of civil defence causing death or serious injury to body or health is regarded as a grave breach of the Protocol. (46)

    Paragraph 9

    2696 As early as the first session of the Conference of Government Experts in 1971 it was pointed out that the possibility of extending the use of the emblem of the red cross or red crescent to civilian medical personnel authorized by the relevant Party to the conflict made it "possible to allow the emblem to be used also by the medical services of civil defence organizations". (47)

    2697 The 1973 draft took up this idea and expressed it unambiguously. (48)

    2698 The use of the word "also" in the text of paragraph 9 could lead to some hesitation. However, this is removed by the very clear comment adopted with regard to this paragraph by Committee II at the same time as its report:

    "Medical and religious personnel as well as medical units and transports of civil defence organizations are covered by Part II of Protocol I. Such personnel may be assisted or even replaced by other civil defence personnel who are able to perform medical functions, but who are primarily assigned to other civil defence tasks. [...] Medical functions may also be performed on a temporary basis by civil defence personnel in cases of emergency where the necessary formalities have not been fulfilled in order to enable them to use the red cross as a distinctive emblem. In such cases, it is desirable that [p.789] personnel and units performing medical tasks are protected by the international sign of civil defence. This idea is conveyed by the inclusion of the word also in this paragraph." (49)

    2699 It follows that, though some medical tasks may occasionally be performed under the distinctive sign of civil defence, medical personnel are in principle identified by the emblem of the red cross or the red crescent, as is actually indicated in the definition of such personnel which includes personnel "assigned to civil defence organizations". (50)

    2700 This distinction between medical personnel and materials of civil defence organizations and other personnel and objects belonging to the same organizations "does not, however, carry any implications with regard to organizational or command structure". (51)

    ' Y. S. '


    NOTES

    (1) [(1) p.780] Cf. in addition commentary Art. 18, supra, p. 221;

    (2) [(2) p.780] In this sense, cf. in particular O.R. XII, p. 390, CDDH/II/SR.92, para. 50;

    (3) [(3) p.781] On the general scope of the sentence, cf. commentary Art. 18, para. 1, supra, p. 225;

    (4) [(4) p.781] We refer to the commentary on these, supra, pp. 732-736;

    (5) [(5) p.781] Cf. Art. 62, para. 2;

    (6) [(6) p.781] Cf. CE/3b, pp. 155-156; CE 1971, Report, p. 89, paras. 505-506; CE 1972, ' Commentaries ', Part I, p. 145 (Art. 71, para. 3); CE 1972, Report, Vol. I, p. 169, para. 3.337; ' Commentary Drafts ', p. 76 (Art. 59, para. 7);

    (7) [(7) p.781] Cf. First Convention, Art. 41;

    (8) [(8) p.781] On this subject, cf. commentary Art. 61, sub-para. (b), supra, pp. 732-735;

    (9) [(9) p.781] On the meaning of the word "exclusively", cf. commentary Art. 61, sub-para. (b), supra, pp. 732-735;

    (10) [(10) p.782] On this subject, cf. commentary Art. 62, para. 3, supra, pp. 741-744, and Art. 63, para. 6, supra, pp. 757-758;

    (11) [(11) p.782] On the meaning of this paragraph, cf. in addition commentary Art. 18, para. 2, supra, p. 226;

    (12) [(12) p.782] On this subject, cf. commentary para. 5, infra, pp. 784-785;

    (13) [(13) p.782] On this subject, cf. commentary Art. 83, infra, p. 959;

    (14) [(14) p.782] Reference is made to the commentary thereon, supra, pp. 227-228;

    (15) [(15) p.783] Cf. Article 67, para. 1 c);

    (16) [(16) p.783] In this respect, cf. also CE 1972, ' Commentaries ', Part I, p. 145, where this position was supported by the argument that the emblem of the red cross and the red crescent must be reserved for clearly defined activities and that its use should not be too widely extended;

    (17) [(17) p.783] For more details, cf. ' CE 1972, Report ', Vol. II, p. 95, CE/COM III/OPC 16;

    (18) [(18) p.783] For further details on this subject, cf. ' Meeting of Experts on an International Distinctive Sign for Civil Defence Services, Report ', ICRC, Geneva, 1973 (particularly paras. 25-44);

    (19) [(19) p.783] Cf. draft Art. 59, para. 4;

    (20) [(20) p.783] Cf. O.R. XII, p. 143, CDDH /II/SR.67, para. 20;

    (21) [(21) p.783] Cf. O.R. III, p. 275, CDDH/II/427;

    (22) [(22) p.784] In this sense, cf. O.R. XII, p. 357, CDDH/II/SR.89, para. 10, and p. 61, CDDH/II/SR.60, para. 42;

    (23) [(23) p.784] Cf. O.R. XIII, p. 26, CDDH/49/Rev.1, Annex II, para. 26;

    (24) [(24) p.784] Cf. in particular O.R. XII, p. 356, CDDH/II/SR.89, para. 4. As regards the other aspects of this controversy, cf. ibid., pp. 355-362, paras. 1-40;

    (25) [(25) p.784] Cf. O.R. XII, p. 361, CDDH/II/SR.89, para. 39; cf. also p. 365, CDDH/II/SR.90, paras. 1-2, and pp. 390-391, CDDH/II/SR.92, paras. 54-55;

    (26) [(26) p.784] Cf. commentary para. 7, infra, pp. 786-787;

    (27) [(27) p.784] On this subject, cf. commentary Art. 8, sub-para. (1), supra, pp. 134-135;

    (28) [(28) p.784] On this subject, cf. commentary paras. 7 and 8, infra, pp. 786-788;

    (29) [(29) p.785] Thus, when it adopted its report Committee II adopted the following comment: "Civil defence identification means the identification of shelters for the civilian population and of civil defence personnel, buildings and matériel" (O.R. XIII, p. 375, CDDH/406/Rev. 1, para. 62);

    (30) [(30) p.785] This is contrary to Art. 59, para. 5, of the 1973 draft, as proposed by an amendment: cf. O.R. III, p. 272, CDDH/II/327, para. 5;

    (31) [(31) p.785] On this subject we refer to the commentary on Annex I, infra, p. 1137;

    (32) [(32) p.785] Cf. ' Commentary Drafts ', p. 75 (Art. 58. para. 5);

    (33) [(33) p.785] For more details on this subject, cf. commentary Articles 5 and 6, Annex I, infra, p. 1199 and p. 1205;

    (34) [(34) p.786] Art. 14, which on the one hand refers to Article 1 of Annex I, and provides a model in Figure 3 and, on the other hand, recommends that identity cards should mention whether civil defence personnel are authorized to bear light individual weapons;

    (35) [(35) p.786] For more details, cf. commentary Annex I, Arts. 14 and 15, infra, p. 1285 and p. 1289;

    (36) [(36) p.786] Cf. Articles 44, 53 and 54;

    (37) [(37) p.786] It is understood that objects protected by that emblem in time of armed conflict may already be marked in peacetime, and that National Societies may authorize in peacetime the use of the emblem by ambulances and by first aid posts reserved for free treatment;

    (38) [(38) p.787] Amendment CDDH/II/237 replaced successively by amendments CDDH/II/327 and CDDH/II/408: cf. O.R. III, pp. 271-275. This amendment also corresponds to the views expressed by the Technical Sub-Committee on Signs and Signals of Committee II: cf. O.R. XIII, p. 26, CDDH/49/Rev.1, Annex II, para. 27;

    (39) [(39) p.787] O.R. XIII, p. 375, CDDH/406/Rev.1, para. 62;

    (40) [(40) p.787] Cf. commentary paragraph 5, supra, p. 785 and note 29: the comment of Committee II mentioned in that note also applies for the present paragraph;

    (41) [(41) p.787] Cf. supra and note 39;

    (42) [(42) p.787] One delegate, incidentally, argued strongly against the obligation to prohibit the use of the civil defence sign for commercial purposes. In this connection he recalled the great difficulties encountered upon the introduction of a provision of this type on the red cross emblem in the First Geneva Convention of 1929, the reservations this led to, and the delays in the ratification of the 1949 Conventions resulting from objections to Article 53 of the First Convention by some commercial firms who had been using the red cross emblem for years: cf. O.R. XII, p. 145, CDDH/II/SR.67, paras. 36-39; cf. also ibid., p. 146, ibid., para. 41;

    (43) [(43) p.787] Cf. O.R. XII, p. 145, CDDH/II/SR.67, para. 38;

    (44) [(44) p.787] Cf. O.R. III, p. 273, CDDH/II/339, paras. 6-7, and O.R. XII, p. 73, CDDH/II/SR.61, para. 22;

    (45) [(45) p.788] On this subject, cf. commentary Art. 18, para. 8, supra, pp. 234-235;

    (46) [(46) p.788] Cf. Art. 85, para. 3(f). Cf. in addition the commentary on that paragraph, infra, pp. 998-999;

    (47) [(47) p.788] Cf. CE 1971 Report, p. 89, para. 504;

    (48) [(48) p.788] Cf. draft Art. 59, para. 8: "The identification of civil defence medical services is governed by Article 18". The comment on this paragraph is even more eloquent in this respect: "The experts expressed the unanimous opinion that it would be advisable for medical personnel -- whether they belong to the civil defence or were simply providing assistance -- to be identified by a special sign." (' Commentary Drafts ', p. 77);

    (49) [(49) p.789] Cf. O.R. XIII, p. 375, CDDH/406/Rev.1, para. 62. Moreover, it should be mentioned with regard to this word that in the French text the Drafting Committee replaced the word "aussi" by "également";

    (50) [(50) p.789] Cf. Art. 8, sub-para. (c)(i);

    (51) [(51) p.789] On this subject cf. the note added to the above-mentioned comment of Committee II, note 49: O.R. XIII, p. 375, CDDH/II/406/Rev.1, para. 62;