ICRC databases on international humanitarian law
Photo
of
Previous photo
Next photo
CLOSE
x
ICRC
Skip navigation
Home
|
What's new
|
Contacts
Language
Select one
Francais
Search
International Committee of the Red Cross
Treaties and States parties to such Treaties
Who we are
Who we are - International Committee of the Red Cross
Mandate and mission
Structure
Finances
Working for the ICRC
The Movement
History
Funds and medals
Contacts
What we do
What we do - ICRC activities on behalf of people affected by war
Visiting detainees
Protecting civilians
Reuniting families
Ensuring economic security
Water and habitat
Health
Cooperation with National Societies
Building respect for IHL
Safeguarding health care
Other activities
Where we work
Where we work - the ICRC worldwide
Africa
Americas
Asia & Pacific
Europe & Central Asia
Middle East
War & Law
War & Law - the legal basis for our action
Treaties and customary law
Contemporary challenges for IHL
Protected persons
Conduct of hostilities
Weapons
Emblem
IHL in domestic law
International criminal jurisdiction
IHL and other legal regimes
Resource centre
Resource centre - Search
Publications and films
Photos
Maps
International review
Annual report
IHL databases
Library and research services
ICRC Archives
Events
Other sites
Gift shop
Video newsroom
Search
Treaties and Documents
1949 Conventions and Additional Protocols, and their Commentaries
By date
By topic
By State
Historical Treaties and Documents
By date
By topic
By State
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
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;