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Commentary - Recognized emblems
    [p.445] Article 38 -- Recognized emblems


    [p.446] General remarks

    1526 The very existence of a law of armed conflict implies the recognition of protective signs. In fact, the use of protective agreements affording protection for certain persons and certain objects, goes back to ancient times. Similarly, the necessities of war have always obliged the belligerents to deal with each other with some formality. Custom ultimately established the use of the white flag by those authorized by one of the Parties to enter into negotiation with the adversary, and the 1864 Geneva Convention introduced the sign of the red cross on a white ground as the distinctive sign of the protection accorded to the medical services of armies. In 1899 Article 23(f) of the Hague Regulations specifically recognized the flag of truce and "the distinctive badges of the Geneva Convention", i and prohibited their improper use. This prohibition covers equally the enemy national flag, military insignia, and the uniform. This text was adopted without modification in 1907.

    1527 In accordance with the aims and objectives of the Diplomatic Conference, these rules of the law of armed conflict were reaffirmed and developed in the Protocol, in two separate articles. The article under consideration here is concerned only with internationally recognized protective signs, which include to some extent the emblem of the United Nations.

    Paragraph 1 -- Prohibition of improper use or misuse

    1528 Paragraph 1 makes a distinction between protective emblems, signs or signals provided for or created by the Conventions or the Protocol (first sentence) and other internationally recognized protective emblems, signs or signals (second sentence).

    1529 Thus the general range of protective emblems, signs or signals referred to in this paragraph is presented in two categories.

    1. ' Principal emblems, signs or signals provided for or created by the Conventions land the Protocol (2) '

    [p.447]
    a) The distinctive sign of the red cross on a white ground, the red crescent or the red lion and sun on a white ground (3) (First Convention, Article 38 ; Protocol, Annex I, Chapter II, Article 3 -- ' Shape and nature, ' and Article 4 -- ' Use ').
    b) Distinctive signals (Protocol, Annex I, Chapter III).
    c) Sign marking works and installations containing dangerous forces (Protocol, Article 56 -- ' Protection of works and installations containing dangerous forces, ' paragraph 7; Annex I, Chapter VI, Article 16 -- ' International special sign ').
    d) International distinctive sign for civil defence (Protocol, Article 66 -- ' Identification, ' paragraph 4; Annex I, Chapter V, Article 15 -- ' International distinctive sign ').

    2. ' Emblems, signs or signals to which reference is made in the Protocol '

    a) Specific references:
    -- flag of truce (Protocol, Article 37 -- ' Prohibition of perfidy, ' paragraph 1, and Article 38 -- ' Recognized emblems '; Hague Regulations of 1907, Article 23n , Article 32 );
    -- protective emblem of cultural property (Protocol, Article 38 -- ' Recognized emblems, ' paragraph 1; Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 1954, Chapter V, Articles 16 and 17 );
    b) general reference: other internationally recognized protective emblems, signs or signals. (4)

    1530 This list clearly indicates the proliferation of recognized protective signs, particularly with the entry into force of the Protocol. Some wished this proliferation to be even more pronounced, although there are undeniable risks in taking this too far. An increase in the number of protective signs increases the risk of misuse and affects their credibility. In this field, as in any other, there is merit in moderation.

    ' First sentence -- Emblems, signs or signals provided for or created by the Conventions or by this protocol '

    1531 When the ICRC embarked upon the task of reaffirming and developing the laws and customs applicable in armed conflict, resulting in the adoption of the Protocol, it was essentially concerned with two problems in the field of protective signs: extending the use of the red cross emblem to civilian medical units -- up to that time it had been reserved for military medical services -- and strengthening [p.448] the provisions on controlling its use. In the ICRC's view, the most important point was to suppress the misuse of protective signs in times of armed conflict, (5) not only because of the perfidious nature of this misuse, but also because very important interests are at stake. Thus there was no question of revoking Article 23(f) of the Hague Regulations. On the contrary, the ICRC was concerned with reaffirming and reinforcing it by providing for measures for the repression of breaches, which forms the object of Article 85 -- ' Repression of breaches of this Protocol, ' paragraph 3(f).

    1532 This paragraph is concerned only with the prohibition itself, but unlike the first sentence of Article 37 ' (Prohibition of perfidy) ', it has an absolute character. Any improper use is prohibited, not merely perfidious use in the sense of Article 37 ' (Prohibition of perfidy), ' in other words, use that results in, or is intended to result in killing, injuring or capturing the adversary. This absolute character of the prohibition is significant for the article as a whole, and as such it unequivocally reinforces Article 37 ' (Prohibition of perfidy). '

    1533 As regards the wording, this is very close to the text of the Hague Regulations: "It is prohibited to make improper use". Nevertheless, the Conference did not adopt this formula which was already included in the draft presented by the ICRC to the Conference of Government Experts, without some hesitation. (6) A considerable number of delegations would have liked the term "improper" to be defined more precisely, (7) and the final draft of the ICRC provided for the prohibition of the use of recognized signs "in cases other than those provided for in international agreements establishing those signs and in the present Protocol". (8) However, the Conference finally adopted the Hague formulation with regard to the signs provided for in the Conventions and the Protocol, and a slightly different formula, as we shall see in the analysis of the second sentence, for other internationally recognized signs. On this subject the Rapporteur merely stated that although the basic principle underlying this article was readily accepted, the wording of the text turned out to be much more difficult than had been expected. (9)

    1534 Finally the Conference probably considered that unforeseeable situations can always occur, and that it is impractical to wish to foresee all possible contingencies. Thus the use of these signs or signals in situations or for purposes [p.449] differing from those for which they were specifically intended, is not necessarily always prohibited. In the field of protection, the spirit should support the letter of the law, perhaps more than anywhere else. It should always be possible to take into consideration exceptional situations with a view to the possible future establishment of a rule of customary law ' (opinio juris sive necessitatis). ' However, it goes without saying that the wording which prohibits the improper use of the distinctive sign and other signs, signals or emblems provided for by the Conventions or by this Protocol, should in the first place be understood strictly within the confines of the text. This point cannot be over-emphasized, and it is appropriate to remember once again that the perfidious use of the distinctive emblem of the red cross, the red crescent and the red lion and sun, or of other protective signs recognized by the Conventions or the Protocol, in violation of Article 37 ' (Prohibition of perfidy ') constitutes a grave breach (Article 85 -- ' Repression of breaches of this Protocol, ' paragraph 3(f)) if it is intentional and causes the death or serious injury to body or health of an adversary.

    1. ' The distinctive emblem of the red cross, the red crescent or red lion and sun '

    1535 The prohibition of the improper use of the distinctive emblem, whether this concerns the red cross or red crescent, may cover its representation, as well as the categories of persons and objects which may rely on it. This of course amounts to some extent to determining the conditions of its use (10)

    1536 The emblem is defined in Article 38 of the First Convention. It consists of a red cross, a red crescent or a red lion and sun, respectively, on a white ground. The shade of red is immaterial. The shape of the cross is not defined; it is a graphic sign ' par excellence. ' The cross is formed by the intersection of two straight lines. To demand a more specific description could too easily result in misuse, for example, the refusal to respect the emblem on the pretext that one or other of the cross bars was not the correct length or width, or even that it is forgery because of allegedly different dimensions than those provided for by the Convention. The simple emblem of the red cross, freely executed, can be improvised at any time for the purposes defined by the Conventions and the Protocols.

    1537 It has become customary to use the so-called "Greek cross", i.e. a cross with four bars of equal length, formed by two straight lines -- a vertical and horizontal line -- intersecting at right angles, without touching the borders of the white ground. The simplest and most frequently used version consists of five equal squares. The dimensions, shape and orientation of the crescent are not strictly defined either. In fact, certain Islamic countries have adopted a crescent with the points pointing towards the left, while others have opted for the converse. (11)

    [p.450] 1538 This emblem -- the red cross on a white ground -- to which the red crescent and the red lion and sun were added in due course, was chosen in 1863 for the protection of voluntary medical orderlies. Upon the conclusion of the First Geneva Convention of 1864 for the Amelioration of the Condition of the Wounded in Armies in the field, it became the only distinctive emblem for all military medical personnel, as well as for military hospitals and ambulances. As then, it is now the visible manifestation of the protection provided by the Convention for certain persons and certain objects. It is the emblem of the Convention, and therefore an emblem of protection. It allows its bearers to venture onto the battlefield to carry out their humanitarian task. It bears witness to the totally inoffensive character of the persons and objects that it designates, as well as to the impartial, useful and orderly nature of their humanitarian task, and in return, it grants them immunity. Thus it should be displayed in good faith and in accordance with the prescribed conditions, deployed widely wherever possible and permanently under a strict control of the conditions of its use.

    1539 However, the emblem is also used to indicate that a person or an object is connected with the institution of the Red Cross. This emblem is used in peacetime by National Societies and by millions of their members and volunteers as an indicatory sign, but this should not be confused in any way with the emblem as laid down in the Convention for the purpose of protection in time of armed conflict. It is up to the National Red Cross and Red Crescent Societies, and national legislation, to prescribe the rules for the use of the indicatory sign, and to suppress its misuse, in accordance with Articles 53 and 54 of the First Convention in particular. (12) It is of the utmost importance that the use of this indicatory sign, even if it is perfectly lawful, can in no case lead to confusion with its protective use, which is quite unrelated to it. In any situation of armed conflict the indicatory sign will always be of a small size (13), and it may not be displayed on an armlet or on rooftops. The prohibition of the improper use of the distinctive emblem, formulated in this paragraph, is addressed to governments, which have the duty to introduce all the necessary legislation on this matter with the cooperation of the National Societies. (14) If the sign of the Convention -- bearing in mind that under the Convention the emblem itself is virtually the source of the protection --, (15) is to provide an effective guarantee for those who venture onto the battlefield unarmed as "warrior without weapons" (16) for the sole purpose of aiding the wounded, sick and threatened or abandoned civilians, it is essential that there should be no possible confusion on this point.

    1540 The indispensable conditions for compliance with this paragraph in times of armed conflict are: the correct representation of the emblem; distinguishing [p.451] clearly and precisely between the protective emblem, which is for the sole use of those engaged on tasks provided for by the Conventions and the Protocol, and the indicatory emblem, and the disappearance of the signs displayed by persons, private enterprises and organizations which are not authorized to use it. (17) Article 44 of the First Convention still governs the use of the indicatory sign, as the Protocol has not brought any part of this subject within its scope, and therefore contains no new provisions at all on this point (Article 18 -- paragraph 7).

    1541 Under the provisions of the Conventions and the Protocol, the following are entitled to the benefits of the protective emblem:

    a) ' Fixed or mobile, permanent or temporary medical units of a party to the conflict or made available to a party to the conflict, viz.: '

    i) military or civilian units (18), including those belonging to civil defence, sickbays on board ship and civilian hospitals of a Party to the conflict (Article 8 -- ' Terminology, ' sub-paragraph (e)), Article 18 -- ' Identification ' and Article 66 -- ' Identification, ' paragraph 9); First Convention, Articles 19 , 28 , 41 and 42 ; Fourth Convention, Article 18 ;
    ii) military or civilian units made available to a Party to the conflict for humanitarian purposes by a neutral or other State that is not a Party to the conflict (Article 9 , Field of application, paragraph 2(a)); or
    iii) civilian units made available to a Party to the conflict for humanitarian purposes:
    - by a recognized and authorized aid society of a neutral or other State that is not a Party to the conflict (Article 9 -- Field of application, paragraph 2(b)). (19)
    - by an impartial international humanitarian organization (Article 9 -- ' Field of application ' -- paragraph 2(c)).

    b) ' Military or civilian, permanent or temporary medical transports, assigned exclusively to medical transportation and under the control of a competent authority of a Party to the conflict ' (Article 8 -- ' Terminology, ' sub-paragraph (g)), viz.:

    i) any medical transports by land (medical vehicles) (Article 8 -- ' Terminology, ' sub-paragraph (h)) which comply with these conditions, and similarly
    [p.452]
    ii) any medical transports by air (medical aircraft) (Article 8 -- ' Terminology, ' sub-paragraph (j)) including those which fall under letter a), ii) and iii) above; or
    iii) any medical transports by water, complying with the same conditions (medical ships and craft) (Article 8 -- 'Terminology, ' sub-paragraph (i)), whether these are:
    -- military hospital ships of a Party to the conflict in accordance with Article 22 of the Second Convention, even when they are transporting civilian wounded, sick or shipwrecked persons who do not belong to any of the categories mentioned in Article 13 of the Second Convention (Article 22 -- ' Hospital ships and coastal rescue craft, ' paragraph 1; Second Convention, Articles 22 , 43 and 44 );
    -- hospital ships of aid societies and private hospital ships originating from a Party to the conflict, under the same conditions as those mentioned above, and which comply, as far as possible, with the provisions of Article 43 , paragraph 2, of the Second Convention (Article 23 -- ' Other medical ships land craft ', paragraph 1; Second Convention, Articles 24 , 43 and 44 );
    -- hospital ships of aid societies and private hospital ships of neutral countries or those made available to a Party to the conflict by a neutral or other State that is not a Party to the conflict or by an impartial international humanitarian organization under the same conditions as those mentioned above (Article 22 -- ' Hospital ships and coastal rescue craft, ' paragraph 2; Second Convention, Articles 25 , 43 and 44 ). (20)
    -- lifeboats of hospital ships, lifeboats of coastal rescue stations and small craft belonging to the medical services under the same conditions as those mentioned above, even if the notification requirement of Article 27 of the Second Convention (Coastal rescue craft) has not been observed (Article 23 -- ' Other medical ships and craft, ' paragraph 1; Second Convention, Articles 27 , 43 and 44 );
    -- fixed coastal installations used by rescue craft (Second Convention, Articles 27 and 41 ).

    c) ' Medical personnel assigned exclusively, whether permanently or temporarily: '

    i) to medical units for medical purposes;
    ii) to the administration of medical units;
    iii) to the operation or administration of medical transports, i.e.:
    -- military or civilian medical personnel of a Party to a conflict, including the medical personnel mentioned in the First and Second Conventions, (21) and [p.453] the personnel assigned to civil defence organizations (22) (Article 8 -- ' Terminology, ' sub-paragraph (c));
    -- medical personnel of National Red Cross (Red Crescent, Red Lion and Sun) Societies and other national voluntary aid societies duly recognized and authorized by a Party to the conflict (23) (Article 8 -- ' Terminology, ' subparagraph (c) (ii));
    -- medical personnel of medical units or transports made available to a Party to the conflict for humanitarian purposes by a neutral or other State which is not a Party to that conflict (Article 9 -- ' Field of application, ' paragraph 2(a)); by a recognized and authorized aid society of such a State (Article 9 -- ' Field of application, ' paragraph 2(b)) (24); by an impartial international humanitarian organization (Article 9 -- ' Field of application, ' paragraph 2(c)).

    d) ' Religious personnel, i. e., military or civilian persons such as chaplains, who are exclusively engaged in the work of their ministry and are attached either permanently or temporarily to the armed forces of a Party to the conflict, to medical units of a party to the conflict, or are made available to a party to the conflict ' (Article 8 -- ' Terminology, ' sub-paragraph (d)), i.e.:

    i) religious personnel of the armed forces of a Party to the conflict, whether this is the army (First Convention, Article 24 ), airforce or navy (Second Convention, Article 37 ) (Article 8 -- ' Terminology, ' sub-paragraph (d) (i));
    ii) religious personnel attached to the medical units or medical transports of a Party to the conflict, including sick-bays on board ship (Second Convention, Article 28 ), hospital ships (Second Convention, Article 36 ), the merchant marine (Second Convention, Article 37 ) and civilian hospitals (Fourth Convention, Article 20 ) (Article 8 -- ' Terminology, ' sub-paragraph (d)(ii));
    iii) religious personnel attached to medical units or transports made available to a Party to the conflict under the conditions mentioned under letter c) above (Article 8 -- ' Terminology, ' sub-paragraph (d)(iii)); or
    iv) religious personnel of civil defence organizations of a Party to the conflict (Article 8 -- ' Terminology, ' sub-paragraph (d)(iv)).

    e) ' Medical equipment of medical units, medical transports, medical personnel and religious personnel ' (First Convention, Articles 33 , 34 and 39 ; Second Convention, Article 41 ) as defined under letters a)-d) above.

    [p.454]
    f) ' The international Red Cross organizations and their duly authorized personnel ' (First Convention, Article 44 , paragraph 3).

    g) ' Hospital zones and localities established in the territory of a Party to the conflict in order to protect the wounded and sick from the effects of war ' (First Convention, Article 23 , and Fourth Convention, Articles 14 and 15 , paragraph 1(a); Annexes I, Article 6 , and 6 , paragraph 2; Protocol, Article 8 -- ' Terminology, ' sub-paragraph (a)).

    1542 In the context of the list indicated above, which is taken directly from the texts of the Conventions and the Protocol, it is the responsibility of every High Contracting Party to draw up the list of persons, establishments, services and medical transports, whether military or civilian, which will be placed under its control in a time of armed conflict, and which will be allowed to display the protective emblem. The role that used to be reserved to the army by the Geneva Conventions is now assigned by the Protocol to the Parties to the conflict, as modern warfare leads to the amalgamation, or at least, the coordination between civilian and military medical services. Thus it is no longer possible to leave these matters to the army, and control has passed to the State itself. The role of the State in this area is indeed essential.

    1543 These limits, imposed by the Conventions and the Protocol, on the number and type of persons and objects entitled to bear the protective emblem can be exceeded in cases of emergency by recourse to the civilian population and to aid societies, such as the National Red Cross or Red Crescent Societies, which "shall be permitted, even on their own initiative, to collect and care for the wounded, sick and shipwrecked, even in invaded or occupied areas" (Article 17 -- ' Role of the civilian population and of aid societies, ' paragraph 1). (25) When something is necessary, one must find the means, it does not seem possible to refuse these civilians and these aid societies the protective emblem, while it is necessary for the task in hand. Thus they will take it upon themselves to bear it as they are acting on their own initiative. However, this does not mean that the High Contracting Party is released from its obligations, and it must ensure that all misuse is suppressed.

    2. ' Distinctive signals '

    1544 Medical units and transports which comply with the conditions listed under 1, a) and b) above, can also make use of the distinctive signals provided for in Chapter III of Annex I to the Protocol: Article 6 ' (Light signal), ' Article 7 ' (Radio signal), ' Article 8 ' (Electronic identification). ' These means of signalling are [p.455] exclusively (26) intended to permit the identification of medical units and transports (Article 8 -- ' Terminology, ' sub-paragraph (m)) and are normally used in conjunction with the protective emblem. However, in exceptional cases temporary medical aircraft, which cannot, either for lack of time or because of their characteristics, be marked with the distinctive emblem, may use only the distinctive signals (Article 18 -- ' Identification, ' paragraph 5, and Annex I, Chapter III, Article 5 -- ' Optional use, ' paragraph 2). (27)

    1545 The commentary on Annex I to the Protocol, entitled "Regulations concerning identification", provides all the necessary details and explanations on these points. (28)

    3. ' The sign for works and installations containing dangerous forces '

    1546 This sign was created by the Protocol, as well as the distinctive signals mentioned above, and also the civil defence sign which is dealt with in the following section. We refer to the commentary on Article 56 ' (Protection of works land installations containing dangerous forces) ', and to Chapter VI, Article 16 ' (International special sign) ' of Annex I to the Protocol, for all matters related to the definition of this sign and the conditions of its use. (29)

    4. ' The international distinctive sign of civil defence '

    1547 We refer to the commentary on the articles of the Protocol relating to civil defence (Articles 61 -67), in particular Article 66 ' (Identification), ' as well as to the commentary on Annex I to the Protocol, Chapter V, Article 15 ' (International distinctive sign). '

    [p.456]
    ' Second sentence -- Other internationally recognized protective emblems, signs or signals ' (30)

    1548 This provision covers all internationally recognized protective signs existing now and in the future, which are not covered by the first sentence. Thus it covers any signs which are not provided for by the Conventions or the Protocol, in particular recognized distress signals, including those established by certain international organizations. (31)

    1549 During armed conflict the prohibition is absolute, in the sense that any deliberate misuse is prohibited, and not only, for example, the deliberate misuse aimed at killing, injuring or capturing the adversary. However, it should be noted that the wording differs significantly from that of the first sentence, and consequently from that of Article 23(f) of the Hague Regulations, not only because of the explicit mention "in a armed conflict" but also because of the expression "deliberate misuse", which replaces the words "improper use" employed previously. The Rapporteur of Committee III explained this discrepancy by stating that

    "a number of representatives stated that their Governments could not, in this Protocol, accept an obligation to avoid or prevent improper use of an emblem provided for in a convention to which their Governments were not Parties. On the other hand, these Governments could agree that they would not themselves deliberately misuse such an emblem". (32)

    1550 This reservation concerns the distinctive sign of the Convention for the Protection of Cultural Property in the Event of Armed Conflict. A considerable [p.457] number of States are Parties to it, though some have still not adhered to it. (33) As this Convention restricts the prohibition of the use of the distinctive sign in cases other than those provided for, to situations of armed conflict, it was appropriate to include this restriction in the Protocol as well. As regards the term "deliberately", this expresses an intent (34) and refers to misuse that is made with full awareness of the motives, free of any pressure and voluntarily heedless of the rule. The prohibition of "deliberate misuse" is normally equivalent to that formulated in the Convention for the protection of cultural property. (35) Oddly enough, the expression "deliberate misuse" is also used in Article 18 ' (Identification), ' paragraph 8, where it refers to distinctive signs and signals, in the context of the prevention and suppression of their misuse. (36)

    1551 The use of the flag of truce is regulated in Article 23(f) of the Hague Regulations, which prohibits its improper use, while the parlementaire himself is dealt with in Articles 32 -34.Traditionally the flag of truce is white. It simply indicates the wish on the part of the person bearing it to communicate with his adversary. However, as the only object of this communication is often the negotiation of a surrender, it sometimes happens that small units or soldiers fly [p.458] the white flag individually for the sole purpose of demonstrating their decision to cease combat. In this case the gesture should be accompanied by unequivocal behaviour supporting this decision. Leaving this aside, the reason for which the white flag has been used can only be known when the communication that is desired has taken place.

    1552 Anyone who hoists the white flag must cease fire, and the act of sending an emissary should take place promptly after the flag is shown. The adversary, i.e., the Party which is requested to accept the non-belligerent contact, is not bound to cease fire, but may not direct it against the bearer of the flag and those accompanying him. The latter will advance unhurriedly towards the place which may be designated to them. The same applies to the return journey. To raise the white flag without a reason or for the sole purpose of deflecting attention away from a military operation in progress, or for other purposes conflicting with the law of armed conflict, such as threatening not to give quarter, constitutes a breach and may give rise to sanctions.

    1553 Any soldier may find himself in a situation of seeing a white flag and should therefore be instructed in the conduct he should follow in this event. (37)

    1554 The colour white is also used to provide protection, even when there is no other emblem, particularly to certain aircraft. (38)

    1555 Despite the different formula ("improper use" in the Hague Regulations, "deliberate misuse" in the Protocol), it does not seem that the authors of the Protocol intended to alter the conditions of use of the flag of truce, which are based on customary law.

    1556 The perfidious use of the flag of truce in the sense of Article 37 ' (Prohibition of perfidy), ' paragraph 1(a) is a grave breach (Article 85 -- ' Repression of breaches of this Protocol, ' paragraph 3(f)), if it is intentional and causes death or serious injury to body or health.

    1557 As regards the expression "other internationally recognized protected emblems, signs or signals", this refers to any other existing or future sign, whether it is universally accepted or not, like the protective emblem of cultural property. It should be noted in particular that Resolutions 17, 18 and 19, annexed to the Protocol, recognize the competence of the International Civil Aviation Organization (ICAO), the Inter-Governmental Maritime Consultative Organization (now the International Maritime Organization (IMO)), and that of the World Administrative Radio Conference (WARC) in the field of the identification of medical transports, particularly medical aircraft. These Resolutions request these organizations either to recognize the signals provided for in the Protocol, or to establish a combined system (Resolution 18, paragraph 1(c)), or to establish appropriate procedures for the use of medical aircraft (Resolution 17, paragraph 1(a)). (39) Reference has already been made to Article [p.459] 5 of the Hague Convention Respecting Bombardments by Naval forces in Time of War. (40)

    Paragraph 2 -- United Nations' emblem

    1558 This paragraph, which prohibits the use of the emblem of the United Nations, except as authorized by that organization, was introduced following an amendment submitted at the second session of the Conference of Government Experts (41) at the suggestion of the United Nations.

    1559 The use of the United Nations flag forms the object of a code issued for the first time by the Secretary General on 19 December 1947, and amended on 11 November 1952. (42) Article 6 of the Code specifies that the flag cannot be displayed during military operations, except when this has been specifically authorized by a competent organ of the United Nations.

    1560 The text of this paragraph does not state that the United Nations emblem is an internationally recognized protective emblem, but the provision relating to it is placed in the context of protective emblems, under the general title "Recognized emblems". In this respect we refer to what was said above regarding Article 37 ' (Prohibition of perfidy), ' paragraph 1(d). (43) The United Nations emblem only has a protective character to the extent that it can be assimilated to the emblems of neutral or other States not Parties to the conflict, but not when the United Nations intervenes in a conflict by sending combatants. Some seem to have regretted this restriction and would have preferred the protective character of the United Nations emblem to be always recognized when it is engaged in a peacekeeping operation.

    [p.460] Conclusion

    1561 The prohibition of the improper use of signs provided for or created by the Conventions and the Protocol should be interpreted first of all within the confines set by the text. Any improper use is prohibited, not only the perfidious use in the sense of Article 37 ' (Prohibition of perfidy). ' The same is true of other internationally recognized protective emblems, signs or signals.

    ' J. de P. '


    NOTES

    (1) [(1) p.446] It was at the Brussels Conference of 1874 that the words "as well as the distinctive badges of the Geneva Convention" were proposed for the first time. The original text prohibited misuse with the intent of deceiving the enemy, an expression which was subsequently considered to be superfluous and was omitted. The words "improper use", replacing the term "misuse" were introduced in 1899 (A. Mechelynck, ' La Convention de La Haye concernant les lois et coutumes de la guerre sur terre, ' Ghent, 1915, pp. 244, 246 and 248);

    (2) [(2) p.446] Other signs:
    a) oblique red bands on a white ground (Fourth Convention, Annex 1, Art. 6);
    b) markings for internment camps for prisoners of war and civilian detainees: PG, PW, IC or means to be agreed upon (Third Convention, Art. 23, para. 4; Fourth Convention, Art. 83, para. 3);
    c) non-defended localities (Protocol, Art. 59, para. 6) and demilitarized zones (Art. 60, para. 5): means to be agreed upon between the Parties;

    (3) [(3) p.447] Since July 1980 there has no longer been a Society entitled Red Lion and Sun, or any Party to the Conventions using this sign;

    (4) [(4) p.447] Art. 5 of Hague Convention IX Respecting Bombardment by Naval Forces in Time of War prescribed large, stiff rectangular panels, divided diagonally into two coloured triangular portions, the upper portion black and the lower portion white, to distinguish buildings used for religion, the arts, science or charitable purposes, historic monuments etc. on the understanding that they are not used at the same time for military purposes;

    (5) [(5) p.448] Despite Resolution, 5 annexed to the 1949 Conventions, States have devoted little attention to misuse in their implementing legislation, except with regard to the suppression of commercial misuse. This Resolution reads as follows: "whereas misuse has frequently been made of the Red Cross emblem, the Conference recommends that States take strict measures to ensure that the said emblem, as well as other emblems referred to in Article 38 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, is used only within the limits prescribed by the Geneva Conventions, in order to safeguard their authority and protect their high significance. "For the distinction between protective sign and indicatory signs, see infra, p. 450;

    (6) [(6) p.448] ' CE 1972, Report ', Vol. II, p. 5, ad Art. 32. This text referred both to the flag of truce and to the protective sign of the red cross (red crescent and red lion and sun), the protective sign for cultural property and other protective signs specified by international conventions;

    (7) [(7) p.448] Cf. amendment CE/COM III/C 73: "for purposes other than those specified in the Conventions establishing those signs and in the present Protocol", ibid., p. 64;

    (8) [(8) p.448] Art. 36, para. 1, of the Draft Protocol;

    (9) [(9) p.448] O.R. XV, p. 270, CDDH/215/Rev.1, para. 34;

    (10) [(10) p.449] These conditions are specified in Art. 18 for persons, services and installations authorized to display this emblem: Identification. For the commentary on this article, see p. 221;

    (11) [(11) p.449] For further details, see ' Commentary I, ' p. 297. Also see F. Bugnion, ' The Emblem of the Red Cross, A Brief History, ' ICRC, Geneva, 1977 and also Ph. Eberlin, ' Protective Signs, ' ICRC, Geneva, 1983;

    (12) [(12) p.450] On this subject, see J. Pictet, ' Le signe de la croix rouge et la répression des abus du signe de la croix rouge, ' ICRC, Geneva,1951;

    (13) [(13) p.450] First Convention, Art. 44, para. 2;

    (14) [(14) p.450] See the "Regulations on the Use of the Emblem of the Red Cross, of the Red Crescent and of the Red Lion and Sun by the National Societies", adopted by the XXth International Conference of the Red Cross, ' International Red Cross Handbook, ' Geneva, 1983, pp. 514-521;

    (15) [(15) p.450] See ' Commentary I, ' p. 306;

    (16) [(16) p.450] ' Warrior without Weapons ' is the title of a work published in 1947 by a former ICRC delegate, Dr. Marcel Junod, and republished a number of times since;

    (17) [(17) p.451] In this respect, see XXIIIrd International Conference of the Red Cross, Bucharest, 1977, Resolution XI, "Misuse of the Emblem of the Red Cross";

    (18) [(18) p.451] Art. 12 stipulates that the protection of civilian medical units is subject to one of the following conditions, that they: a) belong to one of the Parties to the conflict; b) are recognized and authorized by the competent authority of one of the Parties to the conflict; or c) are authorized in conformity with Art. 9, para. 2, of this Protocol, or Art. 27 of the First Convention;

    (19) [(19) p.451] In the terms of Art. 27 of the First Convention, this assistance is subject to the prior agreement of the government of the country to which this society belongs, and to the authorization of the Party to the conflict itself. The adverse Party of the State which accepts this assistance will be notified before any use is made of it, both by the neutral government and by the State receiving the assistance. The application of Article 27 of the First Convention is explicitly called for by the Protocol (Art. 9, para. 2, and Art. 12, para. 2(c); see supra, note 18);

    (20) [(20) p.452] In the terms of Art. 25 these hospital ships should be placed under the control of one of the Parties to the conflict, with the prior agreement of their own government and with the authorization of this Party, and in addition, the provisions of Art. 22 of the Convention, relating to notification, shall be complied with;

    (21) [(21) p.452] This concerns:
    a) permanent medical personnel of the army and of aid societies, including the administrative personnel (First Convention, Arts. 24, 26 and 40);
    b) temporary medical personnel of the army while they are carrying out medical duties (First Convention, Arts. 25 and 41);
    c) medical personnel of hospital ships and their crew (Second Convention, Arts. 36 and 42);
    d) medical personnel of naval forces and of the merchant marine (Second Convention, Arts. 37 and 42);
    e) personnel of civilian hospitals (Fourth Convention, Art. 20);

    (22) [(22) p.453] Art. 66, para. 9;

    (23) [(23) p.453] In fact, these societies do not seem to be very numerous; examples that could be given include the Order of St. John of Jerusalem and the Order of Malta. However, in the context of a conflict relating to Art. 1, para. 4, this might refer to a National Red Cross or Red Crescent Society in the process of being established; see also commentary Art. 81, infra, p. 935;

    (24) [(24) p.453] For the conditions, see supra, note 19;

    (25) [(25) p.454] Thus this is a spontaneous intervention of the civilian population, as distinct from an appeal which might be made by the State (Art. 12, para. 2). For example, Switzerland aims to supplement the civilian and military medical strength in time of war with the participation of the population which could reach 4% of all the inhabitants, i.e., about 250,000 people from a population of 6,000,000. This civilian assistance, organized by the State, is automatically placed under its control in the same way as civilian or military medical units or services, and therefore does not pose any problem regarding the right to wear the protective sign. They are assimilated either by being incorporated in the medical units and services or by analogy;

    (26) [(26) p.455] Nevertheless, in the absence of a special agreement between the Parties to the conflict reserving the use of flashing blue lights for the identification of medical vehicles, ships and craft, the use of these light signals for other vehicles or ships is not prohibited (Annex I, Chapter III, Art. 6, para. 3);

    (27) [(27) p.455] See also resolutions 17-19;

    (28) [(28) p.455] Oblique red bands on a white ground are provided for in Annex I of the Convention Relative to the Protection of Civilian Persons in Time of War, which contains a draft agreement relating to hospital and safety zones and localities, provided for in Art. 14 of this Convention. As long as these zones are reserved for the wounded and sick, they are deemed to be hospital zones which must be marked, as we have seen, by a red cross or a red crescent respectively, on a white ground. However, when access to these zones is open to persons who do not fall under the definition given in Art. 8, sub-para. (a), of the wounded and sick, it is no longer regarded as a hospital zone but as a safety zone. In the terms of Art. 14 of the Fourth Convention, this type of zone can shelter invalids, old people, children under fifteen years of age, expectant mothers and mothers of children under seven years of age, as well as the wounded and sick (see ' Commentary IV, ' pp. 125-126 and 627-629). This zone cannot be marked by a red cross, but will be marked by oblique red bands on a white ground, in pursuance of Art. 6 of the draft agreement contained in Annex 1 to the Fourth Convention (see ' Commentary IV, ' pp. 633-634). However, it should always be remembered that since the Protocol has extended the protection of the red cross sign to the civilian wounded and sick, the oblique red bands have lost a large degree of their significance;

    (29) [(29) p.455] See infra, p. 1295;

    (30) [(30) p.456] The signs for prisoner-of-war camps and civilian internment camps are given in Art. 23, para. 4, of the Third Convention and Art. 83, para. 3, of the Fourth Convention. During the Second World War prisoners of war took the initiative, either with or without the authorization of the camp commanders, to mark their places of internment by day by means of the letters PG or PW, so that they could be clearly recognized from the air. This initiative was approved by the Diplomatic Conference of 1949, which extended its use to internment camps for civilians by means of the letters IC. Only prisoner-of-war camps and civilian internment camps can be marked in this way. In either case the possibility of marking is subject to the reservation of military considerations (on this point, see ' Commentary III, ' p. 190, and ' Commentary IV, ' p. 383-384). For non-defended localities and demilitarized zones the Protocol has made provision for signs, though it has not specified them, since it merely stipulates that the Party which is in control of a locality which is the object of an agreement not to defend that area, or a demilitarized zone, must mark it so far as possible by such signs as may be agreed upon with the other Party; these signs must be displayed where they are clearly visible, especially on the perimeter, limits and highways of the zone (Art. 59, para. 6, and Art. 60, para. 5). For both the definition of non-defended localities and demilitarized zones, and for the conditions of use of any signs for them, we refer to the commentary on the provisions relating to these matters (see infra, pp. 699 and 707);

    (31) [(31) p.456] See commentary on Annex I, infra, p. 1137;

    (32) [(32) p.456] O.R. XV, p. 270, CDDH/215/Rev.1, para. 34;

    (33) [(33) p.457] The distinctive emblem of the Convention for the Protection of Cultural Property in the Event of Armed Conflict "shall take the form of a shield, pointed below, per saltire blue and white" (Art. 16). The sign is used alone or is repeated three times in a triangular formation (ibid.). If it is repeated three times, the sign can only be used for immovable cultural property under special protection (Art. 17, para. 1(a), and Art. 8), the transport of cultural property (Art. 17, para. 1(b) and Arts. 12 and 13) and for improvised refuges (Art. 17, para. 1(c)). The immunity of cultural property which enjoys special protection can only be withdrawn in exceptional cases of unavoidable military necessity (Art. 11, para. 2), which can only be determined by the officer commanding a force which is equivalent to or larger than a division (ibid.). During armed conflict it is prohibited to use the distinctive emblem in any cases other than those provided for, or to use a sign resembling the distinctive sign for any purpose whatsoever (Art. 17, para. 3). As regards the Treaty for the Protection of Artistic and Scientific Institutions and of Historic Monuments in Times of War and Peace (Roerich Pact), it provides for a sign consisting of a red circle encircling a triple sphere on a white ground. This Pact binds various States of North America and Latin America. See also the commentary on Art. 53 (which does not make the reservation of unavoidable military necessity) and Resolution 20 annexed to the Protocols;

    (34) [(34) p.457] This concept of intent, which gives the rule a personal and subjective character, is expressed not only in the definition of perfidy (Art. 37), but also in other places in the text of the Protocol in different forms, particularly in Arts. 41, para. 1 (provision prohibiting a person who is recognized or who, in the circumstances, should be recognized to be ' hors de combat, ' from being made the object of attack), in Art. 44. para. 3 (a combatant who misuses the absence of a distinguishing sign and benefits therefrom to take advantage of his adversary), and in Art. 55, para. 1 (means of warfare intended to cause damage to the natural environment); it is in Art. 85 (Repression of breaches) that this concept is most evident: acts committed "wilfully" or "in the knowledge" (paras. 3 and 4). In this case it implies a responsibility under criminal law;

    (35) [(35) p.457] See supra, note 33. The concept of the abuse of rights is controversial; a number of lawyers distinguish acts ' ad aemulationem, ' i.e., the exercise of the right with the sole purpose of causing harm, from acts consisting of exercising a right for purposes different from those for which the right was granted. This distinction does not seem to be of interest except from the point of view of the intent of the person who is guilty of the abuse; it is irrelevant for the result. In either case it is an unlawful act. Finally, some lawyers sometimes deny the validity of the whole concept of abuse of rights by claiming that a right exercised for purposes different from those for which it was granted, actually does not exist;

    (36) [(36) p.457] See commentary Art. 18, supra, pp. 234-235;

    (37) [(37) p.458] For further details, see M. Greenspan, op. cit., pp. 380-385;

    (38) [(38) p.458] See M. Greenspan, op. cit., p. 380; J.M. Spaight, ' Air Power and War Rights, ' London, 3rd edition, 1947, p. 134;

    (39) [(39) p.458] For the commentary on these provisions, see infra, p. 1137;

    (40) [(40) p.459] Supra, note 4. It is appropriate to recall at this point the declaration made by the representative of Israel at the final plenary meeting of the Conference: "with regard to Art. 36 [38] of draft additional Protocol 1, the delegation of Israel wishes to declare that it attaches special importance to the second sentence of paragraph 1. This sentence forbids the misuse of any other protective emblem which has been recognized by States or has been used with the knowledge of the other Party" (O.R. VI, p. 116, CDDH/SR.39, Annex). This declaration relates to the red shield of David, an emblem which is not recognized by the Conventions, but which is used by the military and civilian medical services of the State of Israel, and which, in that country, fulfils the role played by the red cross and the red crescent in other countries. In this way Israel claims that the prohibition of deliberately misusing internationally recognized protective emblems, signs or signals in armed conflicts also applies to the red shield of David;

    (41) [(41) p.459] ' CE 1972, Report ', Vol. II, p. 64, CE/COM III/C 73;

    (42) [(42) p.459] The United Nations Flag Code and Regulations, ST/SGB/132, United Nations, January 1967;

    (43) [(43) p.459] Supra, p. 439;