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Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
-- PREVENTION OF MISUSE
The clauses of the Convention which protect the emblem must be enforced in all States by national legislation, which will continue to be necessary until some kind of international control can be introduced. This is to be hoped for, but, in the present state of the world, seems a doubtful prospect.
Apart from the measures of an administrative nature which the competent authorities must take at all times, it is necessary for each country to enact legislation to prohibit and punish abuses, both collective and individual.
Offences against the protective sign in wartime come naturally under the penal legislation which deals with offences against the laws and customs of war. Other abuses will usually form the subject of special laws in application of the Geneva Conventions; being a part of public or administrative law, these will of course contain penal clauses.
As we have seen, Article 53
should have come in the Chapter on the distinctive emblem: Article 54, on the other hand, is in its proper place in the Chapter on the repression of abuses and infractions. It might even have been incorporated in Article 49
(which binds the Powers generally to take the measures necessary for the suppression of all acts contrary to the provisions of the Convention), and this course was suggested at the Diplomatic Conference of 1949. The point was, however, overlooked by the Committee dealing with the subject, and Article [p.393] 54 was accordingly drawn up as a separate Article to avoid re-opening discussion on Article 49
which had already been adopted.
Article 54 is mandatory, whereas the corresponding provision in 1929 (Article 28, paragraph 1
) was not. The earlier clause merely laid down that Governments of Contracting Parties, whose legislation was inadequate, were to adopt or propose to their legislatures the measures necessary to prevent abuse of the emblem. This wording, which gave legislatures the option of refusing the Government's "proposals" partly or ' in toto ', was rightly rejected. It is the Contracting Parties themselves -- by definition, sovereign States, whose will is expressed by parliamentary votes -- which, on ratifying an international Convention, accept all the obligations resulting from it. There is no reason why an exception should be made in so important a case as the protection of the red cross. This singular anomaly has fortunately now disappeared.
Wherever legislation is inadequate -- and this is so in the case of all countries, even if only as regards the newly-prescribed protection accorded to the red crescent and the red lion and sun -- it must be amended. The Convention sets no time limit. If at all possible, the necessary changes in the legislation of each country should already have been made by the time the Convention comes into force, that is, six months after ratification.
Apart from the improvements mentioned above, Article 53 follows the general lines of the corresponding provision of 1929. This is an advantage, as it will make it easier to introduce the necessary changes in the law.
In most cases, however, national legislation is still most inadequate, even in regard to the 1929 stipulations. It is therefore to be hoped that States, faced with the formal obligations laid upon them under the new text, will avail themselves of the opportunity afforded by its entry into force to enact really effective measures against abuses. For cases of misuse of the emblem and imitations of the emblem are still far too numerous.
There is a further point. The 1949 Conventions increased very considerably the authorized uses to which the emblem can be put. Previously reserved for certain clearly defined categories of persons and objects subject to strict military control, it now covers (with reduced safeguards) civilian hospitals, their staffs, and certain means of transport for sick civilians. The emblem is thus rendered more vulnerable than [p.394] before, and there is a vital need for its protection to be reinforced and the vigilance against misuse increased.
In writing of Article 53 we emphasized the various points upon which the internal legislation of States would have to be supplemented or made more specific. To make this important and complicated task easier for the authorities in the different countries, the International Committee of the Red Cross thought it advisable to repeat what it had done in 1932 in connection with the 1929 Convention, and draw up a model law upon which national legislation for the protection of the name and emblem of the Red Cross could be based. The text, which is only intended to serve as a general guide, is given below.
The purpose of the model law is not, however, to suppress abuses of the protective sign; for such abuses, being breaches of the laws of war (hostile acts committed under cover of the red cross, the placing of the red cross on buildings not protected by the Geneva Conventions, the wearing of the armlet by unauthorized persons in the presence of the enemy, etc.), are only possible in case of armed conflict. They are obviously much more serious than the offences covered by the model law and should be punished with greater severity. Penal legislation should therefore also make provision for the repression of the misuse of the emblem in time of war; it should in fact cover all breaches of the Geneva Conventions.
Finally, it is not sufficient merely to enact legislation, however adequate in itself. A close watch must be kept to ensure that abuses are discovered and those responsible prosecuted. It is hoped that in most cases illegal practices will end once a warning has been given. The public authorities responsible for enforcing the law will have a valuable ally here in the National Red Cross Societies. The emblem is in a large measure the heritage of these Societies, and they will do well to watch over it jealously. For it is only at the price of unremitting effort that the red cross symbol can be successfully defended and its profound significance preserved inviolate.
[p.395] MODEL LAW FOR THE PROTECTION OF THE RED CROSS
NAME AND EMBLEM (1)
To give effect to Articles 44
, 53 and 54
of the (First) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, to Articles 43
of the (Second) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, and to Articles 18
to 22 of the (Fourth) Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949, be it enacted as follows: (2)
The emblem of the red cross on a white ground and the words "red cross" or "Geneva Cross" shall be reserved at all times for the protection or indication of personnel and material protected by the First and Second Geneva Conventions of August 12, 1949 (3), that is to say establishments, units, personnel, material, vehicles, hospital ships and small craft of the Medical Service of the land, sea, and air forces, those of the ... (4) Red Cross and other relief societies duly recognized and officially authorized to aid the Medical Service of the armed forces, and chaplains. (5)
[p.396] The emblem may be used for no other purpose except as provided in Articles 2 to 5 hereunder.
With the express authorization of the State, (6) the red cross emblem may be used to identify the buildings and staff of officially recognized civilian hospitals, hospital zones and localities reserved for the wounded and sick, small craft employed by officially recognized lifeboat institutions for coastal rescue operations, and convoys or specially provided trains, vessels or aircraft conveying wounded and sick civilians, the infirm and maternity cases.
Apart from its work in aid of the military wounded and sick, the... Red Cross may at all times make use of the name and emblem of the red cross in any of its activities which are in conformity with the principles laid down by the International Red Cross Conferences, and in accordance with national legislation and its own Statutes. The conditions for the use of the emblem shall be such that it cannot, when so used, in time of war, be considered as conferring the protection of the Geneva Conventions; the emblem shall be comparatively small in size (7) and may not be placed on armlets or on the roofs of buildings.
The... Red Cross shall issue regulations governing the use by it of the name and emblem of the red cross; these regulations shall be subject to government approval.
The international Red Cross organizations and their duly authorized personnel shall be entitled to make use, at all times, of the name and emblem of the red cross.
[p.397] ARTICLE 5
The red cross emblem may, as an exceptional measure, with the express permission of the ... Red Cross and the Government, be employed in time of peace to identify vehicles used as ambulances, and to mark the position of aid stations exclusively assigned to the purpose of giving free treatment to injured or sick persons.
Any unauthorized person who wilfully makes use of the red cross emblem, or the words "red cross" or "Geneva cross", or any other sign or word constituting an imitation thereof, or liable to be confused therewith, whatever the object of such use, and irrespective of the date of adoption;
in particular anyone who causes such emblems or words to appear on signs, posters, advertisements, prospectuses, or commercial papers;
or who puts them on goods or wrappings, or sells, offers for sale or distributes goods so marked;
shall be liable to imprisonment or a fine. (8)
By reason of the confusion which may arise between the arms of Switzerland and the red cross sign formed, as a compliment to that country, by reversing the Federal colours, the use of the arms of the Swiss Confederation or of marks constituting an imitation thereof, whether as trade-marks or commercial marks, or as parts of such marks, or for a purpose contrary to commercial honesty, or as any other sign used to identify goods, or as a trading sign, or as a means of advertising in whatever form, or in circumstances capable of wounding Swiss national sentiment, shall be prohibited at all times, irrespective of the date of adoption.
Offenders shall be liable to a fine. (9)
[p.398] ARTICLE 8
Trade names, trade-marks and industrial designs or models, which do not conform to the requirements of the present law, shall be refused registration. (10)
Should a corporate body commit an offence under Articles 6 and 7, the shareholders, members, directors, authorized representatives, employees, and members of the board of management or of a controlling or liquidating body, who have committed the said offence shall be liable to a penalty.
The competent authority may order interim measures to be taken, including in particular the seizure of goods and wrappings bearing marks contrary to the present law.
The Court shall, even in case of acquittal, order the removal of unlawful signs and the destruction of tools and apparatus used exclusively for the affixing of such signs.
After the signs have been removed, the goods and wrappings which have been seized shall be returned to their owners.
The present law shall be applicable at all times, without prejudice to those provisions of the military penal code which take effect in wartime.
Articles 4 and 6, and 8 to 11, shall apply, by analogy, to the emblems of the red crescent on a white ground and the red lion and sun on a white ground, as well as to the words "red crescent" and "red lion and sun".
The rights of persons who have employed these emblems or words from a date prior to the entry into force of the present law shall, however, be reserved.
[p.399] ARTICLE 13
Proceedings shall be instituted automatically by the judicial authorities in all cases of infringement of the present law.
Furthermore, the... Red Cross shall be entitled to prosecute on its own account, before the competent Courts, persons responsible for infringements of the present law. (11)
The present law shall be effective as from the date of its promulgation.
As from the above date, the law of... shall cease to have effect.
The competent authority (12) shall be responsible for enforcing the present law.
* (1) [(1) p.395] Revised translation. The English wording of
the Articles reproduces the French legal terminology of
the original draft, and should be taken only as a general
(2) [(2) p.395] The Preamble may be longer than this, its form
depending upon the normal practice followed in each
country. It might, for example, draw attention to the fact
that the State concerned has ratified the Geneva
Conventions, and is thereby obliged to protect the red
(3) [(3) p.395] The Model Law is based on the 1949
Conventions, but it could also be used by States which are
only party to the Geneva Convention of 1929 or the Tenth
Hague Convention of 1907.
In countries which have no access to the sea, the
references to the Second Geneva Convention and to objects
protected by it may be omitted;
(4) [(4) p.395] The name of the country to be added wherever
(5) [(5) p.395] for the sake of uniformity this paragraph
closely follows paragraph 1 of Article 44 of the
Convention. It would, however, be more logical to reserve
the words "red cross" for the exclusive use of Red Cross
institutions (see above, page 329). Similarly, instead of
speaking of "protection or indication" it would be
preferable to include here the actual ideas which are in
fact intended, namely the ' wearing ' of the emblem by
persons and ' its use as a marking ' on buildings and
(6) [(1) p.396] The reference to the State may be replaced
throughout by an indication of the competent service. In
time of war, it would appear to be necessary for the
military authority to be in a position to control and
regulate all uses of the red cross sign;
(7) [(2) p.396] The Geneva Convention does not lay down the
maximum dimensions of the purely indicatory sign in terms
of actual measurement, but there is no reason why national
legislation should not do so. The maximum might, for
example, be one metre square in the case of a flag flown
over a building, twenty centimetres square for a flag on a
vehicle, and two centimetres square in the case of badges
worn by individuals;
(8) [(1) p.397] The minimum and maximum penalties may be
specified here. They must be in keeping with the penal
legislation of the State concerned; although less than in
the corresponding Article of the military penal code, they
should be sufficient to act as a deterrent;
(9) [(2) p.397] Minimum and maximum penalties may also be
(10) [(1) p.398] Registration offices, whose exact designation
will vary from country to country, might be expressly
named. The terminology employed may also vary;
(11) [(1) p.399] The wording may vary according to the country.
What is important is that the National Red Cross should be
entitled to lodge complaints and be party to the judicial
(12) [(2) p.399] Here indicate the competent authority;