Traités, États parties et Commentaires
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Commentaire of 2016 
Article 39 : Use of the emblem
Text of the provision
Under the direction of the competent military authority, the emblem shall be displayed on the flags, armlets and on all equipment employed in the Medical Service.
Reservations or declarations
None
Contents

A. Introduction
2562  Article 39 sets out how the distinctive emblem is to be used by the medical service of the armed forces and on what items and equipment it should be displayed. These include, in particular, flags and armlets, such items being recognized as typical examples of the use of the emblem as a protective device.
2563  The placing of the distinctive emblem on the equipment, transports and personnel of the medical service of the armed forces is under the control of the competent military authority. National legislation regarding the distinctive emblem appears, in many cases, to reflect this principle, assigning the responsibility for controlling the use of the emblem to the Ministry of Defence.
2564  Although the emblem is referred to in the singular form, it is clear that Article 39 is intended to apply to the three distinctive emblems established under Article 38, that is, the red cross, the red crescent, and the red lion and sun.[1]
2565  It is important at this juncture to refer to the two distinct uses to which the red cross on a white ground, and the other distinctive emblems, may be put, namely the display of the emblem as a protective or as an indicative device.[2] In the first case, this being the one to which Article 39 relates, the emblem is used as the outward and visible sign of protection (and referred to in this instance as the protective sign). It has this meaning when displayed on buildings, persons and objects entitled to respect under the Geneva Conventions and their Additional Protocols.
2566  While it is generally accepted that the emblem should be displayed on all relevant items, so far as possible, such marking does not in itself confer protected status upon an object or person (nor is an object’s or a person’s protected status lost if the emblem is not displayed, although in practice it may be more difficult to ensure their safety). It is at the military commander’s discretion to determine when the emblem will not be displayed on protected objects, for example through the use of camouflage.
2567  In the second case, the sign is purely indicative, that is, it is used only to designate persons or objects connected with the International Red Cross and Red Crescent Movement. This does not, and is not intended to, imply the protection of the Conventions.[3]
2568  The emblem has its essential significance when used as a protective sign, and is referred to as the ‘emblem of the Convention’.[4]
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B. Discussion
1. Use of the emblem under the direction of the competent military authority
2569  The initial phrase of Article 39 stipulates that the emblem is displayed ‘[u]nder the direction of the competent military authority’.[5] This wording replaced the text agreed on in the 1929 Geneva Convention on the Wounded and Sick, which read: ‘with the permission of the competent military authority’.[6] The new wording adopted in 1949 lays emphasis on the fact that the military authorities, and, in practice, the military commander, must exercise effective control over the use of the emblem (including determining those situations in which it will or will not be displayed).
2570  National legislation regarding the distinctive emblem appears, in many cases, to reflect Article 39, by placing responsibility for controlling the use of the emblem under the Ministry of Defence.[7] Model national legislation on the use of the emblems,[8] produced by the ICRC and intended to assist States, where needed, in developing relevant domestic laws, also places use of the emblem by the medical service of the armed forces under the control of the Ministry of Defence.[9] While some national legislation also sets out the particular post within the relevant ministry where such authority is to be vested, many do not, presumably and at least in part, to allow for flexibility in designating the responsible position.
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2. Display of the emblem on flags and armlets
2571  In principle, a distinctive emblem should be displayed on the buildings, persons and objects protected by the Conventions. In practice, in order for enemy troops at a distance to be able to accord these persons, objects or buildings the respect required by the Conventions, they must be in a position to identify them for what they are.
2572  Persons, establishments, units and transports entitled to display the distinctive emblem under the present Convention include the following:
(a) medical and religious personnel of the armed forces (Article 24);
(b) personnel of the armed forces exclusively engaged in the administration of medical units and establishments (Article 24);
(c) auxiliary medical personnel, i.e. members of the armed forces specially trained for employment, in case of emergency, as hospital orderlies, nurses or auxiliary stretcher-bearers, while so employed (Article 25);
(d) the staff of National Red Cross and Red Crescent Societies and other recognized relief societies serving as auxiliaries to the medical services of the armed forces (Article 26);[10]
(e) personnel of National Societies or other relief societies of neutral countries, who lend their assistance to a belligerent and are duly authorized to do so (Article 27);
(f) fixed establishments and mobile medical units of the medical service of the armed forces (Article 19);
(g) transports used by the armed forces exclusively assigned to transporting the wounded and sick and/or medical equipment (Article 35);
(h) equipment used in the medical service (Article 39); and
(i) aircraft exclusively employed for the removal of the wounded and sick and for the transport of medical personnel and equipment (Article 36).
2573  The 1864 Geneva Convention referred to the use of a red cross on a white ground on a flag and on an armlet.[11] Subsequent revisions of the Convention have made repeated reference to these specific items belonging to the medical service of the armed forces. Armlets and flags marked by the distinctive emblem are recognized as typical examples of the use of the emblem as a protective device.[12]
2574  Flags displaying the distinctive emblem are generally used to identify military medical units and transports. Similarly, military medical personnel often use an armlet marked with a distinctive emblem as a means of identification. This includes the wearing of the armlet by military medical personnel when carrying out their regular duties away from the combat zone. A number of national laws governing the use of the distinctive emblem specify that armlets shall be issued by the relevant authority to those who are entitled to wear them.[13]
2575  As the means and methods of warfare have modernized, practical difficulties have been identified regarding the ability of the armed forces to distinguish accurately personnel and items displaying one of the distinctive emblems.[14] In order to address this important issue, since 1949 additional means of identification have been developed. A number of these are set out in the Regulations concerning identification annexed to Additional Protocol I. These include distinctive signals, such as the use of lights, radio and electronic identification. In addition, specific guidance has been given to enhance the visibility of the emblem used as a protective device.[15] Moreover, it is stipulated that medical personnel carrying out their duties on the battlefield ‘shall, as far as possible, wear headgear and clothing bearing the distinctive emblem’.[16]
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3. Display of the emblem on ‘all’ equipment
2576  Article 39 stipulates that the distinctive emblem shall be displayed on flags and on armlets, as well as ‘on all equipment employed in the Medical Service’. In practice, it is obvious that it may not be feasible to place the distinctive emblem on every item of equipment.[17] For example, the shape or size of some items, such as surgical instruments, may prevent such display. However, such articles will normally form an integral part of a larger unit, which will be marked.
2577  In principle, the emblem should be displayed prominently on all equipment where such display will help to distinguish relevant items from non-medical military equipment, and therefore to assist in confirming the protection of such equipment under international humanitarian law. Examples may include vehicles, medical equipment such as scanners, small and large containers, bags, rucksacks, kits and other items used to store and carry medical instruments and personnel.
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4. Display and non-display of the emblem
2578  It is generally accepted that the emblem should be displayed on all relevant items, so far as possible. However, it is important to recall that such marking does not in itself confer protected status upon an object or person: rather, it facilitates their identification as a protected object or person.[18] The use of camouflage is therefore permitted, although in practice this may affect the protection of such camouflaged objects from attack.[19]
2579  Since the adoption of the First Convention in 1949, in a minority of conflicts, a small number of States have chosen not to display the distinctive emblem on personnel and/or equipment of the military medical services.[20] Evidence suggests that such actions were carried out in contexts where the special meaning and status of the emblem were not observed.[21] This shows the discretion that may be exercised by the military commander in circumstances where the emblem’s neutrality may not be respected. Protected objects do not lose their protection under such circumstances, but their safety from attack cannot be guaranteed if they are unable to be identified as such by the adversary.[22]
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Select bibliography
Cauderay, Gérald C., ‘Visibility of the distinctive emblem on medical establishments, units, and transports’, International Review of the Red Cross, Vol. 30, No. 277, August 1990, pp. 295–321.
Eberlin, Philippe, ‘Modernization of protective markings and signalling’, International Review of the Red Cross, Vol. 19, No. 209, April 1979, pp. 59–83.
Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume 1: Rules, ICRC/Cambridge University Press, 2005, available at https://www.icrc.org/customary-ihl/eng/docs/v1.

1 - It also applies to the additional distinctive emblem, namely the red crystal emblem, established by Additional Protocol III (see Articles 1(2) and 2(3) thereof).
2 - For further discussion of the two distinct uses of the emblem, see the commentary on Article 44, sections C and D.
3 - National Red Cross and Red Crescent Societies may also be authorized to use the emblem as a protective device when carrying out the functions set out under Article 26 of the First Convention and with the consent of the military authority. The ‘international Red Cross organizations’ (in practice, the International Committee of the Red Cross (ICRC) and the International Federation of Red Cross and Red Crescent Societies) may use the distinctive emblem without reservation (that is, as either a protective or an indicative device). For further discussion, see the commentary on Article 44, section E.
4 - This term is helpful in signifying the essential connection between the red cross emblem and the 1949 Geneva Conventions as part of international treaty law. This is particularly important given the widespread misconception that the emblem ‘belongs’ to the International Red Cross and Red Crescent Movement.
5 - The French text of this article states: ‘Sous le contrôle de l’autorité militaire compétente’ (emphasis added).
6 - Geneva Convention on the Wounded and Sick (1929), Article 20.
7 - See e.g. Austria, Red Cross Protection Law, 2008, Article 6(1); Bosnia and Herzegovina, Emblem Law, 2002, Article 19; Burkina Faso, Emblem Law, 2003, Article 4; Central African Republic, Emblem Law, 2009, Article 7; Georgia, Emblem Law, 1997, Article 6; Mali, Emblem Law, 2009, Article 5; Philippines, Emblem Act, 2013, section 4; South Africa, Emblem Act, 2007, para. 7(c); Uruguay, Emblem Decree, 1992, Article 4; and Yemen, Emblem Law, 1999, Article 4. Common-law countries such as Australia and the United Kingdom also place the responsibility for regulation of the distinctive emblem under the Ministry of Defence. Still other countries specifically provide that identity cards and brassards (armlets) will be distributed and regulated by the minister of defence, e.g. Georgia, Emblem Law, 1997, Article 8; Kyrgyzstan, Emblem Law, 2000, Article 3; and Turkmenistan, Emblem Law, 2001, Article 10.
8 - See ICRC, Advisory Service on International Humanitarian Law, Model Law on the Emblems: National Legislation on the Use and Protection of the Emblem of the Red Cross, Red Crescent and Red Crystal, 15 July 2008.
9 - See ibid. Article 3(1). The model law also indicates that use of the emblem by civilian hospitals and other civilian medical units, where authorized in times of armed conflict, should be under the control of the Ministry of Health (which should, in practice, work together with the Ministry of Defence). Such matters will normally be governed by national administrative arrangements. There may be merit in centralizing authorization for emblem use under the Ministry of Defence.
10 - Since 1949, practice has confirmed that such National Societies also use the distinctive emblem on armlets in armed conflict (to aid identification), even when not operating in their auxiliary role. See fn. 12 below.
11 - See Geneva Convention (1864), Article 7.
12 - National Red Cross and Red Crescent Societies, which are permitted by their national authorities to use the emblem within certain limits, may not place the emblem as an indicative device, i.e. their logo, on armlets when it is used in peacetime (so as to avoid confusion with the use of such items displaying the emblem in armed conflict). See Emblem Regulations (1991), Article 4 and its commentary. See also Article 44 of the First Convention. The same is recommended for flags: the commentary on Article 4 of the 1991 Emblem Regulations recommends that, in peacetime, National Societies ‘refrain from placing the emblem on armlets, roofs or even flags’.
13 - Examples include national laws governing emblem use in Burkina Faso, Emblem Law, 2003, Article 5; Kyrgyzstan, Emblem Law, 2000, Article 3; Lithuania, Law on the Red Cross Society and Emblems, 2000, Article 15; and Tajikistan, Emblem Law, 2001, Article 7. See also fn. 7. See also Articles 40 and 41 of the First Convention and their commentaries.
14 - In 1979, Philippe Eberlin discussed ‘technical shortcomings in visual markings’, saying that ‘[t]he rule concerning the armlet which medical personnel have to wear on the left arm is quite inadequate to give them protection from all sides, as has become necessary today. A 10 cm red cross on an armlet cannot be distinguished at a distance of more than 50 metres.’ See Eberlin, p. 66.
15 - See e.g. Cauderay, and Dominique Loye, Commentary on Annex I (as amended 30 November 1993) to Additional Protocol I, ICRC, Geneva, 2002. For certain types of transports, see ICRC, Manual for the Use of Technical Means of Identification by Hospital Ships, Coastal Rescue Craft, Other Protected Craft and Medical Aircraft, 2nd edition, ICRC, Geneva, 1995.
16 - Additional Protocol I, Annex I, Regulations concerning identification (as amended in 1993), Article 5(4).
17 - The reference to ‘all’ stems from the original provision in the 1906 Geneva Convention. Statements from the preparatory work for the Geneva Diplomatic Conference of 1906 indicate that the meaning of ‘all’ was intentionally left open.
18 - Some States’ criminal codes require medical establishments to be properly marked with the distinctive emblem. However, this will be of importance only for criminal responsibility in the event that such units are attacked. See Henckaerts/Doswald-Beck, commentary on Rule 30, pp. 103–104. Article 1(2) of Annex I to Additional Protocol I in effect supports this fundamental point.
19 - United Kingdom, Manual of the Law of Armed Conflict, 2004, para. 7.25.
20 - Examples of such armed conflicts include that in Vietnam and, more recently, in Afghanistan.
21 - Practice also shows that, in some cases, the distinctive emblem is not displayed on certain vehicles and personnel because they are required for a dual purpose (that is, to carry out certain medical functions, but also to carry out ordinary military functions). In such cases, the item or individual no longer enjoys protected status under the Geneva Conventions (the removal of the emblem confirming this fact). See also the commentary on Article 22 of the First Convention.
22 - North Atlantic Treaty Organization (NATO) Standardization Agreements (STANAG) provide that medical units and transports may be camouflaged as a temporary measure at the discretion of the competent combat commander, to be exercised on the basis of a balance of due protection and operational need. Such agreements specify that these orders, which are to be made by a commander of brigade level or equivalent, are to be temporary and local in nature, and countermanded as soon as circumstances permit. See e.g. NATO Standardization Agreement 2931 (1998).