Traités, États parties et Commentaires
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Commentaire of 2016 
Article 54 : Prevention of misuse of the emblem
Text of the provision
The High Contracting Parties shall, if their legislation is not already adequate, take measures necessary for the prevention and repression, at all times, of the abuses referred to under Article 53.
Reservations or declarations
None
Contents

A. Introduction
3095  Article 54 places a positive obligation on States Parties to take the necessary measures to prevent and repress abuses of the distinctive emblems, their designations and other protected signs, as set out under Article 53. States are required to prevent and repress such abuses at all times. Consequently, the measures taken must address abuses both in time of peace and in time of armed conflict. Failure to regulate use of the emblems in peacetime may contribute to abuse in situations of armed conflict.[1]
3096  Article 54 requires States to take the necessary measures in the event that their legislation is not already adequate. This means that, apart from the administrative measures incumbent on the competent authorities, each country must enact legislation to prohibit and punish misuse of the emblems at all times.
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B. Historical background
3097  As early as 1864, proposals were made to include in the original Geneva Convention a provision on the punishment of persons using the brassard displaying the red cross emblem as a cover for spying.[2] A provision worded similarly to Article 54 was first included in the 1906 Geneva Convention.[3] The provision was later expanded upon in the 1929 Geneva Convention on the Wounded and Sick.[4] Neither of these earlier articles made it mandatory for States to adopt the measures necessary to prevent and repress abuses of the emblem: for example, under Article 28 of the 1929 Convention, the governments of the High Contracting Parties were simply required to ‘adopt or propose to their legislatures’ such measures.[5] By the time of the adoption of the 1949 Geneva Conventions, most domestic legislation was still considered to be inadequate with respect to this provision.[6]
3098  In 1949, the text of Article 28 was revised and incorporated into two separate provisions: Articles 53 and 54 of the First Convention.[7] Importantly, the language of Article 54 was strengthened so that the provision could no longer be interpreted as discretionary, as is evident from the use of the word ‘shall’. The obligation was reiterated with regard to all of the distinctive emblems of the Geneva Conventions in Article 6(1) of Additional Protocol III (entitled ‘Prevention and repression of misuse’).
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C. Discussion
3099  Under Article 54, States must introduce specific domestic legislation to regulate use of the distinctive emblems, their designations and other protected signs, where existing provisions are deemed inadequate.[8] Consequently, wherever domestic legislation is deemed to be inadequate, it must be amended.[9] To date, over 130 countries are recorded as having introduced one or more forms of domestic legislation to prevent and repress misuse of one or more of the distinctive emblems, their designations and other protected signs.[10]
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1. Form and placement of legislation
3100  Article 54 does not specify where in a State’s domestic legal framework such measures should be incorporated, nor the exact form they should take. In practice, these aspects will depend on the State’s particular legal system and national traditions.[11] In States with monist systems,[12] specific provisions to give effect to Article 54 will normally need to be introduced into the legislation, over and above the general ‘ratification law’ adopted as part of the treaty accession procedure.[13] In States with dualist systems, separate implementing legislation is usually required to give domestic effect to major treaty obligations, including those arising from the 1949 Geneva Conventions. This implementing legislation may include provisions on the regulation of the use of the distinctive emblems, their designations and other protected signs. Regardless of a State’s legal system, comprehensive implementation of Article 54 normally requires stand-alone legislation and/or the incorporation of relevant provisions into a variety of domestic laws and regulations, including one or more of the following:
– Geneva Conventions Act[14]
– Criminal Code[15]
– Code of Military Justice[16]
– Civil Code[17]
– Law on the use and protection of the distinctive emblems[18]
– Law establishing the National Red Cross or Red Crescent Society[19]
– Law on war crimes (including those implementing the 1998 ICC Statute)[20]
– Emergency Act[21]
– Trade Marks Act[22]
3101  Penalties for abuses of the distinctive emblems, their designations or other protected signs (whether by military personnel or by civilians) occurring in situations of armed conflict should normally be included in relevant legislation covering violations of the laws and customs of war. This would include, for example, a Geneva Conventions Act or other specific law addressing serious violations of humanitarian law, as well as the Code of Military Justice. Additionally, in practice such abuses may be dealt with in other pieces of legislation, including the Criminal Code (in particular for civil-law countries), law on the distinctive emblems, or the law establishing the National Red Cross or Red Crescent Society.
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2. Non-legislative measures
3102  The measures referred to in Article 54 may include those of a non-legislative nature. Perhaps chief among these is raising awareness of the significance of the distinctive emblems and of the consequent legal restrictions on their use. Such dissemination may take the form of, for example, military manuals and guidance issued by national trademark registries.[23] Another practical measure is the monitoring role that many National Red Cross and Red Crescent Societies (hereinafter ‘National Societies’) can play with respect to misuse of the distinctive emblems within their national territories. Further, private organizations may take administrative measures to help protect the emblems and designations.[24]
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3. Preventive and repressive measures
3103  Article 54 stipulates the need for measures to be aimed at both the prevention and repression of abuses. Prevention refers to measures designed to counteract misuse of the distinctive emblems and their designations before they occur, for example:
– The adoption of national legislation and regulations, including sufficiently strong sanctions, to deter misuse;
– Promoting awareness of the significance of the distinctive emblems and of the consequent legal restrictions on their use among the armed forces, the police forces, the concerned authorities, the civilian population, and other relevant groups such as health professionals, non-governmental organizations and commercial entities;
– The adoption in peacetime of measures to regulate use of the distinctive emblems in armed conflict.[25]
3104  Repressive measures are normally those designed to stop or punish misuse, such as unauthorized use of the distinctive emblems by third parties. They may include fines, forfeiture of goods connected with the offence, and/or imprisonment.[26] Many laws provide for a minimum and a maximum penalty without establishing the criteria for determining the level of severity of the penalty. In some cases, the amount of the fine or the length of imprisonment may vary depending on the circumstances in which the offence was committed, such as during armed conflict.[27] A higher penalty may also apply to repeat offenders.[28]
3105  Over the years, there has been a relatively small number of court actions regarding unauthorized use of the distinctive emblems, including in Austria, Canada, France, Germany, the Netherlands, Norway, Switzerland and the United Kingdom.[29] States are responsible for repressing violations regardless of whether the National Society has expressed concern to relevant public authorities or objected to an unlawful use of the emblem. In practice, it would seem that the most effective means of preventing unauthorized use is through enhanced public awareness and understanding of the meaning of the distinctive emblems. That said, for legislation to have an appropriate deterrent effect, it is essential that prosecutions are instituted, where necessary.
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4. Red crystal emblem
3106  The 2005 Additional Protocol III to the 1949 Geneva Conventions extends the obligation to prevent and repress misuse of the distinctive emblems, their designations and other protected signs to the red crystal emblem and designation.[30] To this end, States party to Additional Protocol III should make suitable amendments to their emblem protection legislation, and take any additional measures deemed necessary. Provisions protecting the red crystal emblem and designation have been introduced in a number of countries.[31]
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5. Assisting bodies
3107  There are various bodies that may assist States in adopting and/or implementing the measures necessary to give effect to Article 54. For example, a number of countries have established national committees on international humanitarian law.[32] While these are not legally required, they have proven effective in supporting States in relation to national implementation of humanitarian law treaties. Such support includes assistance in developing national measures to address misuse of the distinctive emblems, their designations and other signs protected under humanitarian law.
3108  The specific role of national committees will depend on their mandate and composition, as well as on governmental practices in the individual State. Committees comprising relevant government officials may have a role in drafting national legislation to incorporate humanitarian law, including provisions on emblem use, at the domestic level. Other committees may not have such a direct role, but may still fulfil a useful function by encouraging the government departments directly concerned to draw up and adopt the necessary legislation.[33]
3109  In addition, the ICRC runs an Advisory Service on International Humanitarian Law, created on the recommendation of the Intergovernmental Group of Experts for the Protection of War Victims, which was endorsed by the 26th International Conference of the Red Cross and Red Crescent in 1995. The purpose of the service is to assist States in enacting domestic legislation, through the provision of technical assistance and relevant publications, such as ratification kits and model laws. The Advisory Service has drafted a model law on protection of the emblem,[34] as well as a model Geneva Conventions Act.[35] As part of its mandate under the Statutes of the International Red Cross and Red Crescent Movement to work for the faithful application of international humanitarian law, the ICRC has a role in ensuring that the normative framework regulating the use and protection of the emblems is known, understood and properly applied, including in situations of armed conflict.
3110  Lastly, National Red Cross and Red Crescent Societies have a formal responsibility to cooperate with their governments to ensure respect for humanitarian law and to protect the distinctive emblems.[36] Many National Societies carry out monitoring and dissemination activities in this regard.[37] In addition, National Societies may assist in promoting the true meaning and special purpose of the emblem in their respective territories by ensuring that their own use is in conformity with the Geneva Conventions and other established rules.[38]
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D. National implementation of Article 54
3111  Article 54 makes it mandatory for States to take the measures necessary to prevent and repress, at all times, abuses of the distinctive emblems, their designations and other protected signs. Many States have taken steps to give effect to this obligation. These may be found in both domestic legislation and in non-legislative measures. There is no one form of legislative or practical measures used by States to give effect to Article 54. Rather, the nature of such measures will depend on the legal tradition of each State.
3112  Although there have been some prosecutions for unauthorized use, in practice the most effective means of deterring abuses is by promoting public awareness and understanding of the meaning of the distinctive emblems and of the need to restrict their use in order to preserve their protective value. For this to be effective, each State must take a continuing interest in ensuring that the integrity of the emblems is upheld. This may need to include prosecutions where these are required. Without such steadfast governmental interest, there is a real risk that, in practice, the emblems will lose their unique status and protective functions when they are required most.
3113  Different bodies, including National Societies, have a recognized role in working with State authorities to protect the emblems, their designations and other protected signs.
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Select bibliography
ICRC, Study on the Use of the Emblems: Operational and Commercial and Other Non-Operational Issues, ICRC, Geneva, 2011.
The Domestic Implementation of International Humanitarian Law: A Manual, ICRC, Geneva, 1st edition 2011, updated edition 2015.
Meyer, Michael A., ‘Protecting the emblems in peacetime: The experiences of the British Red Cross Society’, International Review of the Red Cross, Vol. 29, No. 272, October 1989, pp. 459–464.
Perruchoud, Richard, Les résolutions des Conférences internationales de la Croix-Rouge, Henry Dunant Institute, Geneva, 1979.
Sassòli, Marco, Bouvier, Antoine A. and Quintin, Anne, How Does Law Protect in War?, Vol. II, 3rd edition, ICRC, Geneva, 2011.
Segall, Anna, Punishing Violations of International Humanitarian Law at the National Level: A Guide for Common Law States – Drawing on the proceedings of a meeting of experts (Geneva, 11–13 November 1998), ICRC, Geneva, 2001.

1 - ICRC, Study on the Use of the Emblems, p. 281.
2 - Perruchoud, p. 210.
3 - Geneva Convention (1906), Article 27(1).
4 - Geneva Convention on the Wounded and Sick (1929), Article 28(1).
5 - Ibid.
6 - In his commentary on Article 54, Pictet noted that: ‘In most cases, however, national legislation is still most inadequate, even in regard to the 1929 stipulations.’ Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 393.
7 - See the commentary on Article 53, para. 3071.
8 - These are not the only national measures required under the 1949 Geneva Conventions and their Additional Protocols. For example, States must also ensure that their domestic legislation provides for the punishment of grave breaches of the Geneva Conventions and, where applicable, Additional Protocol I, as well as for the protection of the fundamental guarantees provided for in these instruments. Segall, p. 71.
9 - The provision is so broad that it necessarily encompasses the obligation to enact legislation dealing with challenges that emerge long after its adoption. For example, it applies to all potential misuse of the emblems in the digital sphere.
10 - As recorded in the ICRC’s National Implementation of IHL database, available at https://www.icrc.org/ihl-nat. Not all of these countries will have comprehensive legislation protecting all of the distinctive emblems, their designations and related signs. For example, some may only include protection of the specific emblem and designation used in their own territory.
11 - For example, the ICRC’s Advisory Service on International Humanitarian Law, when advising governments on the implementation of Article 54, takes an individual, State-by-State approach to such matters.
12 - In a monist system, treaties normally take direct effect in domestic law. States with civil-law traditions are usually monist, while common-law States are normally dualist. Some countries may use a mixture of both systems. In some States, treaties may be ‘self-executing’ and may not necessarily require implementing legislation; see Anthony Aust, Modern Treaty Law and Practice, 3rd edition, Cambridge University Press, 2013, pp. 163–167, and David Sloss, ‘Domestic Application of Treaties’, in Duncan B. Hollis (ed.), The Oxford Guide to Treaties, Oxford University Press, 2012, pp. 367–395, at 373–376.
13 - The ‘ratification law’ is normally adopted by parliament and published in the official gazette. Many provisions in international humanitarian law treaties require the adoption of more than what a typical ratification law contains (e.g. emblem protection measures, the establishment of a national information bureau, etc.). ICRC, The Domestic Implementation of International Humanitarian Law, p. 24 (a summary of provisions of the Geneva Conventions and their Additional Protocols requiring national implementation measures is set out at p. 60).
14 - States with common-law systems will often (but not always) have a Geneva Conventions Act that includes provisions on regulation of the distinctive emblems, their designations and other protected signs. It is estimated that approximately 28 countries have adopted a Geneva Conventions Act. These include, among others, Australia, Botswana, Canada, Ghana, India, Ireland, Malawi, Malaysia, New Zealand, Nigeria, Papua New Guinea, Singapore, the United Kingdom and Vanuatu. In Kenya and Uganda, where the legal systems of both countries are a mix of English common law and African customary law, the emblem is protected in laws other than a Geneva Conventions Act, although both countries also have such Acts.
15 - States with civil-law systems may include relevant provisions in their criminal/penal codes: e.g. Azerbaijan, Croatia, Denmark, Ethiopia, France, Georgia, Indonesia, Norway, Poland, the Russian Federation and Venezuela. This is less usual in countries with a common-law system, where criminal offences are often included in the relevant implementing legislation (e.g. the Geneva Conventions Act). One exception is the United States, which, while having a legal system based on common law, includes relevant offences in its Criminal Code (Geneva Distinctive Emblems Code, 1948, as amended by the Geneva Distinctive Emblems Protection Act, 2006).
16 - e.g. Algeria, France, Mali, Mexico, Niger, Spain, Switzerland and Tunisia.
17 - For example, Germany includes relevant provisions in its Civil Code (as well as in other legislation).
18 - States with stand-alone legislation protecting the distinctive emblems include Belarus, Bolivia, Guatemala, Montenegro, Nicaragua, the Philippines, Serbia and Tajikistan.
19 - Some countries include emblem provisions only in the law establishing or recognizing the National Red Cross or Red Crescent Society (sometimes referred to as the Red Cross or Red Crescent Act). Examples include Antigua and Barbuda, Belize, the People’s Republic of China, Haiti, Jordan, Malta, the Republic of Korea, Thailand and Zambia. Other countries, such as Austria, Lithuania and South Africa, have incorporated emblem provisions in the law establishing the National Society and in other instruments. While perhaps understandable, such practice may not be ideal. This is because National Red Cross and Red Crescent Societies are not primarily responsible for regulation of the distinctive emblems: States bear this responsibility in line with their obligations under humanitarian law.
20 - For example, Chile includes unauthorized use of the red cross emblem as an offence in its Law on Crimes against Humanity, Genocide and War Crimes, 2009, Article 34. This legislation is in addition to Chile’s Emblem Law, 1939, as amended.
21 - One such example is Brunei Darussalam’s National Society Incorporation Act, 1990.
22 - A number of countries, such as Canada, Japan and Malaysia, include relevant provisions under trademark legislation (whether primary or secondary legislation), as well as in other instruments (such as a Geneva Conventions Act or other law). Some others, such as Qatar, only include relevant provisions in trademark legislation. See also Article 13 of the ICRC’s Model Law on the Use of the Emblem, which commits national trademark offices to refuse the ‘registration of associations and trade names, and the filing of trademarks, commercial marks and industrial models and designs making use of the emblem of the red cross, the red crescent or the red crystal or the designation “red cross”, “red crescent” or “red crystal” in violation of the present law’.
23 - National Red Cross and Red Crescent Societies have a formally recognized role in supporting their respective governments in relation to dissemination. See section C.5.
24 - One example of relevant measures taken by a private (non-profit) organization are those instigated by the Internet Corporation for Assigned Names and Numbers (ICANN) to help prevent registration of the protected designations as new top- or second-level domain names. Such measures include a temporary reservation on registration of the designations as top-level domain names, as approved by ICANN’s Board on 20 June 2011. Components of the International Red Cross and Red Crescent Movement are at present working with ICANN’s various constituency bodies to encourage a confirmation of the permanent protection of the designations. Another example is the inclusion of items bearing the distinctive emblems and/or designations as part of the Prohibited Items Policy of the online marketplace eBay, applicable across a number of countries in Europe.
25 - This should include identification of the competent authority empowered to authorize use of the emblems in the event of an armed conflict. It could also include the measures to be taken by a National Red Cross or Red Crescent Society at the beginning of an armed conflict, to avoid any confusion with the indicative use of the emblem (Article 7 of the 1991 Emblem Regulations).
26 - In some countries, interim relief, such as injunctions, may be available. For example, the French Red Cross Society was able to take swift action in seeking such a measure regarding the misuse of the emblem in the James Bond film ‘The Living Daylights’ (see Meyer, p. 463). Civil servants may additionally risk disciplinary sanctions under some national laws; see e.g. Colombia, Emblem Law, 2004, Article 13.
27 - For example, Belgium has differing penalties for misuse of the distinctive emblems or their designations in peacetime and in armed conflict; see Belgium, Law on Protection of the Emblem, 1956, Articles 1 and 2. In armed conflict there may also be so-called perfidious use of a distinctive emblem. The First Convention did not identify such use as a ‘grave breach’ of the Convention. This was rectified by Article 85(3)(f) of Additional Protocol I and means that, for States party to that Protocol, the penalty for perfidious use is very likely to be more severe.
28 - See e.g. Guinea, Emblem Law, 1995, Article 11.
29 - It should be noted that, while some of these were criminal prosecutions, others took the form of civil court actions. For further information about relevant UK cases, see Meyer, pp. 459–464, and Sassòli/Bouvier/Quintin, p. 621. Other cases may be found in the ICRC’s National Implementation of IHL database, available at https://www.icrc.org/ihl-nat.
30 - Additional Protocol III, Article 6(1). It should be noted that, while Article 2(1) of the Protocol designated the additional emblem as the ‘third Protocol emblem’, the 29th International Conference of the Red Cross and Red Crescent decided that the additional emblem would be designated as the ‘red crystal’ (29th International Conference of the Red Cross and Red Crescent, Geneva, 2006, Res. 1, para. 2). This somewhat unusual procedure is an illustration of the fact that States attend the International Conference in their capacity as States party to the 1949 Geneva Conventions, and also demonstrates the close links between the International Conference and international humanitarian law. It would be helpful for States to enact legislation regulating use of both designations, i.e. ‘third Protocol emblem’ and ‘red crystal’.
31 - See e.g. Belgium, Canada, Cyprus, Lithuania, the Philippines, Singapore, the United Kingdom and the United States.
32 - The ICRC reported that, as at 30 September 2015, national committees for the implementation of international humanitarian law, or similar bodies, existed in 107 countries. A full list of such committees may be found at https://www.icrc.org/eng/resources/documents/misc/table-national-committees.htm. By region, at present Africa and Europe have the largest number of national committees (29 each), followed by the Americas (19).
33 - Third Universal Meeting of National Committees for the Implementation of International Humanitarian Law, Geneva, 27–29 October 2010, Responses of the United Kingdom Inter-departmental Committee on International Humanitarian Law to the Working Group Questions.
34 - Model Law on the Emblems: National Legislation on the Use and Protection of the Emblem of the Red Cross, Red Crescent and the Red Crystal. Designed primarily for use by States with civil-law systems, the model law may also be useful for those States with common-law systems which require additional provisions to those contained in their Geneva Conventions Acts.
35 - Model Law Geneva Conventions (Consolidation) Act: Legislation for Common Law States on the 1949 Geneva Conventions and their 1977 and 2005 Additional Protocols. Part IV of the Model Law deals with the emblem.
36 - Such activities form part of National Societies’ permanent status and role as auxiliaries to their respective public authorities in the humanitarian field. See Statutes of the International Red Cross and Red Crescent Movement (1986), Article 3(2)(3). See also Meyer, pp. 459–464, and ICRC, Study on the Use of the Emblems, pp. 290–293.
37 - Such monitoring and dissemination can include a range of activities, such as contacting third parties reported to have misused the emblem, designation or an imitation thereof, as and when required, and publishing and circulating materials on the meaning and purpose of the emblems. Some National Societies have also undertaken large-scale campaigns throughout their territory aimed at preventing such abuse: for example, in 2001 the Nepal Red Cross Society undertook such a campaign at a time of armed conflict within Nepal. The campaign was reportedly highly successful, with a majority of hospitals, clinics, pharmacies, ambulances and other former misusers reverting to other identifying signs or designs. For further information, see Leslie Leach, ‘Nepal Red Cross Society: Emblem Protection Campaign Review’, report produced by the Nepal Red Cross Society and the ICRC, February 2007.
38 - Use of the emblem by National Societies is governed by, in particular, Article 44 of the First Convention and by the 1991 Emblem Regulations. For further information on the use of the emblem by National Societies, see the commentary on Article 44.