Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 44 : Limitation in the use of the distinctive signs
Text of the provision
The distinguishing signs referred to in Article 43 can only be used, whether in time of peace or war, for indicating or protecting the ships therein mentioned, except as may be provided in any other international Convention or by agreement between all the Parties to the conflict concerned.
Reservations or declarations
None
Contents

A. Introduction
2769  Article 43 describes how vessels entitled to protection under the Convention should be marked. Article 44 clarifies that only those vessels referred to in Article 43 may be marked with such signs or signals and sets out two exceptions to that rule.
2770  This provision is related to Article 44 of the First Convention. That article sets down the general rule that, as a protective device, the distinctive emblems may only be used for the marking of medical units and establishments, personnel and material as laid down under the First Convention as well as under the other Geneva Conventions (and their Additional Protocols). Article 44 of the First Convention also sets out a number of exceptions to that rule, whereby the emblem may be used by certain additional entities, provided that specific conditions are met.[1]
2771  Both provisions can be simultaneously applicable, including at sea, with Article 44 of the Second Convention confirming, when it comes to the marking of the particular categories of vessels covered by Article 43, the rule set out in the first sentence of Article 44(1) of the First Convention. Likewise, the exceptions foreseen under Article 44 of the First Convention can be considered to apply to ships, vessels and craft of components of the International Red Cross and Red Crescent Movement. Thus, National Red Cross and Red Crescent Societies, in accordance with Article 44(2) of the First Convention, may display a logo (a small-sized indicative emblem) on vessels and craft in conformity with the conditions set out in that article, and the ICRC and the International Federation of Red Cross and Red Crescent Societies may use the emblem in their activities on water in accordance with Article 44(3) of the First Convention.[2] That use continues to be regulated by Article 44 of the First Convention.
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B. Historical background
2772  Article 6 of the 1907 Hague Convention (X) set down the following rule: ‘The distinguishing signs referred to in Article 5 can only be used, whether in time of peace or war, for protecting or indicating the ships therein mentioned.’[3] This rule was quite similar to a rule (Article 23) which had been included, the year before, in the 1906 Geneva Convention, applicable to land warfare.
2773  In its report, the Commission of Naval Experts convened by the ICRC in 1937 proposed omitting this article from the draft maritime convention, ‘on the grounds that the rules governing the use of the distinctive emblem were essentially a matter for the [First] Geneva Convention itself’.[4] Despite this, the Diplomatic Conference in 1949 decided to keep the rule, while adding the two exceptions.[5]
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C. Discussion
1. The rule
2774  The purpose of Article 44 is to make sure, as far as ships are concerned, that the ‘distinguishing signs referred to in Article 43’ can be used to mark only those vessels referred to in Article 43. In other words, apart from the two exceptions explicitly mentioned in Article 44, it is prohibited to use these signs to mark other categories of vessels, such as warships. In this connection, one must recall Article 38 of Additional Protocol I (prohibiting improper use of the emblem).[6]
2775  Thus, the only vessels which may use the distinguishing signs are: (i) the three categories of hospital ships designated in Articles 22, 24 and 25; (ii) coastal rescue craft covered by Article 27; (iii) lifeboats of hospital ships and coastal rescue craft (Article 43(3)); and (iv) all small craft used by the medical service (Article 43(3)).
2776  The restriction established by Article 44 only concerns ‘ships’ and remains without prejudice to Article 41 of the Second Convention (regulating the use of the emblem on ‘the flags, armlets and on all equipment employed in the Medical Service’).
2777  The ‘distinguishing signs referred to in Article 43’ are: (i) the white colour of all exterior surfaces; (ii) the red cross, red crescent or red crystal; (iii) a white flag with a red cross, red crescent or red crystal;[7] and (iv) any ‘modern methods available to facilitate the identification’ of these vessels, agreed upon in line with Article 43(8).
2778  Lastly, the limitation on the use of the specified signs and signals applies both ‘in time of peace or war’, in other words, at all times.[8]
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2. Exceptions
2779  Article 44 provides for two exceptions whereby ships or craft other than those mentioned in Article 43 may use the distinguishing signs set down in Article 43. Given that Article 44 of the First Convention contains the general regulation of the emblem, the exceptions in Article 44 of the Second Convention apply only to the use of the distinguishing signs regulated in Article 43, and only to ships and craft.
2780  First, the distinguishing signs may be used on ships or craft where that possibility has been provided for in an ‘international Convention’ other than the Second Convention. Article 21 of the Fourth Convention, which allows for the marking with the distinctive emblem of ‘specially provided vessels on sea, conveying wounded and sick civilians, the infirm and maternity cases’, is the sole example in the Geneva Conventions.
2781  Article 18(4) of Additional Protocol I stipulates that ‘[w]ith the consent of the competent authority, medical units and transports shall be marked by the distinctive emblem. The ships and craft referred to in Article 22 of this Protocol shall be marked in accordance with the provisions of the Second Convention.’ Article 22, for its part, extends the protection due to ships and craft covered by the Second Convention to ships and craft carrying wounded, sick and shipwrecked civilians. Similarly, Article 23(1) of Additional Protocol I, referring to ‘[m]edical ships and craft other than those referred to in Article 22 of th[e] Protocol and Article 38 of the Second Convention’, stipulates that ‘[s]ince th[e] protection can only be effective if they can be identified and recognized as medical ships or craft, such vessels should be marked with the distinctive emblem and as far as possible comply with the second paragraph of Article 43 of the Second Convention’.
2782  Outside international humanitarian law, as far as is known, no such provision exists in any other treaty.
2783  The second exception set down in Article 44 is when the possibility of other ships or craft being marked with the distinguishing signs has been provided for ‘by agreement between all the Parties to the conflict concerned’.[9] This will be a special agreement in the sense of Article 6, and will therefore need to comply with the conditions set down in that article. Through such agreement, the Parties may permit the use of the distinguishing signs referred to in Article 43, including the use of ‘the most modern methods available to facilitate the[ir] identification’, on certain specified ships or craft. The conditions for extending use of the distinguishing signs by other vessels mean, however, that the exception remains very limited in practice: all the Parties to the conflict must agree. Furthermore, the agreed use of the distinguishing signs must conform to the object and purpose of the Convention.
2784  It may be helpful, for example, for the Parties to agree upon the marking of a ship covered by Article 38 of the Second Convention, i.e. ‘ships chartered’ for the purpose of ‘transport[ing] equipment exclusively intended for the treatment of wounded and sick members of armed forces or for the prevention of disease’. Vessels covered by Article 38 are not referred to in Article 43,[10] but an interpretation of Article 23(1) of Additional Protocol I confirms the understanding that these are the types of vessels for which such an agreement may be appropriate.[11]
2785  In addition, in the context of the other Geneva Conventions, an agreement between the Parties to the conflict may be helpful in distinguishing ‘special means of transport’ covered by Article 75 of the Third Convention or by Article 110 of the Fourth Convention. Furthermore, it may be useful for the Parties to agree upon the method of marking fixed coastal installations covered by Article 27(2).[12]
2786  A special agreement may also come in useful for the marking of other vessels that are performing humanitarian functions but that are not covered by the Geneva Conventions. One such example would be a vessel granted safe conduct by agreement between the Parties to a conflict to perform a specific humanitarian function, such as the evacuation of civilians or the transport of food.[13]
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Select bibliography
See the select bibliography of the commentary on Article 43 of the Second Convention.

1 - For details, see the commentary on Article 44 of the First Convention.
2 - See also François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, p. 541, note 2.
3 - No such rule existed in the 1899 Hague Convention (III).
4 - Naval Expert Report of 1937, p. 52.
5 - During the preparatory work after the Second World War, the rule contained in Article 6 of the 1907 Hague Convention (X) had been forgotten; see Minutes of the Diplomatic Conference of Geneva of 1949, Commission I, 20th Session, pp. 2022, and 34th Session, pp. 5053, and Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 98.
6 - See also ICRC Study on Customary International Humanitarian Law (2005), Rule 59, and its commentary in Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, Cambridge University Press, 2005, p. 209: ‘Improper use refers to any use other than that for which the distinctive emblems were intended, namely the identification of medical and religious personnel, medical units and medical transports, as well as personnel and property of the components of the International Movement of the Red Cross and Red Crescent.’
7 - Regarding the use of the red crescent or red crystal, see Article 43(7) and section I of the commentary on Article 43.
8 - In a similar vein, international treaties on safety at sea prohibit the use of any signal that may be confused with a distress signal. See, for example, SOLAS Convention (1974), Chapter V, Regulation 35, and COLREG (1972), Annex IV, Distress Signals.
9 - For an example, see Doswald-Beck, p. 248 (relief vessel Vishwa Siddhi).
10 - See also the commentary on Article 38, para. 2562.
11 - Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 890.
12 - On this point, see the commentary on Article 43, section E.2.
13 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 47(c).