Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 42 : Identification of medical and religious personnel
Text of the provision*
(1) The personnel designated in Articles 36 and 37 shall wear, affixed to the left arm, a water-resistant armlet bearing the distinctive emblem, issued and stamped by the military authority.
(2) Such personnel, in addition to wearing the identity disc mentioned in Article 19, shall also carry a special identity card bearing the distinctive emblem. This card shall be water-resistant and of such size that it can be carried in the pocket. It shall be worded in the national language, shall mention at least the surname and first names, the date of birth, the rank and the service number of the bearer, and shall state in what capacity he is entitled to the protection of the present Convention. The card shall bear the photograph of the owner and also either his signature or his fingerprints or both. It shall be embossed with the stamp of the military authority.
(3) The identity card shall be uniform throughout the same armed forces and, as far as possible, of a similar type in the armed forces of the High Contracting Parties. The Parties to the conflict may be guided by the model which is annexed, by way of example, to the present Convention. They shall inform each other, at the outbreak of hostilities, of the model they are using. Identity cards should be made out, if possible, at least in duplicate, one copy being kept by the home country.
(4) In no circumstances may the said personnel be deprived of their insignia or identity cards nor of the right to wear the armlet. In case of loss they shall be entitled to receive duplicates of the cards and to have the insignia replaced.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2680  This article is parallel to Article 40 of the First Convention, as it represents the adaptation of that provision to conditions at sea.
2681  The measures set out in Article 42 of the Second Convention are designed to enable permanent medical and religious personnel of the armed forces at sea to be identified as such, including when they fall into enemy hands, so that they may benefit from the respect and protection due to them under the Conventions.
2682  Articles 36 and 37 specify which persons are entitled to wear the protective emblem for the purposes of the Second Convention. Article 42 elaborates on those articles by describing the means of identification (armlets and identity cards) and their necessary or ideal characteristics. The provision is detailed for a reason: strict control over who may wear the emblem is designed to ensure trust in the emblem and anyone wearing it so that it will be respected and its wearer will not be targeted during hostilities. When medical or religious personnel fall into enemy hands, proof of their status serves to distinguish them from prisoners of war, enabling them to benefit from the prescribed protection and treatment, including being returned to their own armed forces or retained in accordance with the retention regime.[1] Although identity cards are important for this purpose, the status of medical or religious personnel may also be established in the absence of such cards.
2683  For States party to it, Article 18 of Additional Protocol I extends the right to wear the emblem (and carry an identity card bearing the emblem) to permanent and temporary civilian medical and religious personnel as defined in the Protocol.[2] Article 20 of the Fourth Convention sets out the terms of use of the emblem and identity cards by civilian medical and hospital staff. Lastly, for States party to Additional Protocol II, Article 12 provides for the use of the emblem by medical and religious personnel and medical units in non-international armed conflicts.
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B. Historical background
2684  There was no provision in either the 1899 Hague Convention (III) or the 1907 Hague Convention (X) relating to identification for individuals.
2685  The current provision finds its origin in the 1937 Naval Expert Report, which included an article modelled on Article 21 of the 1929 Geneva Convention on the Wounded and Sick.[3] That draft was subsequently included in the draft conventions adopted by the 1948 International Conference of the Red Cross in Stockholm.[4] The text was harmonized with the parallel provision in the First Convention (Article 40) during the Diplomatic Conference of Geneva in 1949.[5]
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C. Paragraph 1: The armlet
1. Introduction
2686  The main purpose of the armlet or other items of clothing or headgear marked with the emblem is to make it easier for enemy armed forces to identify medical personnel in order to avoid attacking them. The use of the emblem by medical personnel as a protective device is therefore strictly controlled to ensure its full respect. The Parties to a conflict must never be given reason to doubt that the emblem is being used other than in accordance with the Conventions and their Additional Protocols. While it can be worn by medical personnel on hospital ships and on warships or any type of auxiliary vessel, it is perhaps most relevant on the latter two types of vessel.
2687  Importantly, the armlet does not in itself confer protection; it is merely an outward sign of a person’s protected status. It is, however, a means of facilitating identification. As a visible sign of protected status, the emblem is thus a vitally important means of protection. If not wearing the emblem, the person runs the risk of being mistakenly targeted, although this risk is greater for the battlefield than for a hospital ship. Nevertheless, with or without the armlet, medical and religious personnel may not be attacked as long as they act in accordance with their status, i.e. they do not commit acts harmful to the enemy.[6] From the moment medical or religious personnel have been identified as such, shortcomings in the means of identification cannot be used as a pretext for failing to respect them.
2688  The armlet – along with the identity card – also serves to identify personnel immune from capture on the basis of Article 36 and personnel entitled to the treatment prescribed by the retention regime on the basis of Article 37 when they fall into enemy hands.[7]
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2. Personnel entitled to wear the armlet
2689  All permanent medical and hospital personnel on hospital ships and their crews (i.e. those designated in Article 36 of the Second Convention) are entitled to wear the armlet.[8]
2690  Religious personnel may also wear the protective emblem. Given that a variety of faiths may be represented in the armed forces, and although the emblems are meant to be devoid of any religious significance, States may use their discretion in deciding whether to impose the wearing of the emblem on religious personnel.
2691  Article 42(1) states that medical personnel ‘shall wear’ an armlet bearing the emblem. Normally, use of the word ‘shall’ indicates an obligation. However, in the light of the object and purpose of the provision and of the Conventions, a more nuanced interpretation is called for. The aim of the armlet is to ensure that medical personnel are identifiable and not attacked during hostilities, enabling them to collect and care for the wounded and sick even in the midst of fighting. Logically, where there is reason to conclude that medical personnel will be better protected if they do not wear the emblem, the competent military authorities are free to so decide.[9] This might be the case, for example, in an area where there is a misperception that the red cross is a religious symbol, which may put medical personnel wearing the emblem at greater risk of attack, in violation of international humanitarian law. Similarly, if a Party to a conflict adopts an unlawful policy of intentionally attacking medical personnel out of a belief that it gives a military advantage, it may be better for medical personnel not to be so identified. It may be the case that on hospital ships, which may not be attacked, Parties do not see a need for medical personnel to wear an armlet.
2692  Some military manuals and national legislation nonetheless stipulate that medical and religious personnel of the armed forces must wear the armlet.[10] One commentator also holds this view.[11] The concern is that, if medical personnel are perceived by the opposing side to be removing the armlet in order to participate in hostilities from time to time, it could lead to a general lessening of respect for the emblem because the other side may think medical personnel are also carrying out ‘acts harmful to the enemy’.[12] Wearing the protective emblem can thus be seen to have a twofold effect: first, it clearly indicates who is protected, and second, it ensures that those who wear it act in strict compliance with their status, thereby contributing to their own and others’ continued protection. Accordingly, unless there is good reason to fear that the wearing of the armlet in a particular situation would diminish the protection owed to medical and religious personnel, the imperative language of the Convention should be respected.
2693  It should be noted that, under certain circumstances, medical units and medical transports may be camouflaged, as may medical personnel.[13]
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3. Characteristics of the armlet
2694  The armlet must bear the distinctive emblem, that is, the red cross or red crescent on a white ground.[14] States party to Additional Protocol III may also use the red crystal.[15]
2695  While the armed forces of some States use a white band that encircles the upper arm, others use a patch bearing a red cross or red crescent on a white background. The Convention does not require that the entire armlet be white, as long as one of the distinctive emblems is present and clearly identifiable on a white background. It is considered important not to be overly prescriptive about the size and colour of the armlet or the material on which it is affixed,[16] to avoid enemy forces claiming that an armlet does not meet certain specifications and therefore need not be respected.
2696  The armlet should be water-resistant to ensure visibility of the emblem even after exposure to the elements. The use of materials or substances that make the emblem more visible to enemy forces, whether through infra-red or thermal imaging or other technology, is also recommended.[17] Since such methods of identification may depend on the use of a particular technology by the enemy forces, it is important that the Parties inform one another of the method or materials in use or how they may best be visible. At the same time, failure to use special materials in no way affects the obligation of enemy armed forces to respect the emblem (and its wearer) as soon as they identify it.
2697  Article 42 further stipulates that the armlet is to be worn on the left arm, a detail that was meant to ensure that combatants knew exactly where to look for it. However, tests conducted in 1972 revealed that ‘[a]n armlet worn on the left arm is visible at a distance of 50 m only if clean and smooth and if the wearer is standing with his left side to the observer’.[18] Thus, wearing the emblem elsewhere on the body in addition to the armlet, such as on a bib, tabard or helmet, may increase visibility and enhance protection. The wearing of the emblem only on the right arm or elsewhere besides the left arm may not be used by the enemy as justification for attacking protected personnel on the basis that the means of identification is not in conformity with the Convention. Rather, taking steps to improve the visibility of the emblem, especially when it enhances protection, is desirable.
2698  The armlet must be issued and stamped by the military authority. Normally, this will be the competent military authority referred to in Article 41. In this light, the armlet remains an important means of identification of medical and religious personnel. Clearly, the use of the emblem must be controlled by an official military authority fully aware of its responsibility.
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4. Use by medical personnel of helmets, tabards or bibs, or flags bearing the emblem
2699  As mentioned above, tests have shown that the emblem on helmets and on bibs or tabards is visible at a greater distance than the emblem on an armlet.[19] In the midst of fighting, wearing the emblem elsewhere on the body may therefore be a useful means of facilitating identification. While these are not prescribed methods of identification, they are also not prohibited, and recourse to them in no way diminishes the protection due to the wearer. In 1972, one expert observed: ‘To be really useful, the emblem should be visible at first glance, as soon as its bearer comes into sight and whatever the distance and the mode of observation.’[20] In fact, the amended ‘Regulations concerning identification’, adopted as Annex I to Additional Protocol I, recommend that ‘[m]edical and religious personnel carrying out their duties in the battle area shall, as far as possible, wear headgear and clothing bearing the distinctive emblem’.[21] Nevertheless, the wearing of the emblem on an armlet persists as a method of identification of medical personnel for protective purposes. Conditions of visibility on ships and at sea will govern the decision whether the emblem should be worn in places in addition to the left arm.
2700  Medical personnel and orderlies have in the past also adopted the practice of carrying and waving a white flag bearing the emblem.[22] Again, although it is not a prescribed method of identification, it remains perfectly acceptable and is encouraged so long as those bearing the flag are entitled to display the protective emblem and act in accordance with that status.
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D. Paragraphs 2 and 3: The identity card
2701  Article 42(2) sets out the format and content of the identity cards to be carried by medical and religious personnel.[23] The provision is very specific and detailed so as to ensure that States adopt practices that are proven to be effective. This is especially important when medical or religious personnel fall into enemy hands, so that they may benefit from the treatment due to them: immunity from capture or the retention regime pursuant to Articles 36 and 37 respectively. In terms of physical characteristics, the card must bear the emblem and be water-resistant and pocket-sized. A water-resistant card is more durable and preserves its legibility if exposed to the elements. Specifications on the size of the card were added because it was found that if identity cards were too big, their owners were apt to keep them in their packs or elsewhere not on their persons.[24] The card must bear the owner’s photograph and signature or fingerprints, preferably both. It must also be embossed with the stamp of the military authority. A model identity card can be found in the Annex to the Second Convention.
2702  Article 42(3) stipulates that the identity card must be uniform throughout the same armed forces. Therefore, the identity cards of the personnel of a National Society or other officially recognized relief society of the State or of the personnel of the hospital ship of a private person – i.e. the personnel of hospital ships covered by Articles 22, 24 and 25 – must bear the same distinctive emblem.
2703  Since the adoption of the 1949 Geneva Conventions, there have been many technological developments in relation to identity documents, with the introduction of biometric passports and cards with computer chips able to store large quantities of information. However, ‘low-tech’ cards continue to serve a valuable purpose because they can be produced – and, more importantly, deciphered – at any time and in any place, without the need for sophisticated equipment.[25]
2704  The card must be written in the bearer’s national language. It was originally proposed that English or French be used in addition to the national language, but that requirement was dropped during the negotiations.[26] The military manual of one State suggests that, where appropriate, the identity card should also be in the local language of the region concerned.[27] Although not required by the Convention, such a measure is not prohibited and may indeed make the cards more effective.
2705  The particulars that must be included on the identity card are the bearer’s surname and first names, date of birth, rank and service number, as well as the capacity in which he or she is entitled to the protection of the Convention. Where the date of birth is unknown, the estimated age of the bearer at time of issue may be substituted.[28] Other particulars, such as blood type, have been suggested as appropriate for inclusion on the card.[29] Some States indeed do this.[30] Moreover, for medical personnel in particular, it may be wise to indicate the medical function for which they have been trained or their area of specialization, as this information may be pertinent in determining whether they may be retained when they fall into enemy hands.[31]
2706  Even if a State does not transmit to the other Party the model of the card being used, the identity card remains valid. The model of the card may also be communicated to a third party, such as a neutral State or an international organization, as the purpose of this requirement is simply to engender trust in the cards found on medical or religious personnel. This would enable authorities to verify a document against the model if ever the authenticity of a card is in doubt. Uniformity of cards across armed forces can further help to foster trust in the documents.
2707  The provision states that medical and religious personnel ‘shall’ carry a special identity card bearing the distinctive emblem. While possession of such a card may indeed be an important means for such personnel to prove their status if they fall into enemy hands, this requirement must not be interpreted in a way that disadvantages medical or religious personnel. That is, it must not be viewed as a sine qua non to prove their status.[32] Indeed, Article 42(4) anticipates that cards and insignia might be lost. The loss (or lack of possession) of a card alone cannot be equated with a loss of protected status. The solution prescribed by the Convention is rather that a duplicate be issued.
2708  Moreover, if the card fails in some way to meet the detailed requirements of Article 42, that alone would not render it invalid. What counts is whether the card and the information on it are sufficiently reliable to support a claim by medical or religious personnel in enemy hands that they are entitled to that status.
2709  The idea that a duplicate card be held in the records of the Power on which the medical personnel depend was discussed at length during the Diplomatic Conference.[33] The basis for the proposal was the concern that a Power be able to demonstrate convincingly that the persons it claims are its medical and religious personnel – and who are therefore entitled to the protection of the Second Convention – were listed as such before they fell into enemy hands.[34] In that case, a Party which comes in contact with medical or religious personnel would have no reason to doubt the authenticity of their claim to be respected and protected.
2710  The competent authorities must take steps during peacetime to prepare identity cards, armlets, and the identity discs required by Article 19, so that they can be issued without delay in the event of an armed conflict. Furthermore, when new medical and religious personnel are appointed during times of armed conflict, identity cards, armlets and discs must be swiftly issued to them and a list kept.
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E. Paragraph 4: Prohibition of confiscation; replacement of lost cards and insignia
2711  Medical personnel may keep their identity papers and wear the armlet in all circumstances, that is, even when retained by the adverse Party to assist their captured compatriots. In both world wars, medical personnel sometimes had their armlets and cards taken from them, which can be a way for the capturing State to attempt to evade its obligations.[35] Such practices are strictly forbidden by the Convention. In 2012, during the armed conflict between Sudan and South Sudan, in the context of land warfare, captured medical personnel reported that their identity cards had been taken away from them or lost; nevertheless, the absence of the identity documents did not prevent the medical personnel from being returned to their own armed forces.[36]
2712  The special insignia and cards of medical personnel can only be withdrawn by the military authorities of their own armed forces. Should the armlet be lost or destroyed, the owner must be issued with a new one. If the identity card is lost, the person is entitled to a duplicate card. This provision lays an obligation not only on the Power on which the personnel depend, but also on the capturing Power, which must do all it can to facilitate the transmission of new cards and armlets for captured enemy medical personnel. In the past, the ICRC has acted as an intermediary for the conveyance of these items.[37]
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Select bibliography
Bouvier, Antoine A., ‘The Use of the Emblem’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 855–886.
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.
de Mulinen, Frédéric, ‘Signalling and Identification of Medical Personnel and Material’, International Review of the Red Cross, Vol. 12, No. 138, September 1972, pp. 479–494.
Kleffner, Jann, K. ‘Protection of the Wounded, Sick, and Shipwrecked’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 321–357.
Loye, Dominique, Commentary on Annex I (as amended 30 November 1993) to Additional Protocol I, ICRC, Geneva, 2002.

1 - Pursuant to Article 36, religious, medical and hospital personnel of hospital ships and their crews may not be captured during the time they are in the service of a hospital ship. For details, see the commentary on Article 36, section C.2.c. Pursuant to Article 37, religious, medical and hospital personnel of other ships may be retained under certain circumstances. For details, see the commentary on Article 37, sections E and F.
2 - See Additional Protocol I, Articles 8 and 18(3). Article 18(3) applies in particular in occupied territories or areas where hostilities are taking place.
3 - Naval Expert Report of 1937, draft article 23, pp. 48–49.
4 - Draft Conventions adopted by the 1948 Stockholm Conference, draft article 39, pp. 44–45.
5 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 116, 142 and 205.
6 - On the notion of acts harmful to the enemy, see the commentary on Article 36, section C.2.e.
7 - For details on the retention regime, see the commentary on Article 37, sections E and F .
8 - For information on the personnel of National Red Cross and Red Crescent Societies permitted to wear the emblem, see the commentary on Article 40 of the First Convention. Auxiliary (temporary) medical personnel may be authorized to wear an armlet bearing the emblem in miniature when they are exclusively engaged in medical activities. See Article 41 of the First Convention and its commentary, in particular, section C. Article 18 of Additional Protocol I, however, does not stipulate a difference in the size of the emblem.
9 - The United Kingdom’s Manual of the Law of Armed Conflict, 2004, for example, while stipulating a general duty for personnel to wear the armlet in para. 7.26, also provides in para. 7.25: ‘Whilst medical units, personnel, and transport are normally marked with the protective emblem, it is not mandatory to do so. The parties to a conflict are exhorted to “endeavour to ensure” that they are marked.’ This implies that the United Kingdom considers that Additional Protocol I has changed the rule in Article 40, such that it is no longer mandatory for personnel to wear the emblem. See also United States, Army Uniforms and Insignia, 2005, sections 28–29, p. 254, which states that ‘[m]edical personnel wear the brassard, subject to the discretion of a competent military authority’ (emphasis added). Australia’s Manual of the Law of Armed Conflict, 2006, para. 9.74, states: ‘In the most extreme circumstances, for example where an enemy was unlawfully targeting medical personnel, a military commander may order military personnel to not wear their brassard. The military commander may order the medical personnel to reinstate the brassard without jeopardising their special protection.’ See, further, Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, 2nd edition, Cambridge University Press, 2016, p. 149. State practice observed by the ICRC furthermore confirms this interpretation of ‘shall wear’ in this context. But see United States, US Court of Appeals for the DC Circuit, Al Warafi case, Appeal, 2013. See also the commentary on Article 39 of the First Convention, section B.4.
10 - See e.g. Azerbaijan, Emblem Law, 2001, Article 6 (‘shall wear’); Canada, LOAC Manual, 2001, para. 915.1 (‘are required to wear’); Georgia, Emblem Law, 1997, Article 7 (‘doivent porter’, certified ICRC translation); and Philippines, Emblem Act, 2013, section 4 (‘shall wear’). Article 5 of the ICRC’s Model Law on the Emblems states: ‘Such personnel shall wear armlets and carry identity cards’ (emphasis added).
11 - Kleffner, p. 352.
12 - This concern was raised in relation to permitting auxiliary or temporary medical personnel to wear an armlet while carrying out their duties. The paramount concern is to preserve respect for the emblem and those wearing it by limiting the possibility that an enemy will consider that combatant forces are inappropriately using the protective emblem to provide cover from attack. Minutes of the Diplomatic Conference of Geneva of 1949, pp. 20–22. There is obviously less cause for concern in this regard when it comes to medical personnel on hospital ships.
13 - See e.g. Netherlands, Military Handbook, 2003, p. 7-44, and United Kingdom, Manual of the Law of Armed Conflict, 2004, para. 7.25. See also the commentaries on Articles 39 and 42 of the First Convention, sections B.4 and F, respectively.
14 - Article 38 of the First Convention (the red lion and sun also specified in the article is no longer in use). Additional Protocol III provides for one more distinctive emblem, ‘Third Protocol emblem’, known as the red crystal. The red cross and red crescent are the two most commonly used emblems.
15 - Israel, which is the only State to have adopted the red crystal as its emblem, however, ‘directs its uniformed medical personnel to not wear any identifying protective sign in combat [situations]’; see Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, Cambridge University Press, 2nd edition, 2016, p. 149.
16 - There is no prescribed method for attaching the emblem to a uniform.
17 - Additional Protocol I, Annex I, Regulations concerning identification (as amended 30 November 1993).
18 - de Mulinen, p. 483.
19 - Cauderay, pp. 305–308.
20 - de Mulinen, p. 483.
21 - Additional Protocol I, Annex I, Regulations concerning identification (amended 30 November 1993), Article 5(4).
22 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 312.
23 - Medical personnel of National Red Cross and Red Crescent Societies attached to the armed forces must also be issued with an identity card. If necessary, the National Society should remind the State authorities of this obligation. See Emblem Regulations (1991), Article 9(2) and its commentary.
24 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 314.
25 - Loye, para. 92.
26 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 116. The reasons for abandoning this requirement are not given in the preparatory work.
27 - Canada, LOAC Manual, 2001, p. 4B-1. Article 2(1)(c) of the Regulations concerning identification (as amended on 30 November 2003) also indicates that the identity cards of permanent civilian medical personnel should be worded ‘in the local language of the region concerned’. This can include a local language other than the national language of a State, or a predominant language in the area where the conflict is taking place or forces are deployed.
28 - This possibility is also recommended in Article 2(1)(d) of the Regulations concerning identification (as amended on 30 November 2003).
29 - At the 1949 Diplomatic Conference, the delegate of Portugal recommended including this information on the card; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 93. (Article 40 of the First Convention and Article 42 of the Second Convention were considered together at the Diplomatic Conference. See e.g. ibid. pp. 116–118. Article 2(1)(i) of the Regulations concerning identification (as amended on 30 November 2003) also recommends its inclusion on the identity cards of permanent civilian medical personnel.
30 - The United States is one example; see Department of Defense Form DD1934, Geneva Conventions Identity Card for Medical and Religious Personnel Who Serve in or Accompany the Armed Forces.
31 - The inclusion of this requirement was also suggested during the Diplomatic Conference, but in the end was not retained; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 116. See also the commentary on Article 31(1) of the First Convention, section C.
32 - But see United States, US Court of Appeals for the DC District, Al Warafi case, Judgment, 2013, pp. 7–8. The Court held: In the end, the question of whether Al Warafi has met his burden of establishing his status as permanent medical personnel entitled to protection under the First Geneva Convention is one of fact, or at least a mixed question of fact and law. Although the district court believed, and we agree, that military personnel without appropriate display of emblems can never so establish, it also found facts – e.g., the prior combat deployment – inconsistent with that role. See the commentary on Article 28 of the First Convention, paras 2171–2173.
33 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 116–118.
34 - Second Convention, Articles 36–37; see also Third Convention, Article 33.
35 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 316.
36 - For more information on this example, see ‘South Sudan shows Sudanese POWs [prisoners of war], as Khartoum urges to protect medical team’, Sudan Tribune, 16 April 2012, available at http://www.sudantribune.com/spip.php?article42271.
37 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 316.