Rule 59. The improper use of the distinctive emblems of the Geneva Conventions is prohibited.Volume II, Chapter 18, Section C.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
This is a long-standing rule of customary international law already recognized in the Lieber Code, the Brussels Declaration and the Oxford Manual.
[1] It was codified in the 1899 and 1907 Hague Regulations and the Geneva Conventions of 1906, 1929 and 1949.
[2] It is set forth in Additional Protocol I.
[3] Under the Statute of the International Criminal Court, “making improper use of the distinctive emblems of the Geneva Conventions” constitutes a war crime in international armed conflicts when it results in death or serious personal injury.
[4]The prohibition of improper use of the distinctive emblems has been stated in numerous military manuals.
[5] Violation of this rule is an offence under the legislation of many States.
[6] This rule is also supported by national case-law,
[7] official statements and other practice.
[8] In its judgment in the
Emblem case in 1994, Germany’s Federal Supreme Court stated that there was an essential common interest in the protection of the emblems against unauthorized use.
[9]Additional Protocol II provides for the prohibition of improper use of the distinctive emblems.
[10] In addition, this prohibition is contained in other instruments pertaining also to non-international armed conflicts.
[11]The prohibition of improper use of the distinctive emblems is set forth in military manuals which are applicable in or have been applied in non-international armed conflicts.
[12] Violation of this rule is an offence under the legislation of many States.
[13] This rule is supported by national case-law.
[14] It is also supported by official statements made in the context of non-international armed conflicts.
[15]In 1977, the 23rd International Conference of the Red Cross requested that States parties to the Geneva Conventions “enforce effectively the existing national legislation repressing the abuses of the emblem of the red cross, red crescent, red lion and sun, to enact such legislation wherever it does not exist at present and to provide for punishment by way of adequate sentences for offenders”.
[16] The ICRC has appealed to parties to both international and non-international armed conflicts to refrain from the misuse of the distinctive emblems.
[17]While several instances of improper use of the distinctive emblems have been reported, they have been denounced, principally by the ICRC but also by third States and the Inter-American Commission on Human Rights.
[18] Some of the parties involved in those incidents recognized that such acts were unlawful and stated that they would take measures to prevent future occurrences.
[19] It can be concluded that the general abstention from improperly using the distinctive emblems in practice is based on a legitimate expectation to that effect.
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. These uses are defined in the Geneva Conventions and in Additional Protocols I and II.
[20] This definition of improper use is also used in numerous military manuals and in the legislation of a large number of States.
[21]