Practice Relating to Rule 62. Improper Use of Flags or Military Emblems, Insignia or Uniforms of the Adversary
Sweden’s IHL Manual (1991) considers that the “prohibition of improper use of … emblems of nationality”, as contained in Article 39 of the 1977 Additional Protocol I, is part of customary international law.
The manual stresses that Article 39(2) of the 1977 Additional Protocol I “constitutes a valuable clarification of international humanitarian law, and one which is also significant for Swedish defence”. It explains:
The prohibition of improper use has been interpreted to mean that enemy uniform may not be used in connection with or during combat, and this has led to great uncertainty in application.
During the 1974–1977 diplomatic conference, certain of the great powers wished to retain the possibility of appearing in enemy uniforms, while most of the smaller states claimed that this possibility should be excluded or minimized. The conference accepted the view of the smaller states here. The rule in Article 39:2 [of the 1977 Additional Protocol I] can be interpreted to mean that enemy uniform may be used only as personal protection, for example under extreme weather conditions, and may never be used in connection with any type of military operation. Where prisoners of war make use of enemy uniforms in connection with escape attempts, this may not be seen as an infringement of Article 39.