Practice Relating to Rule 63. Use of Flags or Military Emblems, Insignia or Uniforms of Neutral or Other States Not Party to the Conflict

Note: For practice concerning the use of flags or military emblems, insignia or uniforms of neutral or other States not party to the conflict as an act considered perfidious, see Rule 65, Section J.
Additional Protocol I
Article 39(1) of the 1977 Additional Protocol I provides: “It is prohibited to make use in an armed conflict of the flags or military emblems, insignia or uniforms of neutral or other States not Parties to the conflict.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 39(1). Article 39 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 103.
San Remo Manual
Paragraph 109 of the 1994 San Remo Manual provides: “Military and auxiliary aircraft are prohibited at all times from feigning … neutral status.” 
Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, Prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, Cambridge University Press, Cambridge, 1995, § 109.
Australia
Australia’s Commanders’ Guide (1994) states: “It is prohibited to use flags, military emblems, insignia or uniforms of neutral or other States not party to the conflict.” 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 904.
The Guide further specifies:
The clothing of neutral nations must never be worn by the forces of a belligerent. Nor should flags, symbols and military markings of a neutral nation be used by a belligerent. While naval ships may use such markings in operations that do not involve actual combat, no similar rule applies to military aircraft or land operations. 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 510.
Australia
Australia’s Defence Force Manual (1994) provides: “In armed conflict, it is prohibited to use flags, military emblems, insignia or uniforms of neutral or other nations not party to the conflict.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 705.
Australia
Australia’s LOAC Manual (2006) states: “In armed conflict it is prohibited to use flags, military emblems, insignia or uniforms of neutral or other nations not party to the conflict.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.6.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Teaching Manual for Officers (1994) stipulates that the use of flags, symbols, insignia and uniforms of neutral or other States not parties to the conflict is prohibited “in all circumstances”. 
Belgium, Droit de la Guerre, Manuel d’Instruction pour Officiers, Etat-Major Général, Division Opérations, 1994, Part I, Title II, p. 34.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “[i]t is … prohibited to utilize the distinctive flags, emblems or uniforms of neutral States”. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 94.
Cameroon
Cameroon’s Instructor’s Manual (1992) states that “using fraudulently the emblems and uniforms of neutral States” is an unlawful deception. 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 30, § 131.2 and p. 89, § 222.
Cameroon
Cameroon’s Instructor’s Manual (2006) lists “fraudulently using the emblems or uniforms of neutral States” as one of several “unlawful deceptions”. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 103, § 371; see also p. 147, § 431, p. 222, § 222 and p. 323.
Canada
Canada’s LOAC Manual (1999) states: “It is prohibited to make use in armed conflict of flags or military emblems, insignia or uniforms of neutral or other states not parties to the conflict.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 12.
(emphasis in original)
Canada
Canada’s LOAC Manual (2001) states in its chapter on land warfare: “It is prohibited to make use in armed conflict of the flags or military emblems, insignia or uniforms of neutral or other states not parties to the conflict.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 606.
(emphasis in original)
In its chapter on naval warfare, the manual states:
Certain types of ruses are not permitted. Warships and auxiliary vessels are prohibited from opening fire while flying a false flag. They may, however, display the enemy flag or a neutral flag during pursuit. Such conduct at sea is accepted or at least tolerated, whether the ship in question is pursuing an enemy ship or is trying to escape from it. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 856.4.
Chad
Chad’s Instructor’s Manual (2006) states that “making use in armed conflict of flags, symbols, emblems or uniforms of the military forces of neutral States or of other States that are not party to the conflict” is prohibited and that to do so is a war crime. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 78.
Ecuador
Ecuador’s Naval Manual (1989) states:
At Sea. Under the customary international law of naval warfare, it is permissible for a belligerent warship to fly false colours and disguise its outward appearance in other ways in order to deceive the enemy into believing the vessel is of neutral nationality or is other than a warship. However, it is unlawful for a warship to go into action without first showing her true colours. Use of neutral flags, insignia, or uniforms during an actual armed engagement at sea is, therefore, forbidden.
In the Air. Use in combat of false or deceptive markings to disguise belligerent military aircraft as being of neutral nationality is prohibited.
On Land. The law of armed conflict applicable to land warfare has no rule of law analogous to that which permits belligerent warships to display neutral colours.
Belligerents engaged in armed conflict on land are not permitted to use the flags, insignia, or uniforms of a neutral nation to deceive the enemy. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 12.3.
France
France’s LOAC Manual (2001) provides: “It is prohibited to use the flags, emblems or uniforms of neutral States.” 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 47.
Germany
Germany’s Military Manual (1992) states: “It is prohibited to make improper use of … neutral national flags, military insignia and uniforms.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 473.
Indonesia
Indonesia’s Military Manual (1982) states: “It is … prohibited to use … the military uniforms of neutral States or other States which are not parties to the conflict.” 
Indonesia, The Basics of International Humanitarian Law, Legal Division of the Indonesian Armed Forces, 1982, § 104.
Italy
Under Italy’s IHL Manual (1991), it is prohibited, without qualification, “to use any flag, insignia or military uniforms other than the country’s own”. 
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 9(1).
Netherlands
The Military Manual (1993) of the Netherlands states: “In an armed conflict, it is prohibited to make use of the flags, military emblems, uniforms and insignia of States which are not parties to the conflict.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IV-3.
Netherlands
The Military Handbook (1995) of the Netherlands provides that it is prohibited “to use insignia and uniforms … of neutral States”. 
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-40.
Netherlands
The Military Manual (2005) of the Netherlands states: “In an armed conflict, it is forbidden to use flags, military emblems, uniforms and distinguishing signs of States which are not parties to the conflict.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0417.
In its chapter on non-international armed conflict, the manual states: “It is also prohibited to make use of the flags, military emblems, uniforms and distinctive signs of States that are not parties to the conflict.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1041.
New Zealand
New Zealand’s Military Manual (1992) states: “It is prohibited to make use in an armed conflict of the flags or military emblems, insignia or uniforms of neutral or other States not Parties to the conflict.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 502(8).
In respect of naval warfare, the manual stipulates: “Flags or markings of neutral … ships may be used prior to going into action.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 713(3).
Peru
Peru’s IHL Manual (2004) states: “It is prohibited to make use of the flags, emblems or uniforms of neutral States.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 27.e.(6).
Peru
Peru’s IHL and Human Rights Manual (2010) states: “It is prohibited to make use of the flags, emblems or uniforms of neutral States.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 28(e)(6), p. 318.
Russian Federation
The Russian Federation’s Military Manual (1990) considers that the improper use of national signals and flags is a prohibited method of warfare. 
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 5(c).
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states: “When organizing and conducting cover and concealment of military objectives it is prohibited to make use of … the flags, military emblems and uniforms of … neutral states.” 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 137.
Spain
Spain’s LOAC Manual (1996) prohibits the use of flags, emblems or uniforms of neutral States. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, §§ 3.3.b.(3) and 5.3.c.
Spain
Spain’s LOAC Manual (2007) states: “It is prohibited to … use the flags, emblems or uniforms of neutral States.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 3.3.b.(3); see also § 5.3.c.
Sweden
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. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3, p. 19.
The manual also notes that, during the CDDH:
There was a consensus in favour of introducing a rule forbidding this type of abuse on the part of belligerents. It should be noted that Article 39:1 [of the 1977 Additional Protocol I] prohibits any form of use in armed conflict. The rule relates not only to the uniforms etc. of neutral states, but also to those belonging to states that – without being neutral – are not parties to the conflict. By this are meant states that have the status of non-belligerents. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.1.b, pp. 31 and 32.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
15.2 Prohibited methods of warfare
224 Wearing enemy uniforms or feigning protected status by using the insignia, emblems or uniforms of the United Nations or of neutral States or States that are not party to the conflict is prohibited. 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 224.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
It is prohibited … to make use in an armed conflict of the flags or military emblems, insignia or uniforms of neutral or other States not Parties to the conflict … The prohibition of use of such items of states not party to the conflict is absolute. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.11.
In its chapter on maritime warfare, the manual states: “Warships and auxiliary vessels, however, are prohibited from launching an attack whilst flying a false flag, and at all times from actively simulating the status of those vessels exempt from attack.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 13.82.
United States of America
The US Air Force Pamphlet (1976) specifies: “Military aircraft may not bear … markings of neutral aircraft while engaging in combat.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 7-4.
United States of America
The US Naval Handbook (1995) states:
At Sea. Under the customary international law of naval warfare, it is permissible for a belligerent warship to fly false colors and disguise its outward appearance in other ways in order to deceive the enemy into believing the vessel is of neutral nationality or is other than a warship. However, it is unlawful for a warship to go into action without first showing her true colors. Use of neutral flags, insignia, or uniforms during an actual armed engagement at sea is, therefore, forbidden.
In the Air. Use in combat of false or deceptive markings to disguise belligerent military aircraft as being of neutral nationality is prohibited.
On Land. The law of armed conflict applicable to land warfare has no rule of law analogous to that which permits belligerent warships to display neutral colors. Belligerents engaged in armed conflict on land are not permitted to use the flags, insignia, or uniforms of a neutral nation to deceive the enemy. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 12.3.
United States of America
The US Naval Handbook (2007) states:
12.3 Neutral Flags, Insignia and Uniforms
12.3.1 At Sea
Under the customary international law of naval warfare, it is permissible for a belligerent warship to fly false colors and disguise its outward appearance in other ways in order to deceive the enemy into believing the vessel is of neutral nationality or is other than a warship. However, it is unlawful for a warship to go into action without first showing her true colors. Use of neutral flags, insignia, or uniforms during an actual armed engagement at sea is forbidden.
12.3.2 In the Air
Use in combat of false or deceptive markings to disguise belligerent military aircraft as being of neutral nationality is prohibited.
12.3.3 On Land
The law of armed conflict applicable to land warfare has no rule of law analogous to that which permits belligerent warships to display neutral colors. Belligerents engaged in armed conflict on land are not permitted to use the flags, insignia, or uniforms of a neutral nation to deceive the enemy. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, §§ 12.3, 12.3.1, 12.3.2 and 12.3.3.
Algeria
Algeria’s Code of Military Justice (1971) punishes the unauthorized use of the insignia of foreign armed forces. 
Algeria, Code of Military Justice, 1971, Article 298.
Armenia
Under Armenia’s Penal Code (2003), “the use during military actions of … the flag or insignia of … a neutral State … in breach of international treaties and international law” constitutes a crime against the peace and security of mankind. 
Armenia, Penal Code, 2003, Article 397.
Australia
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides:
A person shall not, without the consent in writing of the Minister or of a person authorized in writing by the Minister to give consents … use for any purpose whatsoever any of the following:
(f) such … emblems, identity cards, signs, signals, insignia or uniforms as are prescribed for the purpose of giving effect to [the 1977 Additional Protocol I]. 
Australia, Geneva Conventions Act, 1957, as amended in 2002, Section 15(1)(f).
The war crimes provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act (1995).
Australia
Australia’s Geneva Conventions Act (1957), as amended in 2009, states:
Subject to this section, a person shall not, without the consent in writing of the Minister or of a person authorized in writing by the Minister to give consents under this section, use for any purpose whatsoever any of the following:
(f) such other emblems, identity cards, signs, signals, insignia or uniforms as are prescribed for the purpose of giving effect to [the 1977 Additional] Protocol I or [the 2005 Additional] Protocol III. 
Australia, Geneva Conventions Act, 1957, as amended in 2009, § 15(1)(f).
Belarus
Belarus’s Criminal Code (1999) provides that it is a war crime to “use intentionally, during hostilities, in violation of international treaties, … the national flag or distinctive signs … of a neutral State”. 
Belarus, Criminal Code, 1999, Article 138.
Czech Republic
The Czech Republic’s Criminal Code (1961), as amended in 1999, punishes any “person who, in time of war, misuses … the flag … or military emblem, or the insignia or uniform of a neutral country or another country … which is not a party to the conflict”. 
Czech Republic, Criminal Code, 1961, as amended in 1999, Article 265(2).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Fiji
Fiji’s Geneva Conventions Promulgation (2007), as amended in 2009, states:
Part IV—Misuse of the Red Cross and Other Emblems, Signs, Signals, Identity Cards, Insignia and Uniforms
Use of red cross, red crescent and other emblems, etc.
12.—(1) Subject to the provisions of this section, it shall not be lawful for any person, without the consent in writing of the Minister of Home Affairs or a person authorized in writing by the Minister to give consent under this section, to use or display for any purpose whatsoever any of the following:
(j) such other flags, emblems, designations, signs, signals, designs, wordings, identity cards, information cards, insignia or uniforms as are prescribed for the purpose of giving effect to the Conventions or Protocols. 
Fiji, Geneva Conventions Promulgation, 2007, as amended in 2009, § 12(1)(j).
Ireland
Under Ireland’s Geneva Conventions Act (1961), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 39(1), is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Italy
Under Italy’s Law of War Decree (1938), as amended in 1992, it is prohibited, without qualification, “to use any flag, insignia or military uniforms other than the country’s own”. 
Italy, Law of War Decree, 1938, as amended in 1992, Article 36(2).
Italy
Italy’s Wartime Military Penal Code (1941) punishes anyone who uses improperly the flag, insignia or military uniforms of a State other than his/her own. 
Italy, Wartime Military Penal Code, 1941, Article 180.
Nicaragua
Nicaragua’s Military Penal Code (1996) punishes any soldier who, in time of war and in an area of military operations, “unlawfully displays … the flags or emblems … of neutral [States]”. 
Nicaragua, Military Penal Code, 1996, Article 50(1).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).
Philippines
Under the Philippines’ Diplomatic Immunities Act (1946), it is a punishable offence “with intent to deceive or mislead, within the jurisdiction of the Republic, [to] wear any naval, military, police, or other official uniform, decoration or regalia of any foreign State, nation or government with which the Republic of the Philippines is at peace”. 
Philippines, Diplomatic Immunities Act, 1946, Section 3.
Poland
Poland’s Penal Code (1997) punishes “any person who, during hostilities, uses … flags or military emblems of a … neutral State … in violation of international law”. 
Poland, Penal Code, 1997, Article 126(2).
Slovakia
Slovakia’s Criminal Code (1961), as amended, punishes any “person who, in time of war, misuses … the flag … or military emblem, or the insignia or uniform of a neutral country or another country … which is not a party to the conflict”. 
Slovakia, Criminal Code, 1961, as amended, Article 265(2).
Somalia
Somalia’s Military Criminal Code (1963) states: “A penalty of military confinement for up to seven years shall be applied to anyone … who improperly uses military flags, insignia or uniforms other than those of his own State.” 
Somalia, Military Criminal Code, 1963, Article 364.
Spain
Spain’s Military Criminal Code (1985) punishes any soldier who “displays improperly … neutral flags and emblems”. 
Spain, Military Criminal Code, 1985, Article 75(1).
Spain
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict … uses improperly … the flag, uniform, insignia or distinctive emblem … of neutral States … or States that are not parties to the conflict”. 
Spain, Penal Code, 1995, Article 612(5).
Syrian Arab Republic
Under the Syrian Arab Republic’s Penal Code (1949), the wearing by any person of an official uniform or insignia of the Syrian State or of a foreign State is a punishable offence. 
Syrian Arab Republic, Penal Code, 1949, § 381.
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “It is prohibited to use the flags, emblems or uniforms of neutral States.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 405.
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