Norma relacionada
United States of America
Practice Relating to Rule 59. Improper Use of the Distinctive Emblems of the Geneva Conventions
The US Field Manual (1956) incorporates the content of Article 44 of the 1949 Geneva Convention I.
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 244.
The manual provides: “It is especially forbidden … to make improper use of … the distinctive badges of the [1864] Geneva Convention.”
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 52.
The manual adds:
The use of the emblem of the Red Cross and other equivalent insignia must be limited to the indication or protection of medical units and establishments, the personnel and material protected by [the 1949 Geneva Convention I] and other similar conventions. The following are examples of the improper use of the emblem: using a hospital or other building accorded such protection as an observation post or military office or depot; firing from a building or tent displaying the emblem of the Red Cross; using a hospital train or airplane to facilitate the escape of combatants; displaying the emblem on vehicles containing ammunition or other nonmedical stores; and in general using it for cloaking acts of hostility.
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 55.
The manual also states: “In addition to ‘grave breaches’ of the Geneva Conventions of 1949, the following acts are representative of violations of the law of war (‘war crimes’): misuse of the Red Cross emblem.”
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 504(f).
The US Air Force Pamphlet (1976) incorporates the content of Article 23(f) of the 1907 Hague Regulations.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 8-2.
The Pamphlet also provides: “It is forbidden to make use of the distinctive emblem of the red cross (red crescent, red lion and sun) … other than as provided for in international agreements establishing these emblems.”
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 8-3(c); see also §§ 8–6(b) and 12-2(d).
The Pamphlet adds:
The following are examples of improper use of the medical emblems: (i) using a hospital or other building marked with a red cross or equivalent insignia as an observation post, military office or depot; (ii) using distinctive signs, emblems or signals for cloaking acts of hostilities, such as firing from a building or other protected installation or means of medical transport; (iii) using protected means of medical transport, such as hospitals, trains or airplanes, to facilitate the escape of able-bodied combatants; (iv) displaying protective emblems on vehicles, trains, ships, airplanes, or other modes of transportation or other buildings containing ammunition or other military non-medical supplies.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 8-6(b).
The Pamphlet further states:
In addition to grave breaches of the Geneva Conventions of 1949, the following acts are representative of situations involving individual criminal responsibility: … wilful misuse of the Red Cross or a similar protective emblem.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c)(2).
The US Soldier’s Manual (1984) states:
It is a serious breach of the laws of war when soldiers use these signs [red cross, red crescent and red shield of David] to protect or hide military activities. Do not mark your position or yourself with a medical service emblem unless you have been designated to perform only medical duties. Your life may depend on the proper use of the Red Cross symbol.
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 7.
The US Naval Handbook (1995), in a chapter entitled “Misuse of protective signs, signals and symbols”, states that it is illegal to use transports marked with the red cross or red crescent to carry armed combatants, weapons or ammunition with which to attack or elude enemy forces.
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), § 12.2.
The Handbook further states: “Protective signs and symbols may be used only to identify personnel, objects, and activities entitled to the protected status which they designate. Any other use is forbidden by international law.”
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), § 11.9.6.
The Handbook also states: “The following acts are representative war crimes: … misuse, abuse … [of] the Red Cross device, and similar protective emblems.”
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), § 6.2.5(11).
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
IMPROPERLY USING A DISTINCTIVE EMBLEM.
a. Text. “Any person subject to this chapter who intentionally uses a distinctive emblem recognized by the law of war for combatant purposes in a manner prohibited by the law of war shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused used a distinctive emblem recognized by the law of war for combatant purposes;
(2) The accused used the distinctive emblem in a manner prohibited by the law of war;
(3) The accused knew or should have known of the prohibited nature of such use; and
(4) The conduct took place in the context of and was associated with armed conflict.
c. Comment.
(1) “Combatant purposes,” means purposes directly related to hostilities and does not include medical, religious, or similar activities.
(2) The use of the emblem of the Red Cross and other equivalent insignia must be limited to the indication or protection of medical units and establishments, the personnel and material protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces of the Field and other similar conventions. The following are examples of the improper use of the emblem: using a hospital or other building accorded such protection as an observation post or military office or depot; firing from a building or tent displaying the emblem of the Red Cross; using a hospital train or airplane to facilitate the escape of combatants; displaying the emblem on vehicles containing ammunition or other non-medical stores; and in general using it for cloaking acts of hostility.
d. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(19), pp. IV-14 and IV-15.
The US Naval Handbook (2007) states: “Protective signs and symbols may be used only to identify personnel, objects, and activities entitled to the protected status that they designate. Any other use is forbidden by international law.”
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, § 8.5.1.6.
The Handbook further states that “misuse [and] abuse … [of] the Red Cross device, and similar protective emblems” are examples of acts that could be considered war crimes.
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, § 6.2.6.
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
IMPROPERLY USING A DISTINCTIVE EMBLEM.
a. Text. “Any person subject to this chapter who intentionally uses a distinctive emblem recognized by the law of war for combatant purposes in a manner prohibited by the law of war shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused used a distinctive emblem recognized by the law of war for combatant purposes;
(2) The accused used the distinctive emblem in a manner prohibited by the law of war;
(3) The accused knew or should have known of the prohibited nature of such use; and
(4) The conduct took place in the context of and was associated with hostilities.
c. Comment.
(1) “Combatant purposes,” means purposes directly related to hostilities and does not include medical, religious, or similar activities.
(2) The use of the emblem of the Red Cross and other equivalent insignia must be limited to the indication or protection of medical units and establishments, the personnel and material protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces of the Field [1949 Geneva Convention I] and other similar conventions. The following are examples of the improper use of the emblem: using a hospital or other building accorded such protection as an observation post or military office or depot; firing from a building or tent displaying the emblem of the Red Cross; using a hospital train or airplane to facilitate the escape of combatants; displaying the emblem on vehicles containing ammunition or other non-medical stores; and in general using it for cloaking acts of hostility.
d. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(19), pp. IV-15 and IV-16.
The US Criminal Statute on the Protection of the Emblem (1905), as amended in 1910, states that the following are guilty of a criminal offence:
Whoever wears or displays the sign of the Red Cross or any insignia colored in imitation thereof for the fraudulent purpose of inducing the belief that he is a member of or an agent for the American National Red Cross; or
Whoever, whether a corporation, association or person, other than the American National Red Cross and its duly authorized employees and agents and the sanitary and hospital authorities of the armed forces of the United States, uses the emblem of the Greek red cross on a white ground, or any sign or insignia made or colored in imitation thereof or the words “Red Cross” or “Geneva Cross” or any combination of these words.
United States, Criminal Statute on the Protection of the Emblem, 1905, as amended in 1910, Section 706.
Under the US War Crimes Act (1996), violations of Article 23(f) of the 1907 Hague Regulations are war crimes.
United States, War Crimes Act, 1996, Section 2441(c)(2).
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
Ҥ 950v. Crimes triable by military commissions
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(19) Improperly using a distinctive emblem.—Any person subject to this chapter who intentionally uses a distinctive emblem recognized by the law of war for combatant purposes in a manner prohibited by the law of war shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2629, § 950v(b)(19).
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
Ҥ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(19) IMPROPERLY USING A DISTINCTIVE EMBLEM.—Any person subject to this chapter who intentionally uses a distinctive emblem recognized by the law of war for combatant purposes in a manner prohibited by the law of war shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2009, § 950t(19).
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: that “we support the principle … that internationally recognized protective emblems, such as the red cross, not be improperly used.”
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 425.
