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 KonfliktenHandbuch, 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.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
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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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