Practice Relating to Rule 61. Improper Use of Other Internationally Recognized Emblems
Note: For practice concerning the simulation of protected status by using other internationally recognized emblems as an act considered perfidious, see Rule 65, Section H.
Hague Convention for the Protection of Cultural Property
Article 17 of the 1954 Hague Convention for the Protection of Cultural Property provides:
1. The distinctive emblem repeated three times may be used only as a means of identification of:
(a) immovable cultural property under special protection;
(b) the transport of cultural property under the conditions provided for in Articles 12 and 13;
(c) improvised refuges, under the conditions provided for in the Regulations for the execution of the Convention.
2. The distinctive emblem may be used alone only as a means of identification of:
(a) cultural property not under special protection;
(b) the persons responsible for the duties of control in accordance with the Regulations for the execution of the Convention;
(c) the personnel engaged in the protection of cultural property;
(d) the identity cards mentioned in the Regulations for the execution of the Convention.
3. During an armed conflict, the use of the distinctive emblem in any other cases than those mentioned in the preceding paragraphs of the present Article, and the use for any purpose whatever of a sign resembling the distinctive emblem, shall be forbidden.
Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, Article 17.
Additional Protocol I
Article 38(1) of the 1977 Additional Protocol I provides: “It is … prohibited to misuse deliberately in an armed conflict … internationally recognized protective emblems, signs or signals, including … the protective emblem of cultural property.”
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 38(1). Article 38 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 103.
Additional Protocol I
Article 66(8) of the 1977 Additional Protocol I provides:
The High Contracting Parties and the Parties to the conflict shall take the measures necessary to supervise the display of the international distinctive sign of civil defence and to prevent and repress any misuse thereof.
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 66(8). Article 66 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 243.
Additional Protocol II (draft)
Article 23 of the draft Additional Protocol II submitted by the ICRC to the CDDH provided: “It is forbidden to make use … of the protective emblem of cultural property for purposes other than those provided for in the Convention establishing [this] sign.”
CDDH, Official Records, Vol. I, Part Three, Draft Additional Protocols, June 1973, p. 39.
This proposal was amended and adopted by consensus in Committee III of the CDDH.
CDDH, Official Records, Vol. XV, CDDH/III/SR.49, 4 June 1976, p. 109, § 8.
The approved text provided that it was “forbidden to misuse deliberately in armed conflict other internationally recognized protective emblems … including … whenever applicable, the protective emblem of cultural property”.
CDDH, Official Records, Vol. XV, CDDH/236/Rev.1, 21 April–11 June 1976, p. 421.
Eventually, however, it was deleted by consensus in the plenary.
CDDH, Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 129.
No data.
Argentina
Argentina’s Law of War Manual (1989) prohibits the deliberate abuse of internationally recognized protective emblems, including the emblem of cultural property.
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.06(1).
Australia
Australia’s Commanders’ Guide (1994) provides: “The following examples constitute grave breaches or serious war crimes likely to warrant institution of criminal proceedings: … misusing or abusing … any … protected emblem for the purpose of gaining protection to which the user would not otherwise be entitled.”
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1305(l).
Australia
Australia’s Defence Force Manual (1994) prohibits the “deliberate misuse of … protective symbols and emblems … including the protective emblem of cultural property”.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 704.
The manual also provides: “The following examples constitute grave breaches or serious war crimes likely to warrant institution of criminal proceedings: … misusing or abusing … any … protected emblem for the purpose of gaining protection to which the user would not otherwise be entitled.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1315(l).
Australia
Australia’s LOAC Manual (2006) prohibits the “deliberate misuse of … protective symbols and emblems … including … the protective emblem of cultural property”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.5.
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:
It is prohibited to abuse the protective signs provided for by the [1949 Geneva] Conventions and [of the 1977 Additional Protocol I]. Example: camouflaging arms and ammunition in a vehicle or a building displaying the protective sign … of cultural property [or] of civil defence.
Belgium, Droit de la Guerre, Manuel d’Instruction pour Officiers, Etat-Major Général, Division Opérations, 1994, Part I, Title II, p. 33.
Burkina Faso
Burkina Faso’s Disciplinary Regulations (1994) provides that, under the laws and customs of war, it is prohibited “to use improperly … the distinctive insignia recognized by international conventions”.
Burkina Faso, Règlement de Discipline Générale dans les Forces Armées, Décret No. 94-159/IPRES/DEF, Ministère de la Défense, 1994, Article 35(2).
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “[i]t is prohibited to improperly use … other internationally recognized distinctive signs or signals”.
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 Disciplinary Regulations (1975) provides that, under the laws and customs of war, it is prohibited “to use improperly … the distinctive insignia recognized by international conventions”.
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 32.
Cameroon
Cameroon’s Instructor’s Manual (1992) states that improper use of distinctive signs and signals 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 “improperly using distinctive signs and signals” as one of several “prohibited 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 and p. 222. § 222.
Cameroon
Cameroon’s Disciplinary Regulations (2007) states:
Article 32: Prohibitions
It is prohibited to soldiers in combat:
…
- to use improperly … the distinctive insignia recognized by international conventions.
Cameroon, Règlement de discipline générale dans les forces de défense, Décret N° 2007/199, Président de la République, 7 July 2007, Article 32.
Canada
Canada’s LOAC Manual (1999) states that it is prohibited “to make improper use of the … emblems, signs or signals provided for by the Geneva Conventions or Additional Protocols [and] to deliberately misuse … internationally recognized protective emblems, signs or signals including … the protective emblem of cultural property”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 11(a) and (b); see also p. 8-10, § 79(g) (prohibition of warships and auxiliary vessels actively simulating the status of vessels engaged in transporting cultural property under special protection).
(emphasis in original)Canada
Canada’s LOAC Manual (2001) states in its chapter on land warfare:
1. It is prohibited:
a. to make improper use of the other emblems, signs or signals provided for by the Geneva Conventions or Additional Protocols;
b. to deliberately misuse other internationally recognized protective emblems, signs or signals including the flag of truce and the protective emblem of cultural property.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 605.1.a–b.
In its chapter on naval warfare, the manual states: “Warships and auxiliary vessels are also prohibited from actively simulating the status of: … g. vessels engaged in transporting cultural property under special protection”.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 856.5.g.
Central African Republic
The Central African Republic’s Disciplinary Regulations (2009) states: “During combat, it is also prohibited for servicemen to … make improper use of … the distinctive emblems of international conventions”.
Central African Republic, Décret 09.411 portant règlement de discipline générale dans les Armées, Ministre de la Défense Nationale, des Anciens Combattants, des Victimes de Guerre, du Désarmement et de la Restructuration de l’Armée, 10 December 2009, Article 12(11).
Colombia
Colombia’s Instructors’ Manual (1999) states that it is a punishable offence “to use improperly insignia, flags and emblems … of organizations accepted by humanitarian law”.
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 31.
Congo
The Congo’s Disciplinary Regulations (1986) provides that, under the laws and customs of war, it is prohibited “to use improperly … the distinctive insignia recognized by international conventions”.
Congo, Décret No. 86/057 du 14 janvier 1986 portant Règlement du Service dans l’Armée Populaire Nationale, 1986, Article 32(2).
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders):
It is prohibited:
…
b. to misuse deliberately other internationally recognized protective emblems, signs or signals, including … the protective emblem of cultural property.
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 49.
Djibouti
Djibouti’s Disciplinary Regulations (1982) states: “It is prohibited for combatants to … make improper use of … the distinctive emblems provided for in international conventions.”
Djibouti, Décret no. 82-028/PR/DEF du 5 mai 1982 portant règlement de la discipline générale dans les Forces armées, Article 30(3).
Ecuador
Ecuador’s Naval Manual (1989) states: “Protective signs and symbols may be used only to identify personnel, objects, and activities entitled to protected status which they designate. Any other use is forbidden by international law.”
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 11.10.5.
France
France’s Disciplinary Regulations (1975), as amended, states that it is prohibited “to use improperly … the distinctive signs provided for in international conventions”.
France, Règlement de Discipline Générale dans les Armées, Decree No. 75-675 of 28 July 1975, replacing Decree No. 66-749, completed by Decree of 11 October 1978, implemented by Instruction No. 52000/DEF/C/5 of 10 December 1979, and modified by Decree of 12 July 1982, Ministère de la Défense, Etat-Major de l’Armée de Terre, Bureau Emploi, Article 9 bis (2).
France
France’s LOAC Manual (2001) prohibits the improper use of the symbols of civil defence, cultural property, works and installations containing dangerous forces and other recognized symbols.
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 special internationally acknowledged protective emblems.”
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.
The manual also states: “During an international armed conflict, the use of the distinctive emblem for any other purpose than that of the protection of cultural property is forbidden.”
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, § 932.
Italy
Under Italy’s IHL Manual (1991), misuse of the distinctive signs of civil defence, cultural property and installations containing dangerous forces is prohibited.
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(2).
The manual also states that grave breaches of international conventions and protocols, including “the improper … use of international protective signs”, are considered war crimes.
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, § 85.
Lebanon
Lebanon’s Army Regulations (1971) prohibits the unlawful use of the distinctive signs provided for in international agreements.
Lebanon, Règlement Général de l’Armée, No. 1/400, Ministère de la Défense, Commandement de l’Armée, 14 January 1971, § 17.
Mali
Mali’s Army Regulations (1979) provides that, under the laws and customs of war, it is prohibited “to use improperly … the distinctive insignia recognized by international conventions”.
Mali, Règlement du Service dans l’Armée, 1ère Partie: Discipline Générale, Ministère de la Défense Nationale, 1979, Article 36.
Morocco
Morocco’s Disciplinary Regulations (1974) provides that, under the laws and customs of war, it is prohibited “to use improperly … the distinctive insignia recognized by international conventions”.
Morocco, Règlement de Discipline Général dans les Forces Armées Royales, Dahir No. 1-74-383 du 15 rejeb 1394, 5 August 1974, Article 25(2).
Netherlands
The Military Manual (1993) of the Netherlands provides:
It is … forbidden to make improper use of … emblems and signals which are mentioned in treaties on the law of war. This concerns, inter alia, the signs for civil defence and cultural property. The signals are light signals and electronic communication and identification as regulated in Annex I to Additional Protocol I.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IV-3.
The manual further states that “the misuse of … recognized protective signs” is a grave breach of the 1977 Additional Protocol I.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IX-5.
Netherlands
The Military Manual (2005) of the Netherlands states:
It is also forbidden to make unauthorized use of other signs and emblems mentioned in the conventions on the law of war. These include signs of civilian protection and cultural property. Signs mean illuminated signs and electronic communication and identification, as governed by AP [1977 Additional Protocol I] Annex I.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0416.
New Zealand
New Zealand’s Military Manual (1992) provides: “Improper use of protective symbols … is prohibited.” In its list of protective symbols, the manual includes: symbols for civil defence, cultural property, installations containing dangerous forces, demilitarised zones and non-defended localities, internment camps, hospitals and safety zones and prisoner-of-war camps.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, §§ 502(7) and Annex B.
Peru
Peru’s IHL Manual (2004) states:
It is prohibited to make improper use of the following (to mark people or objects not entitled to protection):
…
(b) distinctive sign of civil defence;
(c) distinctive sign of cultural property;
(d) distinctive sign of works and installations containing dangerous forces;
…
(f) other internationally recognized protective emblems, signs or signals (for example, ad hoc signs for demilitarized zones, non-defended localities, ad hoc signals for civil defence, etc.).
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.(8).(b)–(d) and (f).
Peru
Peru’s IHL and Human Rights Manual (2010) states:
It is prohibited to make improper use of the following (to mark people or objects not entitled to protection):
…
(b) distinctive sign of civil defence;
(c) distinctive sign of cultural property;
(d) distinctive sign of works and installations containing dangerous forces;
…
(f) other internationally recognized protective emblems, signs or signals (for example, ad hoc signs for demilitarized zones, non-defended localities, ad hoc signals for civil defence, etc.).
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)(8)(b)–(d) and (f), p. 238.
Russian Federation
The Russian Federation’s Military Manual (1990) regards the improper use of international signals and flags as 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:
The prohibited methods of warfare include … making improper use of … international distinctive signs of civil defence and cultural property, the special international sign designating particularly dangerous objects [or] other internationally recognized protective signs and signals.
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, § 7.
The Regulations further states: “When organizing and conducting cover and concealment of military objectives it is prohibited to make use of … international distinctive emblems, signs and signals.”
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.
Senegal
Senegal’s Disciplinary Regulations (1990) provides that, under the laws and customs of war, it is prohibited “to use improperly … the distinctive insignia recognized by international conventions”.
Senegal, Règlement de Discipline dans les Forces Armées, Décret 90-1159, 12 October 1990, Article 34(2).
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
5.1 War Crimes and Grave Breaches of the LOAC [law of armed conflict]
…
Examples of Punishments that can be Imposed for War Crimes or Grave Breaches
…
- Misuse of protected signs: 10 years imprisonment.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 5, pp. 236 and 238.
Spain
Spain’s LOAC Manual (1996) provides that the emblems for civil defence, cultural property and installations containing dangerous forces, as well as other internationally recognized emblems, signs or signals, can only be used for their intended purpose.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, §§ 3.3.b.(2) and 5.3.c.
Spain
Spain’s LOAC Manual (2007) states:
It is prohibited to make improper use of the following distinctive signs and signals for any purpose other than the intended one:
…
(b) the distinctive sign of civil defence;
(c) the distinctive sign of cultural property;
(d) the distinctive sign of works or installations containing dangerous forces;
…
(g) other internationally recognized emblems, signs and signals.
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.(2).(b), (c), (d) and (g); see also § 5.3.c.
Sweden
Sweden’s IHL Manual (1991) considers that the “prohibition of improper use of recognized emblems”, as contained in Article 38 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.
Switzerland
Switzerland’s Aide-Memoire on the Ten Basic Rules of the Law of Armed Conflict (2005) states:
Rule 8
I remain fair:
- I shall use the distinctive emblems, white flag and uniform in accordance with the rules (cf. Rule 10). These also protect my comrades and me;
…
Rule 10
I am familiar with the international protective signs and their meaning.
Switzerland, The Ten Basic Rules of the Law of Armed Conflict, Aide-memoire 51.007/IIIe, Swiss Army, issued based on Article 10 of the Ordinance for Organization of the Federal Department for Defence, Civil Protection and Sports dated 7 March 2003, entry into force on 1 July 2005, Rules 8 and 10.
The Aide-Memoire also states with regard to civil defence:
Correct behaviour
…
- The distinctive signs may only be used by persons entitled and only for their intended purpose.
Prohibited is/are …
…
- Any improper use of the signs, e.g. to cover military actions[.]
Switzerland, Ten Basic Rules of the Law of Armed Conflict, Aide-memoire 51.007/IIIe, Swiss Army, issued based on Article 10 of the Ordinance for Organization of the Federal Department for Defence, Civil Protection and Sports dated 7 March 2003, entry into force on 1 July 2005, Chart of Protective Signs.
The Aide-Memoire further states with regard to the “Protection of cultural properties (simple or reinforced protection)”:
Correct behaviour
…
- The distinctive signs may only be used by persons entitled and only for their intended purpose.
Prohibited is/are …
…
- Any improper use of the distinctive sign, e.g. to cover military actions[.]
Switzerland, The Ten Basic Rules of the Law of Armed Conflict, Aide-memoire 51.007/IIIe, Swiss Army, issued based on Article 10 of the Ordinance for Organization of the Federal Department for Defence, Civil Protection and Sports dated 7 March 2003, entry into force on 1 July 2005, Chart of Protective Signs.
Concerning prisoner-of-war camps, the Aide-Memoire states:
Correct behaviour
- The camps must be situated at a sufficient distance to combat zones and must be marked.
Prohibited is/are …
…
- Any improper use of the distinctive sign.
Switzerland, The Ten Basic Rules of the Law of Armed Conflict, Aide-memoire 51.007/IIIe, Swiss Army, issued based on Article 10 of the Ordinance for Organization of the Federal Department for Defence, Civil Protection and Sports dated 7 March 2003, entry into force on 1 July 2005, Chart of Protective Signs.
Concerning internee camps, the Aide-Memoire states:
Correct behaviour
- The camps must be situated at a sufficient distance to combat zones and must be marked.
Prohibited is/are …
…
- Any improper use of the distinctive sign.
Switzerland, The Ten Basic Rules of the Law of Armed Conflict, Aide-memoire 51.007/IIIe, Swiss Army, issued based on Article 10 of the Ordinance for Organization of the Federal Department for Defence, Civil Protection and Sports dated 7 March 2003, entry into force on 1 July 2005, Chart of Protective Signs.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
15.2 Prohibited methods of warfare
223 Misuse of a distinctive sign and the feigning of protected status are prohibited in any place and at any time. Examples: … establishing military command posts in civilian installations, etc.
…
17 Sanctions for violations of the international law of armed conflict
…
237 The following in particular are criminal offences: improper use of international distinctive signs[.]
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, §§ 223 and 237. The German language version of the second sentence of § 223 notes: “Examples: … establishing military command posts in civil defence installations [“Zivilschutzanlagen”], etc.”.
Ukraine
Ukraine’s IHL Manual (2004) states: “The following methods of warfare shall be prohibited: … misuse of … other internationally recognized emblems and symbols”.
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.3.2.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “It is prohibited to … misuse deliberately in an armed conflict other internationally recognized protective emblems, signs or signals, including the flag of truce, and the protective emblem of cultural property.”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.10.
United States of America
The US Air Force Pamphlet (1976) provides:
It is forbidden to make use of … the protective signs for safety zones other than as provided for in international agreements establishing these [signs] … It is also prohibited to make improper use of … the protective emblem of cultural property.
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) and 8-6(b).
United States of America
The US Naval Handbook (1995) states: “Protective signs and symbols may be used only to identify personnel, objects, and activities entitled to 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 lists the protective emblem for cultural property among emblems not to be misused.
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), §§ 11.9.4 and 12.2.
United States of America
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] 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.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) provides that “it is forbidden to use, during combat, in order to mislead the enemy, … internationally recognized signs”, inter alia, the sign of protected cultural property.
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 105(3).
Algeria
Algeria’s Code of Military Justice (1971) punishes:
any individual, whether military or not, who, in time of war, in an area of operations … in violation of the laws and customs of war, improperly uses the distinctive signs and emblems defined by international conventions for the respect of persons, objects and places protected by these conventions.
Algeria, Code of Military Justice, 1971, Article 299.
Argentina
Argentina’s Law on Civil Defence (1981) in Buenos Aires “prohibits in the whole territory of the city of Buenos Aires the use of the denominations, symbols, distinctive signs … officially used for civil defence, for purposes other than those intended, or when it may create confusion as to its real significance”.
Argentina, Law on Civil Defence in Buenos Aires, 1981, Article 15.
Armenia
Under Armenia’s Penal Code (2003), “the use during military actions of … the signs designed to identify cultural property or of other protective signs … 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:
…
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).
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 protective signs of cultural property or other signs protected under international law”.
Belarus, Criminal Code, 1999, Article 138.
Bosnia and Herzegovina
Under the Federation of Bosnia and Herzegovina’s Criminal Code (1998), “whoever misuses or carries without authorization … any … international symbols recognized as the protection of certain objects from military operations” commits a war crime.
Bosnia and Herzegovina, Federation, Criminal Code, 1998, Article 166(1).
The Republika Srpska’s Criminal Code (2000) contains the same provision.
Bosnia and Herzegovina, Republika Srpska, Criminal Code, 2000, Article 445(1).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) states:
(1) Whoever misuses or carries without authorization … any other international symbols recognized as the protection of certain objects from military operations,
shall be punished by a fine or imprisonment for a term not exceeding three years.
(2) Whoever perpetrates the criminal offence referred to in paragraph 1 of this Article during a state of war or imminent war …
shall be punished by imprisonment for a term of between six months and five years.
Bosnia and Herzegovina, Criminal Code, 2003, Article 184.
Burkina Faso
Burkina Faso’s Code of Military Justice (1994) punishes the improper use, in violation of the laws and customs of war, of the distinctive insignia and emblems for the protection of persons, objects and locations as defined in international conventions, in time of war and in an area of military operations.
Burkina Faso, Code of Military Justice, 1994, Article 205.
Burundi
Burundi’s Military Penal Code (1980) states:
Any person who, in the area of operations of a force or unit [and] in violation of the laws and customs of war, improperly uses the distinctive signs and emblems defined by the international conventions to ensure the respect for persons, objects and places protected by these conventions, is punished with two to five years’ imprisonment.
Burundi, Military Penal Code, 1980, Article 60.
Cook Islands
The Geneva Conventions and Additional Protocols Act (2002) of the Cook Islands provides:
No person may, without the authority of the Minister or a person authorised by the Minister in writing to give consent under this section, use for any purpose any of the following:
…
(e) The sign of an equilateral blue triangle on, and completely surrounded by, an orange ground (which is the international distinctive sign of civil defence);
(f) Any of the distinctive signals specified in Chapter III of Annex 1 to the First Additional Protocol (which are the signals of identification for medical units and transports);
(g) The sign of a group of three bright orange circles of equal size, placed on the same axis, the distance between each circle being one radius (which is the international special sign for works and installations containing dangerous forces);
(h) Any emblem, designation, or signal, so nearly resembling any of the emblems, designations, or signals, specified in paragraphs (a) to (g) as to be capable of being mistaken for, or, as the case may be, understood as referring to, one of those emblems, designations, or signals.
Cook Islands, Geneva Conventions and Additional Protocols Act, 2002, Section 10(1).
Côte d’Ivoire
Côte d’Ivoire’s Penal Code (1981), as amended in 1998, punishes “anyone who, in an area of military operations, uses, in violation of the laws and customs of war, the distinctive insignia and emblems, defined by international conventions, to ensure respect for protected persons, objects and places”.
Côte d’Ivoire, Penal Code, 1981, as amended in 1998, Article 473.
Croatia
Under Croatia’s Criminal Code (1997), “whoever misuses or carries without authorization … recognized international signs used to mark objects for the purpose of protection against military operations” commits a war crime.
Croatia, Criminal Code, 1997, Article 168(1).
Croatia
Croatia’s Criminal Code (1997), as amended to 2006, punishes whoever “misuses or carries without authorization … recognized international signs used to mark objects for the purpose of protection against military operations”.
Croatia, Criminal Code, 1997, as amended to 2006, Article 168(1).
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Code of Military Justice (1972), as amended in 1980, punishes “any individual, whether military or not, who, in time of war … improperly uses the distinctive signs and emblems defined by international conventions to ensure respect for the persons, objects and places protected under these conventions”.
Democratic Republic of the Congo, Code of Military Justice, 1972, as amended in 1980, Article 455.
Denmark
Denmark’s Rescue Preparedness Act (1992) punishes “any person who, during crisis or in times of war, deliberately abuses … the signs which, according to an international agreement ratified by Denmark, have been reserved for the tasks attended to by the rescue preparedness [i.e. civil defence] in Denmark”.
Denmark, Rescue Preparedness Act, 1992, Article 68.
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).
Estonia
Under Estonia’s Penal Code (2001), “exploitative abuse … of the distinctive signs of a structure containing a prisoner-of-war camp, a cultural monument, civil defence object or dangerous forces” is a war crime.
Estonia, Penal Code, 2001, § 105.
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:
…
(f) the sign of an equilateral blue triangle on and completely surrounded by an orange ground, being the international distinctive sign of civil defence;
…
(h) the sign consisting of a group of three bright orange circles of equal size, placed on the same axis, the distance between each circle being one radius, being the international special sign for works and installations containing dangerous forces;
(i) a design, wording or signal so nearly resembling any of the emblems, designations, signs or signals specified in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) as to be capable of being mistaken for, or, as the case may be, understood as referring to, one of those emblems, designations, signs or signals.
Fiji, Geneva Conventions Promulgation, 2007, as amended in 2009, § 12(1)(f) and (h)–(i).
Finland
Finland’s Emblem Act (1979) provides:
The international distinctive sign of civil defence shall not be used in cases other than those provided for in this Act …
The international distinctive sign of civil defence … is to be utilized as provided for in the Protocols Additional to the Geneva Conventions …
…
Signs, pictures or terms which resemble the emblems, signs or terms referred to in § 1 to such a degree that confusion may arise, shall not be used.
Finland, Emblem Act, 1979, §§ 1 and 2.
The Act further punishes “whosoever makes use of the emblems, signs, pictures or terms referred to in §§ 1 and 2 in … unauthorized activity”.
Finland, Emblem Act, 1979, § 6.
France
France’s Code of Military Justice (1982) punishes:
any individual, military or not, who, in time of war, in the area of operations of a force or unit, in violation of the laws and customs of war, uses improperly the distinctive signs and emblems defined by international conventions to ensure respect for persons, objects and places protected by those conventions.
France, Code of Military Justice, 1982, Article 439.
France
France’s Code of Military Justice (2006) states:
The offence by any person, military or not, who in times of war, in the area of operations of a force or unit, in violation of the laws and customs of war, improperly uses the distinctive signs and emblems defined by the international conventions to ensure the respect of persons, objects and places protected by these conventions, is punished with five years’ imprisonment.
France, Code of Military Justice, 2006, Article L. 322-16.
France
France’s Code of Defence (2004), as amended in 2008, states: “[Combatants] are … prohibited to improperly use … the distinctive emblems recognized by international law.”
France, Code of Defence, 2004, as amended in 2008, Article D4122-9.
Georgia
Georgia’s Criminal Code (1999), taking into account amendments up to 2017, states:
Intentional breach of the provisions of … international humanitarian law during armed conflicts between states or within a state, in particular:
…
f) improper use of … other markings recognised under … international humanitarian law, which has resulted in human deaths or serious bodily injuries;
…
shall be punished by imprisonment for a term of ten to fifteen years.
Georgia, Criminal Code, 1999, taking into account amendments up to 2017, Article 411(1)(f).
Guinea
Guinea’s Criminal Code (1998) punishes “anyone [who], in an area of military operations and in violation of the laws and customs of war, uses distinctive insignia and emblems defined in international conventions to ensure respect for protected persons, objects and places”.
Guinea, Criminal Code, 1998, Article 579.
Guinea
Guinea’s Code of Military Justice (2011) states:
Any person who, in times of war or armed conflict, in an area of military operations and in violation of laws and customs of war, improperly uses distinctive signs and emblems defined by International Conventions to ensure respect for persons, property and sites protected by these conventions, shall be punished with one (01) to five (05) years’ imprisonment.
Guinea, Code of Military Justice, 2011, Article 158.
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Articles 38(1) and 66(8), is a punishable offence.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Italy
Italy’s Wartime Military Penal Code (1941) punishes anyone who “uses improperly … the international distinctive signs of protection”.
Italy, Wartime Military Penal Code, 1941, Article 180(3).
Japan
Japan’s Civil Protection Law (2004) states:
Article 158
1. No person may abuse, in armed attack situations etc., distinctive signs (international distinctive signs under Article 66 Paragraph 3 of [1977] Additional Protocol I, … or identity cards …
…
Article 189
A person who falls under either of the following shall be subject to imprisonment of not more than six months or a fine of not more than 300,000 yen:
…
(2) A person who abuses … the distinctive signals or identity cards in violation of Article 158 Paragraph 1.
Japan, Civil Protection Law, 2004, Articles 158(1) and 189(2).
Mali
Mali’s Code of Military Justice (1995) punishes:
any individual … who, in time of war, in the area of operations of a military force and in violation of the laws and customs of war, improperly uses the distinctive signs and emblems defined in international conventions to ensure respect for persons, objects and places protected by these conventions.
Mali, Code of Military Justice, 1995, Article 145.
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).
Norway
Norway’s Penal Code (1902) provides that it is a punishable offence to use “without authority publicly or for an unlawful purpose … any badge or designation which by international agreement binding on Norway is designed for use in connection with … the protection of cultural values in war”.
Norway, Penal Code, 1902, § 328(4)(b).
Norway
Norway’s Penal Code (1902), as amended in 2008, states:
Any person is liable to punishment for a war crime who in connection with an armed conflict … makes improper use of … the specially protected distinctive emblems [of the Geneva Conventions and Additional Protocols or any other means of identification indicating that they are protected under the Geneva Conventions] resulting in death or serious injury.
Norway, Penal Code, 1902, as amended in 2008, § 105(c).
Poland
Poland’s Penal Code (1997) punishes “any person who, during hostilities, uses the protective sign of cultural property or any other sign protected by international law”, in violation thereof.
Poland, Penal Code, 1997, Article 126(2).
Serbia
Serbia’s Criminal Code (2005) states:
Whoever abuses or carries without authorization … internationally recognized signs for designating particular facilities for their protection during military operations, or who orders such acts committed, shall be punished by imprisonment for up to three years.
Serbia, Criminal Code, 2005, Article 378(1) and (2).
Sierra Leone
Sierra Leone’s Geneva Conventions Act (2012) states:
10. Use of red cross and other emblems.
(1) Subject to this section, it shall not be lawful for any person, without the consent in writing of the Minister [of Foreign 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: –
…
(e) the sign of an equilateral blue triangle on, and completely surrounded by, an orange ground, being the international distinctive sign of civil defence;
(f) any of the distinctive signals specified in Chapter III of Annex I to the [1977] First [Additional] Protocol, being the signals of identification for medical units and transports;
(g) the sign consisting of a group of three bright orange circles of equal size, placed on the same axis, the distance between each circle being one radius being the international special sign for works and installations containing dangerous forces;
(h) any emblem or designation protected under any additional protocol to the [1949 Geneva] Convention[s] to which the Republic of Sierra Leone is a party;
(i) any design, wording or signal so nearly resembling any of the emblems, designations, signs or signals specified in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) as to be capable of being mistaken for, or, as the case may be, understood as referring to, one of those emblems, designations, signs or signals;
j) such other flags, emblems, designations, signs, signals, designs, wordings, identity cards, information cards, insignia or uniforms as are prescribed for the purposes of giving effect to the Conventions or [1977 Additional] Protocols [I and II].
…
(4) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding fifty million leones or to imprisonment for a term not exceeding ten years or to both the fine and imprisonment.
(5) Where a person is convicted of an offence under subsection (1), the court may in addition to the term of imprisonment or fine order the forfeiture to the State, the goods in connection with which the emblem was used by that person.
(6) Where an offence under this section is committed by a body of persons –
(a) in the case of a body corporate every director or officer of that body corporate commits that offence; and
(b) in the case of a firm or partnership, every partner commits that offence.
(7) A person shall not be convicted of an offence by virtue of subsection (6) if it is proved that the offence was committed without that person’s knowledge, connivance or that due diligence was exercised by that person to prevent the commission of the offence.
Sierra Leone, Geneva Conventions Act, 2012, Section 10(1)(e)–(j) and (4)–(7).
Slovenia
Under Slovenia’s Penal Code (1994), “whoever abuses or carries without authorization … internationally recognized symbols used for the protection … against military operations” commits a war crime.
Slovenia, Penal Code, 1994, Article 386(1).
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 … the international emblems of protection”.
Somalia, Military Criminal Code, 1963, Article 364.
South Africa
South Africa’s Implementation of the Geneva Conventions Act (2012) states:
14. Protection of flags, emblems, designations, signs, signals, designs, wordings, identity cards, information cards, insignia and uniforms
(1) Subject to Part 3 of the South African Red Cross Society Act, no person may, without the consent of the Minister, use or display for any purpose whatsoever any of the following:
…
(e) the sign of an equilateral blue triangle on, and completely surrounded by, an orange ground, being the international distinctive sign of civil defence;
(f) any of the distinctive signals specified in Chapter III of Annex I to [the 1977 Additional] Protocol I, being the signals of identification for medical units and transports;
(g) the sign consisting of a group of three bright orange circles of equal size, placed on the same axis, the distance between each circle being one radius, being the international special sign for works and installations containing dangerous forces;
(h) the distinctive emblem of protection of cultural property, namely a shield, pointed below, per saltire blue and white (a shield consisting of a royal-blue square, one of the angles of which forms the point of the shield, and of a royal-blue triangle above the square, the space on either side being taken up by a white triangle);
(i) a design, wording or signal so nearly resembling any of the emblems, designations, signs or signals specified in paragraph … (e), (f), (g) or (h) as to be capable of being mistaken for or understood as referring to one of those emblems, designations, signs or signals, as the case may be; and
(j) such other flags, emblems, designations, signs, signals, designs, wordings, identity cards, information cards, insignia or uniforms as may be prescribed by regulation by the Minister for the purposes of giving effect to the [1949 Geneva] Conventions.
(2) The Minister must give the consent contemplated in subsection (1) in writing and may only give such consent for the purposes of giving effect to the provisions of this Act, the South African Red Cross Society Act and the [1949 Geneva] Conventions.
…
(4) This section also applies to the use outside the Republic of an emblem, designation, sign, signal, design, wording, identity card, identification cards, insignia or uniform contemplated in subsection (1) on any ship or aircraft registered in the Republic.
15. Offences and penalties
(1) Any person who contravenes or fails to comply with section 14 is guilty of an offence and on conviction liable to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.
South Africa, Implementation of the Geneva Conventions Act, 2012, Sections 14(1)(e)–(j), (2) and (4) and 15(1).
Spain
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict … uses improperly the protective or distinctive signs, emblems or signals established and recognized under international treaties to which Spain is a party”.
Spain, Penal Code, 1995, Article 612(4).
Spain
Spain’s Penal Code (1995), as amended in 2010, states:
Anyone who [commits any of the following acts] during armed conflict shall be punished with three to seven years’ imprisonment:
…
4. Improperly using the protective or distinctive signs, emblems or signals established and recognized under international treaties to which Spain is a party.
Spain, Penal Code, 1995, as amended on 23 June 2010, Article 612(4).
Sudan
Sudan’s Armed Forces Act (2007) provides:
Subject to the provisions of the Criminal Act of 1991, shall be punished with imprisonment for a term not exceeding five years, whoever intentionally misuses … insignia of any international, or regional organization, or other insignia enjoying legal protection, the result of such acts being death, or considerable casualty among enemy personnel.
Sudan, Armed Forces Act, 2007, Article 155.
Sweden
Under Sweden’s Emblems and Signs Act (1953), as amended in 1994, “the international distinctive sign of civil defence … may not be used without the permission of the Government or a competent agency authorised by the Government”.
Sweden, Emblems and Signs Act, 1953, as amended in 1994, Section 4.
Sweden
Under Sweden’s Penal Code (1962), as amended in 1998, misuse of the insignia referred to in the Emblems and Signs Act as amended, including the sign of civil defence, and misuse of “other internationally recognized insignia” are crimes against international law.
Sweden, Penal Code, 1962, as amended in 1998, Chapter 22, § 6(2).
Switzerland
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”:
Art. 110
Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
…
Art. 112c
1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:
…
g. makes improper use … of the distinctive emblems provided for by international humanitarian law.
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 110 and 112c (1)(g).
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states under the title “War crimes”:
Art. 264b
Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
…
Art. 264g
1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:
…
g. makes improper use of … the distinctive emblems provided for by international humanitarian law.
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 264b and 264g (1)(g).
Switzerland
Switzerland’s Law on the Protection of the UN Names and Emblems (1961) provides:
1. It is prohibited to use the following signs, communicated to Switzerland through the International Bureau for the Protection of Industrial Property and belonging to the specialized agencies of the United Nations or to other intergovernmental organizations linked to the United Nations:
a. The name of these organizations (in official Swiss languages and in English);
b. Their acronyms (in official Swiss languages and in English);
c. Their arms, flags and other emblems.
2. The prohibition applies similarly to imitations of the signs referred to in paragraph (1).
…
Anyone who, intentionally and in violation of the provisions of the present law, has made use of the names, acronyms, arms, flags and other emblems of intergovernmental organizations referred to in article … 2 … or of any other signs constituting imitation thereof, … [commits a punishable offence].
Switzerland, Law on the Protection of the UN Names and Emblems, 1961, Articles 2 and 7(1).
Switzerland
Switzerland’s Law on the Protection of Cultural Property (1966) states: “The sign of cultural property as a protective sign and the denomination ‘cultural property sign’ may be used only for the purpose of protecting cultural property.”
Switzerland, Law on the Protection of Cultural Property, 1966, Article 19.
The Law punishes
whoever, intentionally and without being entitled to do so, in order to obtain protection of public international law or another advantage, uses the sign of cultural property or the denomination “cultural property sign” or any other sign capable of causing confusion.
Switzerland, Law on the Protection of Cultural Property, 1966, Article 27.
Switzerland
Switzerland’s Law on the Protection of Cultural Property (1966), as amended in 2008, states: “The emblem of cultural property as a sign of protection and the denomination ‘emblem of cultural property’ may only be used for the purpose of protecting cultural property.”
Switzerland, Law on the Protection of Cultural Property, 1966, as amended in 2008, Article 19.
The Law further states:
Any person who, intentionally and without the right to do so, uses the emblem of cultural property or the denomination “emblem of cultural property” or any other emblem or denomination that may give rise to confusion in order to obtain the protection of public international law or any other advantage, is punished with three years’ or more imprisonment or with a monetary penalty.
Switzerland, Law on the Protection of Cultural Property, 1966, as amended in 2008, Article 27.
Switzerland
Switzerland's Law on Civil Defence (2002), as amended to February 2015, states:
Article 68
…
3 Who intentionally:
…
d. misuses the international distinctive sign of civil defence or the identity card of civil defence personnel;
shall be punished with a fine.
Switzerland, Law on Civil Defence, 2002, as amended to February 2015, Article 68(3)(d).
United Kingdom of Great Britain and Northern Ireland
The UK Geneva Conventions Act (1957), as amended in 1995, provides:
Subject to the provisions of this section, it shall not be lawful for any person, without the authority of the Secretary of State, to use for any purpose whatsoever any of the following emblems or designations, that is to say –
…
(d) the sign of an equilateral blue triangle on, and completely surrounded by, an orange ground, being the international distinctive sign of civil defence.
United Kingdom, Geneva Conventions Act, 1957, as amended in 1995, Section 6(1)(d).
United Kingdom of Great Britain and Northern Ireland
The UK Geneva Conventions Act (1957), as amended in 2009, states:
Use of Red Cross and other emblems.
(1) Subject to the provisions of this section, it shall not be lawful for any person, without the authority of the Secretary of State, to use for any purpose whatsoever any of the following … ; that is to say –
…
(d) the sign of an equilateral blue triangle on, and completely surrounded by, an orange ground, being the international distinctive sign of civil defence;
(e) any of the distinctive signals specified in Chapter III of Annex I to the first protocol, being the signals of identification for medical units and transports.
UK, Geneva Conventions Act, 1957, as amended on 2 July 2009, Section 6(1)(d)–(e).
Yugoslavia, Socialist Federal Republic of
Under the Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, “those who misuse or carry without permission … recognized international emblems which are used to mark certain objects in order to protect them from military operations” commit a war crime.
Yugoslavia, Socialist Federal Republic, Penal Code, 1976, as amended in 2001, Article 153(1).
The commentary on the Code states: “The misuse of international emblems is committed, as a rule, during a war or an armed conflict … The aggravated form of this criminal act … exists when the misuse or unauthorized use of international emblems is committed in the war operations zone.”
Yugoslavia, Socialist Federal Republic of, Penal Code, 1976, as amended in 2001, commentary on Article 153.
Zimbabwe
Zimbabwe’s Geneva Conventions Act (1981), as amended in 1996, provides:
Subject to the provisions of this section and of section 7 of the Zimbabwe Red Cross Society Act, 1981, no person shall, without the authority in writing of the Minister of Health, use for any purpose whatsoever any of the following emblems or designations –
…
(d) the sign of an equilateral blue triangle on and completely surrounded by an orange ground, being the international distinctive sign of civil defence.
Zimbabwe, Geneva Conventions Act, 1981, as amended in 1996, Section 8(1)(d).
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.
Burundi
In 2010, within the context of a Training Workshop on Military Criminal Law for Military Judges, the Ministry of National Defence and Former Combatants stated:
The CPM [Military Penal Code (1980)], in article 60, punishes … any person who, in the area of operations of a unit [and] in violation of the laws and customs of war, improperly uses the distinctive signs and emblems defined by international conventions to ensure the respect for persons, objects and places protected by these conventions.
The distinctive signs concerned are:
…
- The sign of civil defence;
- The sign for the protection of cultural property;
- The signs for dams, dykes and stations for the generation of nuclear energy.
Burundi, Ministry of National Defence and Former Combatants, Training Workshop on Military Criminal Law for Military Judges, November 2010, p. 16.
Canada
Upon ratification of the 1977 Additional Protocol I, Canada stated:
In situations where the Medical Service of the armed forces of a party to an armed conflict is identified by another emblem than the emblems referred to in Article 38 of the First Geneva Convention of August 12, 1949, … when notified, … misuse of such an emblem should be considered as misuse of emblems referred to in Article 38 of the First Geneva Convention and Protocol I.
Canada, Reservations and statements of understanding made upon ratification of the 1977 Additional Protocol I, 20 November 1990, § 4.
Israel
At the final plenary meeting of the CDDH, Israel declared:
With regard to Article 36 of draft additional Protocol I [now Article 38 of the 1977 Additional Protocol I], the delegation of Israel wishes to declare that it attaches special importance to the second sentence of paragraph 1. This sentence forbids the misuse of any other protective emblem which has been recognized by States or has been used with the knowledge of the other Party.
Israel, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 116.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states:
Emblems (distinctive sign)
…
Other emblems with a protective function include the white flag for Combatants who wish to parley or surrender, and a blue triangle on an orange ground, as the emblem of Civil defence. Improper use of these emblems is prohibited by law.
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, pp. 18–19.
United Kingdom of Great Britain and Northern Ireland
A training video on IHL produced by the UK Ministry of Defence illustrates the rule that the false use of emblems is forbidden.
United Kingdom, Ministry of Defence, Training Video: The Geneva Conventions, 1986, Report on UK Practice, 1997, Chapter 2.4.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support the principle … that internationally recognized protective emblems … 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.
No data.
No data.
Meeting of Experts on Civil Defence
In a meeting of independent experts organized by the International Civil Defence Organization (ICDO) and the ICRC in 1997,
the importance was strongly emphasized of adopting appropriate national legislation to regulate use of the civil defence emblem and impose penalties for incorrect use and for misuse. It was agreed that the States party to [the 1977 Additional Protocol I] should be reminded of that obligation.
Stéphane Jeannet (ed.), Civil Defence 1977–1997. From Law to Practice, Report of a Meeting of Experts on Civil Defence, ICDO and ICRC, Geneva, 1997, pp. 17 and 18.
Furthermore, “the problem that civil defence activities were wider than those entitled to protection had been raised and care must be exercised to ensure that in wartime the emblem was borne only in the performance of activities entitled to protection under Protocol I”.
Stéphane Jeannet (ed.), Civil Defence 1977–1997. From Law to Practice, Report of a Meeting of Experts on Civil Defence, ICDO and ICRC, Geneva, 1997, p. 64.
According to a survey conducted by the ICDO and the ICRC, 63 per cent of States party to the 1977 Additional Protocol I that replied had a law forbidding the abusive use of the civil defence emblem (the number of replies was not indicated).
Stéphane Jeannet (ed.), Civil Defence 1977–1997. From Law to Practice, Report of a Meeting of Experts on Civil Defence, ICDO and ICRC, Geneva, 1997, p. 76.
No data.
ICRC
According to the ICRC Commentary on the Additional Protocols, “Israel claims that the prohibition of deliberately misusing internationally recognized protective emblems, signs or signals in armed conflicts also applies to the red shield of David”.
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 1557, footnote 40.
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 make improper use (that is to mark other persons and objects than those entitled to) of:
…
(b) the distinctive sign of civil defence;
(c) the distinctive sign of cultural objects;
(d) the distinctive sign of works and installations containing dangerous forces;
…
(f) other internationally recognized distinctive signs and signals (e.g. ad hoc signs for demilitarized zones, for non-defended localities, ad hoc signals for civil defence).
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 407(b), (c), (d) and (f).
No data.
