Norma relacionada
Switzerland
Practice Relating to Rule 59. Improper Use of the Distinctive Emblems of the Geneva Conventions
Switzerland’s Basic Military Manual (1987) states:
The distinctive sign (Red Cross, Red Crescent) shall serve, under the control of the military authority, to indicate medical establishments, units, personnel, vehicles and material. They shall not be used for other purposes.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 93.
The manual also states that the “abuse of the emblem or protection of the Red Cross” is a war crime.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 200(2)(b).
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 … 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 further states with regard to the protective signs of the red cross and red crescent:
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 signs, 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.
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
13.1 Behaviour with regard to the wounded, sick and shipwrecked and medical and religious personnel
…
180 Anyone misusing the distinctive emblem will be punished and handed over to the competent military investigation authorities. In such cases, all efforts must be made to ensure the care of the patients.
…
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: transporting ammunition in a medical vehicle …
…
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, §§ 180, 223 and 237. The German language version of the first sentence of § 180 notes: “… will be arrested [“verhaftet”] and handed over to the competent military investigation authorities”.
The Regulation also states that, in application of the principle of distinction, “[s]urveillance posts on the roof of a hospital” can be shot at, explaining: “After prior warning has been disregarded: perfidy, misuse of the distinctive emblem”.
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, § 172.
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’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’s Emblem Law (1954) provides:
The emblem of the red cross on white ground and the words “red cross” or “Geneva cross” shall, with the exception of the cases provided for in the following articles, be used, whether in time of peace or in time of war, only to designate the personnel and material protected by [the 1949 Geneva Conventions I and II], meaning the personnel, units, transports, establishments and material of the medical service of the armed forces, including voluntary sanitary relief of the Swiss Red Cross, as well as the chaplains attached to the armed forces.
…
Anyone who, intentionally and in violation of the provisions of the present law … has made use of the emblem of the red cross on a white ground or of the words “red cross” or “Geneva cross”, or of any other sign or word capable of creating confusion [commits a punishable offence].
Switzerland, Emblem Law, 1954, Articles 1 and 8(1).
Switzerland’s Emblem Law (1954), as amended in 2008, states:
Anyone who intentionally and contrary to the provisions of the present law … has used the emblem of the red cross on white ground or the words “red cross” or “Geneva cross”, or any other sign or word that may lead to confusion,
…
is to be punished with imprisonment or a fine of up to 10,000 Swiss Francs; in less serious cases or if the person in question has acted with negligence, the judge may pronounce a punishment of imprisonment or a fine of up to 1,000 Swiss Francs.
Switzerland, Emblem Law, 1954, as amended in 2008, Article 8(1).
The Law also states that the previously cited provision “applies by analogy to the emblems red crescent, red lion and sun on white ground [and] the emblem of the third Additional Protocol to the Geneva Conventions [2005 Additional Protocol III] … [as well as] to the terms ‘red cross’, ‘red lion and sun’ and ‘emblem of the third Protocol’ or ‘red crystal’”.
Switzerland, Emblem Law, 1954, as amended in 2008, Article 12(1).
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated: “International humanitarian law also limits the conduct of military operations permissible under international law. … Certain methods such as perfidiousness or the abuse of the red cross emblem are excluded.”
Switzerland, Report by the Swiss Federal Council on Private Security and Military Companies, 2 December 2005, Section 5.3.1, pp. 45–46.
Switzerland’s ABC of International Humanitarian Law (2009) states:
Emblems (distinctive sign)
In Armed conflicts recognisable emblems serve above all to protect military and civilian medical installations as well as the buildings of national relief organisations and their personnel from attack (protective function). This protection is guaranteed not by the emblems themselves but is based directly in international law.
…
The Geneva Conventions of 1949 recognise the Red Cross, the Red Crescent and the … Red Lion and Sun (abandoned in 1980) as emblems. The Red Crystal was recognised as an additional emblem in 2005 for use by all States that for religious or other reasons do not wish to make use of the original emblems.
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.
