Offences of Misuse of Emblems in Armed Conflicts

By Bakampa Brian Baryaguma

[Dip. Law (First Class)–LDC; Cert. Oil & Gas–Mak; LLB (Hons)–Mak]

bakampasenior@gmail.com; www.huntedthinker.blogspot.ug

October 2022

1.                  Introduction

An emblem is a symbol or device that represents something.^[1] Emblems must be distinctive so that they are easily recognized. Under article 8 (l) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977 (commonly known as Additional Protocol I to the Geneva Conventions of 1949 but hereinafter referred to as “Additional Protocol I”) a, ““distinctive emblem” means the distinctive emblem of the red cross, red crescent or red lion and sun on a white ground^[2] when used for the protection of medical units and transports, or medical and religious personnel, equipment or supplies.”^[3] Emblems are intended to be universal, neutral and distinctive signs of protection, used and recognized by everyone.^[4]

International humanitarian law relies on the use of certain emblems to identify and protect certain personnel, installations, services and equipment in armed conflicts.^[5] Thus, in terms of uses, emblems are protective and indicative.^[6] Used protectively, emblems serve as a visible sign in armed conflict of the protection accorded to the entity concerned.^[7] Used indicatively, emblems are employed to identify the protected entity.^[8]

Emblems in armed conflicts are provided under the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (commonly known as the Geneva Convention I), Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (commonly known as the Geneva Convention II), Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (commonly known as the Geneva Convention IV) and their Additional Protocol I. Under Article 39 of the Geneva Convention I, emblems should be displayed on the flags, armlets and on all equipment employed in the Medical Service, under the direction of the competent military authority.

2.                  Types of Emblems used in Armed Conflicts

The following emblems are recognized by the Geneva Convention I (that regulates the conduct of armed conflicts) and the Additional Protocol I:

1.                  the red cross on a white ground^[9] – recognized under Article 38 of the Geneva Convention I as the distinctive sign of the medical service of armed forces;

2.                  the red crescent^[10] – recognized under Article 38 of the Geneva Convention I;

3.                  the emblem of the United Nations – recognized under Article 38 (2) of Additional Protocol I;

4.                  the flag of truce – recognized under Article 38 (1) of Additional Protocol I;

5.                  the protective emblem of cultural property^[11] – recognized under Article 38 (1) of Additional Protocol I;

6.                  the emblems of nationality – recognized under Article 39 of Additional Protocol I. These are flags or military emblems, insignia or uniforms of neutral or other states not parties to the conflict or even those belonging to adverse parties; and

7.                  the red crystal – adopted by governments in 2005 as an additional protective emblem devoid of any national, political or religious connotation.^[12]

3.                  Prohibition of Misuse of Emblems in Armed Conflicts

Misuse of emblems is defined in international law as any use of the emblem not expressly authorized by international humanitarian law, which limits the use of the emblem to certain entities and/or persons.^[13] The Geneva Convention I and the Additional Protocol I prohibit misusing emblems in armed conflicts. The following are examples of prohibited misuse.

1.                  Article 44 of the Geneva Convention I prohibits the use of the emblem of the red cross on a white ground and the words “Red Cross”, or “Geneva Cross”, either in time of peace or in time of war, except to indicate or to protect the medical units and establishments, the personnel and material protected by the Convention and other Conventions dealing with similar matters.

2.                  Under Article 37 of Additional Protocol I, the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other states not parties to the conflict is prohibited as acts of perfidy.

3.                  Under Article 38 (1) of Additional Protocol I, it is prohibited to make improper use of the distinctive emblem of the red cross,  red crescent or of other emblems, signs or signals provided for by the Geneva Conventions or by the Protocol itself.

4.                  Further, Article 38 (1) of the Protocol prohibits deliberate misuse in an armed conflict of other internationally recognized protective emblems, signs or signals, including the flag of truce and the protective emblem of cultural property.

5.                  Article 38 (2) of Additional Protocol I prohibits making the use of the distinctive emblem of the United Nations, except as authorized by that Organization.

6.                  Article 39 of Additional Protocol I provides prohibitions relating to emblems of nationality. Clause (1) thereof prohibits the making use, in an armed conflict, of the flags or military emblems, insignia or uniforms of neutral or other states not parties to the conflict. Clause (2) thereof prohibits the making use of the flags or military emblems, insignia or uniforms of adverse parties while engaging in attacks or in order to shield, favour, protect or impede military operations.

4.                  Offences of Misuse of Emblems in Armed Conflicts

Misuse of emblems in armed conflicts is an offence under international humanitarian law.

Under article 85 (3) (f) of Additional Protocol I, the perfidious use of recognized emblems which causes death or serious injury to body or health constitutes a grave breach of the Protocol and is a war crime under clause (5) of the article.

Misuse of emblems is also a war crime under Article 82 of the 1998 Rome Statute of the International Criminal Court (hereinafter “the Rome Statute”) that stipulates war crimes.

Clause (2) (b) of article 82 concerns, “… serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law …” that constitute war crimes, including acts of, “Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury,”^[14] and “Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.”^[15]

Clause (2) (e) (ii) of article 82 concerns, “… serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law …” and includes acts of, “Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law”, therefore constituting a war crime.

Under article 77 (1) of the Rome Statute, a person convicted of misusing emblems in an armed conflict is liable to imprisonment not exceeding 30 years or life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. Under clause (2) thereof, in addition to imprisonment, the International Criminal Court may impose additional penalties of a fine and forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.

5.                  Conclusion

The purpose of humanitarian law is ensuring the display of more humanity in armed conflicts by protecting the lives and dignity of victims of armed conflict and other situations of violence and providing them with assistance. Distinctive emblems enable this objective by guaranteeing protection to neutral or rescue personnel on the battlefield. But emblems can be misused to achieve selfish benefits in warfare; hence the criminalization and punishment of their misuse.

References

1.                  A.S. Hornby, A.P. Cowie and A.C. Gimson, Oxford Advanced Learner’s Dictionary of Current English (1983), at 285.

2.                  It should be noted that the red lion and sun emblem on a white ground was discarded in favour of the Red Crescent effective 4 September 1980 when the Islamic Republic of Iran adopted the latter in lieu and place of the former. Iran was the only country to use the red lion and sun emblem after inheriting it from the defunct Persian Empire which had adopted the red lion and sun emblem as its own protective sign and was formally recognized by governments in 1929.

3.                  Medical personnel of armed forces are the historical beneficiaries of emblems in armed conflicts. But gradually, religious personnel, journalists on dangerous professional missions and independent international observers emerged as beneficiaries too.

4.                  International Committee of the Red Cross, ‘Emblems (Red Cross, Red Crescent & Red Crystal)’ (2022). Accessed online at https://casebook.icrc.org/glossary/emblems-red-cross-red-crescent-red-crystal, on 10 July 2022, at 04:40 hrs.

5.                  Ibid.

6.                  Ibid.

7.                  Ibid.

8.                  Ibid.

9.                  Fondly referred to as “the heraldic emblem,” this was the first emblem to come into being in 1864, after a decision of the governments attending the diplomatic conference which adopted the First Geneva Convention in that year, to the effect that a clear neutral sign was needed on the battlefield to protect medical staff and facilities. Those governments opted for a red cross on a white background, the exact reverse of the flag of Switzerland, as a compliment to Switzerland for its neutrality. The resulting symbol had the advantage of being easily produced and recognizable at a distance because of its contrasting colours. See ibid.

10.              This was adopted by the Ottoman Empire as its protective sign, serving the same purpose as the red cross, during the Russo-Turkish war, just over a decade later after the 1864 conference that adopted the red cross. Nevertheless, the Ottoman Empire still recognized and respected the red cross. See ibid.

11.              Article 16 of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention provides for a distinctive emblem marking cultural property. Clause (1) of article 16 describes the form of the emblem, stating as follows: “The distinctive emblem of the Convention shall take the form of a shield, pointed below, persaltire 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).” Clause (2) thereof provides that, “The emblem shall be used alone, or repeated three times in a triangular formation (one shield below) …”.

12.              Since the 1990s there had been concern about respect for the neutrality of the red cross or red crescent in certain difficult conflicts. In 1992 the then president of the International Committee of the Red Cross and Red Crescent made public calls for an additional emblem consonant with popular demand. This resulted into creation of the red crystal emblem. See International Committee of the Red Cross, supra note 4.

13.              International Committee of the Red Cross, ‘Misuse (of the emblem)’ (2022). Accessed online at https://casebook.icrc.org/glossary/misuse-emblem, on 10 July 2022, at 04:52 hrs.

14.              Paragraph (vii) thereof.

15.              Paragraph (XXIV) thereof.