Misuse of established indicators

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Definition[edit | edit source]

Misuse of established indicators
Misuse-of-established-indicators.svg
Under IHL, parties to an armed conflict are prohibited to make improper use of internationally recognized emblems, signs, and signals, including the distinctive emblem of the red cross or red crescent, the white flag of truce, the protective emblem of cultural property, and the distinctive emblem of the United Nations (UN).[1] Internationally recognized distress signals such as those established by the International Telecommunications Union and the International Civil Aviation Organization are also included in the scope of this prohibition.[2]

Improper use in this context means any use other than that for which these emblems, signs, and signals were intended.[3] For instance, the purpose of the white flag of truce is to communicate an intent to negotiate; therefore, any other use, such as to gain a military advantage over the enemy, would be improper and unlawful.[4] In relation to the distinctive emblem of the UN, improper use refers to any use unauthorized by the UN.[5] The object and purpose of the prohibitions of improper use is to preserve the trust that these indicators inspire.[6]

The relevant rules are absolute in nature, which means that any improper use is forbidden, not merely conduct that is covered by the prohibition of perfidy.[7]

IHL also prohibits the improper use of the emblems of nationality of the enemy during an international armed conflict.[8] In this regard, the exact meaning of “improper use” is unsettled in international law. It is generally accepted that it is forbidden to employ these emblems during combat,[9] although opinion is divided as to whether that covers also the preparatory stages of attacks,[10] or only attacks as such.[11] It is also unsettled whether the prohibition applies to non-international armed conflicts.[12]

In addition, during an international armed conflict, it is prohibited to make use of the emblems of nationality of States not party to the conflict.[13] This final prohibition is broader than others discussed in this box in that it makes any such use unlawful, not merely “improper use”.[14] Similar to the prohibition on the improper use of the emblems of nationality of the enemy, it is unsettled whether the prohibition on the use of the emblems of nationality of States not party to the conflict applies also to non-international armed conflicts.[15]

For the purposes of the two last-mentioned prohibitions, the notion of “emblems of nationality” refers to visual objects that indicate a connection to a State, such as flags, military emblems, insignia or uniforms.[16]

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. Art 38(1)–(2) AP I; ICRC CIHL Study, rules 58–61.
  2. Waldemar A Solf, ‘Article 38: Recognized Emblems’ in Bothe et al (eds), New Rules for Victims of Armed Conflicts (Brill 1982) 242.
  3. ICRC CIHL Study, vol I, 207, 209, 213.
  4. ICRC CIHL Study, vol I, 207.
  5. Art 38(2) AP I.
  6. cf. Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC 1987) 133 para 396 (noting that the system of protection is based on trust); ICRC (ed), Commentary on the First Geneva Convention (CUP 2016) 912 para 2581 (“strict control over who may wear the emblem is designed to ensure trust in the emblem”).
  7. Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC 1987) 448, para 1532.
  8. Art 23(f) Hague Regulations; Art 39(2) AP I; ICRC CIHL Study, rule 62.
  9. Waldemar A Solf, ‘Article 39: Emblems of Nationality’ in Bothe et al (eds), New Rules for Victims of Armed Conflicts (Brill 1982) 244; US DoD Law of War Manual, para 5.23.1.
  10. See, eg, Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC 1987) 466–467 paras 1574–1575; see also Humanitarian Policy and Conflict Research, Manual on International Law Applicable to Air and Missile Warfare (CUP 2013) rule 112(c), commentary para 4 (noting that some experts took the position that any use of enemy uniform for deception purposes is improper, whether before or after an attack).
  11. See, eg, Switzerland, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977) (Federal Political Department 1978) vol XIV, CDDH/III/SR.29, 273–274 para 16 (United States) (“Attempting to regulate activities beyond the infliction of violence, namely an attack, was unnecessary regulation and went beyond the provisions of existing law.”) (emphasis added); Canada, Joint Doctrine Manual: Law of Armed Conflict (2003), para 607(2) (limiting the scope of the prohibition to “while engaging in attacks” and reserving the right to use enemy emblems of nationality to shield, favour, protect or impede military operations); see also Tallinn Manual 2.0, rule 126, commentary para 2 (considering that the extension of the prohibition beyond engagement in attack is not considered to form part of customary international law).
  12. ICRC CIHL Study, commentary to rule 62, at 214 (considering it arguable that the rule should also apply in non-international armed conflicts when the parties to the conflict do in fact wear uniforms); Tallinn Manual 2.0, rule 126, commentary para 1 (considering that the rule applies in both international and non-international armed conflict).
  13. Art 39(1) AP I; ICRC CIHL Study, rule 63.
  14. Humanitarian Policy and Conflict Research, Manual on International Law Applicable to Air and Missile Warfare (CUP 2013) rule 112(d), commentary para 2.
  15. Tallinn Manual 2.0, rule 127, commentary para 2 (noting that the question is unsettled). Compare ICRC CIHL Study, vol I, 219 (considering it arguable that the prohibition applies to non-international armed conflicts as a matter of customary law) with Humanitarian Policy and Conflict Research, Manual on International Law Applicable to Air and Missile Warfare (CUP 2013) rule 112(d), commentary para 3 (considering that the prohibition “does not apply in non-international armed conflict, since there is no neutrality in the legal sense”).
  16. Waldemar A Solf, ‘Article 39: Emblems of Nationality’ in Bothe et al (eds), New Rules for Victims of Armed Conflicts (Brill 1982) 246.

Bibliography and further reading[edit | edit source]