THE THIRD ADDITIONAL PROTOCOL TO THE GENEVA CONVENTIONS – THE BIRTH OF THE RED CRYSTAL EMBLEM

Mireille Hector*
 
1.  INTRODUCTION
 
Few symbols have attained the worldwide recognition of the red cross[1] emblem. Historically, this emblem has signified the fundamental principle of international humanitarian law (IHL) which dictates that those who no longer take part in hostilities due to illness, injury or death should be cared for and protected. Those persons taking on this task are to be equally protected and may not be attacked. The red cross emblem was adopted specifically for this purpose, as a neutral sign for signifying aid to wounded soldiers in the First Geneva Convention[2] of 1864. Since its adoption, however, controversies arose over the emblem, leading to the recognition of other emblems in the course of time – most notably the red crescent. At the end of the year 2005, a Diplomatic Conference accepted yet another emblem through the adoption of a Third Protocol Additional to the Geneva Conventions.
 
This paper explores the historical background of the protective emblems as well as the process leading up to the adoption of the latest additional emblem. In addition, the key features of the instrument that incorporates this emblem, the Third Additional Protocol to the Geneva Conventions, are highlighted.
 
 
2.  HISTORICAL BACKGROUND OF THE DISTINCTIVE EMBLEMS
 
In describing the history of the distinctive emblems, a logical place to start is the battle of Solferino, which took place in 1859 in the context of the Italian War of Unification. Henri Dunant, a Swiss businessman, witnessed this battle by accident and was struck by the enormous human suffering and lack of care for the 45.000 affected soldiers on the battlefield. Together with the local villagers, he tried to organize care for all these wounded, sick and deceased soldiers, but their efforts were vastly inadequate because of the large-scale number of victims. Feeling this inadequacy in the face of so much human suffering caused great despair to him. Upon return to Geneva, Dunant wrote a book entitled “A Memory of Solferino”[3] in which he wrote down his experiences and put forward two ideas. First, he proposed the establishment of voluntary national relief organizations that would be able to effectively provide for the care of wounded soldiers in times of armed conflict. Second, he proposed the conclusion of an international treaty that would provide for a binding obligation to facilitate and protect such humanitarian relief.
 
When his book was published in 1862, Dunant undertook lobbying among the major European powers to obtain support for his ideas. As a result, in 1863 the first International Conference took place in which 14 governmental delegates participated as well as members of the newly founded International Committee for the Relief of Military Wounded, the later International Committee of the Red Cross. In this Conference, the establishment of national relief organizations was instituted in 10 different resolutions. In one of them, reference was made to the emblem that the voluntary nurses would wear: “They shall wear in all countries, as a uniform distinctive sign, a white armlet with a red cross”.[4] In order to give binding effect to the protection of the wounded and those assisting them, a Diplomatic Conference was convened in 1864. This conference adopted the First Geneva Convention[5] that also contained a specific reference to the distinctive emblem in article 7: “A distinctive and uniform flag shall be adopted for hospitals, ambulances and evacuation parties. … An armlet may also be worn by personnel enjoying neutrality… Both flag and armlet shall bear a red cross on a white ground.”
 
The idea of putting a red cross sign on a white background as the distinctive sign of protection may have various origins. Historically, a white flag in wartime had been associated with the desire to negotiate or surrender and was thus prohibited from being attacked under customary law. By adding a red cross emblem to the white background, the special protected status of wounded soldiers and medical staff was made even more clear. The fact that the red cross on a white background stems from a reversal of the Swiss flag – at that time associated with its longstanding state of neutrality - is often given as the most likely explanation of the exact design.[6] While the proceedings of the meetings do not indicate the exact rationale behind the choice of the red cross on a white ground, there is also no reference found that religious considerations influenced this choice. Rather, a true effort seemed to have been made by those involved to find a universally acceptable protective sign. At the same time, with hindsight one may wonder whether the persons involved in this process were at all able to understand the perception that other parts of the world had of the red cross symbol.
Despite the fact that many countries ratified the First Geneva Convention without any reservation, in the following decades the non-religious nature of the red cross emblem was questioned by some countries.
 
At the start of the Russian Turkish war in 1876, the Ottoman Empire communicated to the Swiss government - the depository of the First Geneva Convention – that while respecting the red cross emblem, they themselves would not use the emblem because it gave offense to Muslim soldiers. Rather, they would make use of the red crescent sign on a white background. Thus, the red crescent sign was used by both the armed forces and the national aid society for the duration of the two-year conflict. After this temporary use of the red crescent, other countries such as Egypt and Iran also started to use and seek approval for other signs of protection in addition to the red cross.[7]
 
In 1906, the issue of the emblem was raised at the Diplomatic Conference revising the First Geneva Convention. Here, heated debates as to the origin of the red cross emblem took place, eventually resulting in a public confirmation that no religious significance was attached to the red cross emblem. Article 18 of the revised Convention[8] thus states that “[o]ut of respect to Switzerland the heraldic emblem of the red cross on a white ground, formed by the reversal of the federal colors, is continued as the emblem and distinctive sign of the sanitary services of armies”.  However, in their signature or accession to the Convention, Iran, Turkey and Egypt attached a reservation to this article.
 
After the First World War, at the 1929 Diplomatic Conference, the international community eventually gave in to the desire of these countries to have their emblems officially recognized. As a result, in the revised First Geneva Convention both the red crescent and red sun and lion were accepted as equal distinctive emblems. At the same time, in order to avoid further proliferation, the Conference decided that those signs were only permitted with regard to the countries already using them.[9]
 
This recognition of two more distinctive emblems did, however, not settle the discussion of the emblem. With the 1949 revision of the Geneva Conventions in the aftermath of the Second World War, various proposals were put forward.[10]  First, a Dutch proposal aimed at adopting one new emblem for all. Second, a suggestion was made to return to the red cross emblem as the single distinctive emblem of protection. Third, Israel proposed to have an additional emblem recognized, namely the red star of David. All three proposals were rejected in the course of the debates. However, Israel attached a reservation to its instrument of ratification to the effect that it would continue to use the red star of David as its distinctive sign. In the decades to follow, Israel again tried to obtain official status for this emblem, without any success.
 
In 1980, the Iranian government officially waived its right to use the red lion and sun emblem, while at the same time reserving its right to return to this emblem should new emblems be recognized. In effect, this meant that as of 1980 only two emblems, namely the red cross and red crescent emblems, were used. 
 
In the course of the 1990’s, however, discussions on the emblem and the desire to find a long lasting solution to this issue started again. In this context, the idea of an additional emblem free of any national, political or religious connotation was born.
 
2.1 Why yet another emblem?
 
The reasons given for the need for the adoption of such an additional emblem were twofold. First it was pointed out that an emblem without any religious, ethnic or political connotation would provide for more protection in the field. Indeed, recent times have shown a worrisome declinewith respect to the existing emblems. Calculated attacks on humanitarian aid workers, including Red Cross and Red Crescent staff and property, have shocked the world in the past decade[11]. This despite the fact that both under customary and conventional law, attacking those who wear or are protected by a distinctive emblem of the Geneva Conventions and Additional Protocols constitutes a war crime.[12] In situations such as Iraq and Afghanistan, an additional emblem without connotations might provide better protection for those risking their lives to help others.
 
The second reason that pointed to the adoption of an additional emblem was the fact that in light of the statutes of the International Red Cross and Red Crescent Movement, only National Societies that use one of the recognized emblems can join this International Movement. Because a number of States were unable to choose (between) one of the two officially recognized emblems, the National Societies in these countries had been unable to become  members of the International Movement. This hampered the universal nature of the Movement, which has adopted the notion of “universality” as one of its seven Fundamental Principles.
 
2.2 The road towards the adoption of the Third Additional Protocol
 
In 1992, the President of the International Committee of the Red Cross publicly called for a fresh examination of the issue. Wide acceptance of a possible solution, the acknowledgement that no State or National Society would be forced to give up its existing emblem and the requirement that a new emblem would have to be devoid of any adverse connotations were central elements in his ideas. A number of years later, the Standing Commission of the Red Cross and Red Crescent[13], under the chairmanship of HRH Princess Margriet of The Netherlands, established a special working group in 1995 in order to provide for a “comprehensive and lasting solution to the question of the emblem”. After intense consultations, in early 2000 a subsequent Joint Working Group, made up of States and components of the Movement, requested the ICRC to draw up the text of a draft Additional Protocol. Later that year, the Swiss government convened a Diplomatic Conference aimed at adopting this draft Third Additional Protocol. However, in light of the political turmoil connected with the start of the Second Intifada in the Middle East, the Diplomatic Conference was postponed. With the relations between Israel and the Palestine Authority looking more promising in early 2005, the Swiss government decided to call once again for the holding of a Diplomatic Conference to look at the adoption of the Third Additional Protocol. Although the situation in the Middle East did not move forward very much, a highly positive development was the conclusion of a memorandum of understanding and an operational agreement between the Palestine Red Crescent Society and Magen David Adom, the Israeli national aid society. In this agreement, a number of cooperation issues were touched upon. At the Diplomatic Conference, which took place from 6 until 8 December 2005, a majority of the participating governments called for the adoption of the draft Additional Protocol by consensus, without any changes to the text of the draft Protocol. It was considered appropriate and in line with the history of IHL instruments, that such an important humanitarian issue be agreed on by everyone. However, the countries from the Organization of the Islamic Conference (OIC) issued a number of amendments to the text and supported Syria in its call to address the situation in the Golan Heights. Unfortunately, after lengthy negotiations it became clear that there was no possibility for adopting the draft Third Additional Protocol by consensus. Rather, in the late hours of the night of 8 December, the Third Protocol was adopted by majority vote[14]
 
After the adoption of the Third Additional Protocol, a number of issues still needed to be settled by an International Conference[15], which took place in June 2006. During this meeting, the Conference adopted a resolution[16] in which it decided:
 
-  to amend the Statutes of the Movement in light of the newly adopted Third Protocol.
-  to formally adopt the name “red crystal” as the official name of the new additional emblem.
-  to admit the Palestine Red Crescent Society to the Movement on an exceptional basis, even though it did not fulfill one of the official criteria for admission[17].
 
 
3.  ANALYSIS OF THE THIRD PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS
 
With its 17 articles, the Third Protocol is a relatively short protocol, dealing entirely with the additional emblem in all its aspects.
 
3.1 Preamble
 
The Preamble outlines the general desire of the State Parties that the adoption of the additional emblem will enhance the protective value and universal character of the IHL provisions relating to the distinctive emblems. It stresses that the existing distinctive emblems do not have any religious, ethnic, racial, regional or political significance. At the same time, the Preamble recognizes the difficulties that certain States and National Societies may have with the use of these emblems. Also, the determination of the ICRC and the Federation to retain their current names and emblems is noted. 
 
3.2 Respect for the protocol and equal status of emblems
 
The Protocol, as is the case with the Geneva Conventions, entails a duty on State Parties to undertake to respect and ensure respect for the treaty under all circumstances.  It affirms that the additional emblem supplements, rather than supplants, the existing emblems. Thus, all distinctive emblems are all on an equal footing. The Protocol describes the new emblem as ‘a red frame in the shape of a square on an edge on a white ground’. The Protocol itself does not give a name to the emblem, but only refers to it as the “third Protocol emblem”. As stated to earlier, the name “red crystal” was adopted during the 2006 International Conference.
 
3.3  Who is entitled to use the red crystal emblem?
 
Because of their special nature and origin, distinctive emblems may only be used in conformity with the Geneva Conventions and Additional Protocols. In this context, Article 44 of the 1949 First Geneva Convention makes a distinction between the protective use and the indicative use of the emblems. The protective use of the emblem is invoked during situations of armed conflict, where the emblem protects specific groups, vehicles and structures. Because of its protective purpose, the distinctive emblem used in such circumstances should be displayed as large as possible.  The emblems can also be used for indicative purposes, during times of peace and in wartime, to signify that activities, persons and objects are part of a National Society. Used indicatively, the emblem used should be relatively small in size in order to avoid confusion with the protective use of the emblem.
 
As the conditions for use are identical to those for the other distinctive emblems, the red crystal emblem can also be used as both a protective and an indicative sign. When taking the general rules applicable to the emblems, as well as those incorporated in the Third Protocol,
one can distinguish the following potential users of the red crystal emblem.
 
 
3.3.1  Protective use of the red crystal emblem
 

  • The medical and religious personnel of a State Party that decides to use the third Protocol emblem as its distinctive emblem may use the red crystal for protective purposes.[18]
  • The medical staff and units from recognized National Societies may use the protective emblem when rendering medical assistance in times of armed conflict. This is also the case for other recognized voluntary aid societies. [19]
  • The medical and religious personnel of State Parties that have chosen for another distinctive emblem may temporarily use the red crystal for protective purposes, in situations “where this may enhance their protection[20].
  • The International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies, and their duly authorized personnel, may temporarily use the red crystal emblem “in exceptional circumstances and to facilitate their work”[21].
  • The medical services and religious personnel participating in operations under the auspices of the United Nations may use the protective red crystal emblem, provided that the participating States agree to this.
 
3.3.2 Indicative use of the red crystal emblem
 
  • For indicative purposes, National Societies of a State Party that decides to use the third Protocol emblem as its distinctive emblem may use the emblem for indicative purposes, in conformity with national legislation. With regard to the indicative use of the red crystal, the Protocol offers alternative ways in which the new emblem can be used. Generally, National Societies may choose to incorporate another emblem, or combination thereof, inside the red crystal. The choice for such an incorporation is limited to the existing distinctive emblems[22], any combination thereof, or “another emblem which has been in effective use by a High Contracting Party and was the subject of a communication to the other High Contracting Parties and the International Committee of the Red Cross through the depositary prior to the adoption of this Protocol”. In practice, only the red star of David fulfills this last condition.[23] 
  • National Societies which use any of the other distinctive emblems may use the red crystal on a temporary basis, provided that this is in accordance with national legislation and limited to “exceptional circumstances” and necessary to “facilitate their work”[24].
 
3.4 Prevention and repression of misuse and dissemination
 
The Protocol stipulates that the provisions of the Geneva Conventions and Additional Protocols concerning the prevention and repression of misuse of the distinctive emblems equally apply to the red crystal emblem.[25] In particular, this obligation points to the prevention and repression of the perfidious use of the red crystal in times of armed conflict, which constitutes a war crime, and the use of the emblem by unauthorized third parties such as companies and individuals. With regard to prior users of the red crystal emblem, or an imitation thereof, the Protocol allows State Parties to permit the continuation of such use, on the basis of two conditions. First, the right to such use had to be acquired before the adoption of the Protocol (i.e. before 8 December 2005) and, second, the use of the red crystal or imitation thereof should not be of such a nature that it appears to confer the protection of the Geneva Conventions and Additional Protocols in times of armed conflict. 
 
State Parties should undertake to disseminate the Third Protocol as widely as possible within their respective countries, both in time of armed conflict and in time of peace. In particular, State Parties are asked to include the study of the Protocol in their programs of military instruction and to encourage the study of the Protocol by the civilian population.[26] 
 
With regard to these obligations, State Parties may be assisted by their National Society, as incorporated in the Statutes of the Red Cross and Red Crescent Movement[27].
 
3.5 Ratification and entry into force
 
The Protocol stipulates that it will enter into force six months after two instruments of ratifications or accessions have taken place. The first two instruments of ratification were deposited in 2006 by Norway and Switzerland, thus allowing the Protocol to enter into force on January 14, 2007. 
 
 
4. CONCLUSION
 
Around the world there is great hope that the controversies surrounding the distinctive emblems have finally been put to rest by the adoption of Third Protocol establishing an additional emblem. This red crystal emblem is free of adverse connotations of a political, national, ethnical or religious nature. It is hoped that the political atmosphere that unfortunately surrounded the adoption of the Protocol will in practice not hamper the universal acceptance and protection of the red crystal.

In the process of adopting the Protocol and amending the statutes of the Movement, the National Societies of Israel and Palestine were able to conclude a humanitarian agreement and simultaneously be admitted as new members of the Movement.  The fact that this could take place amidst one of the most long lasting and heated conflicts in the world is an important victory for the power of humanity and one step further in realizing Henri Dunant’s dreams.

--------
 


* M.A.J. Hector, J.D., LL.M. Mireille Hector is Head of the International Humanitarian Law Division of the Netherlands Red Cross. She participated in the 2005 Diplomatic Conference on the adoption of the Third Additional Protocol, as well as the subsequent International Conference in 2006. The views expressed in this article are of a personal nature and are not intended to reflect the position of the Netherlands Red Cross.  See also the Belgian Red Cross annual publication IHR in de Kijker (IHL in Focus).
[1] In this article, the term ‘red cross’ is used in lower case when it refers to the emblem, while capital letters are used to refer to the Red Cross institutions. The same applies to the other distinctive emblems.
[2] Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Geneva, 22 August 1864, on www.icrc.org.
[3] Published by ICRC, Geneva, 1986, ref. 0361, available on www.icrc.org.
[4] Compte rendu de la Conférence internationale réunie à Genève les 26, 27, 28 et 29 octobre 1863 pour étudier les moyens de pourvoir à l’insuffisance du service sanitaire dans les armées en campagne, second edition, ICRC, Geneva, 1904, page 117.
[5] Convention on the Amelioration of the Condition of the Wounded in Armies in the Field, Geneva 22 Augustus 1864.
[6] F. Bugnion, Towards a Comprehensive Solution to the Question of the Emblem, revised fourth edition, ICRC, April 2006, page 9.
[7] In addition to the red crystal, this was also the case for the red lion and sun emblem that had been adopted by Iran as its distinctive sign.
[8] Convention on the Amelioration of the Condition of the Wounded in Armies in the Field, Geneva, 6 July 1906, on www.icrc.org.
[9] Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, 27 July 1929, on www.icrc.org. Art. 19 states: “As a compliment to Switzerland, the heraldic emblem of the red cross on a white ground, formed by reversing the Federal colors, is retained as the emblem and distinctive sign of the medical service of armed forces. Nevertheless, in the case of countries which already use, in place of the red cross, the red crescent or the red lion and sun on a white ground as a distinctive sign, these emblems are also recognized by the terms of the present Convention.”
[10] Final Record of the Diplomatic Conference of Geneva of 1949, vol. II A, page 89–92.
[11] For example, two Iraqi employees of the International Committee of the Red Cross were killed in an attack on the organization's office in Baghdad on 27 October 2003. Red Cross and Red Crescent staff members were also killed due to targeted attacks in the Democratic Republic of Congo, Burundi , Chechnya, Palestine and Afghanistan in recent times.
[12] See for example the Rome Statute on the International Criminal Court, article 8.2.b.xxiv, which lists as a war crime “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”.
[13] The Standing Commission is one of the permanent bodies of the International Red Cross and Red Crescent Movement. The Standing Commission’s raison d´être is to act as the trustee of the International Conference of the Red Cross and Red Crescent, which is the highest deliberative body of the Movement, meeting every four years. Between Conferences, the Standing Commission provides strategic guidance in the interest of all components of the Movement.
[14] The Third Protocol was adopted by 98 votes in favor and 27 votes against. Prior to this, the OIC proposed amendments were defeated by 72 against and 35 in favor.
[15] The International Conference is the supreme deliberative body for the Movement. At the International Conference, representatives from National Societies, the International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies meet with representatives of States Parties to the Geneva Conventions. Together they examine and decide upon humanitarian matters of common interest and any other related matters. Its mandate, composition and function is regulated by Section III of the Statutes of the International Red Cross and Red crescent Movement.
[16] Resolution 06/IC/Resolution 1, adopted on 22 June 2006, on www.rcstandcom.info. Again, due to the fact that there was no possibility for a adoption by consensus, the resolution had to be voted on and was won by 237 votes in favor and 54 votes against. 
[17] Namely the condition that requires a National Society to be “constituted on the territory of an independent State… ”, as incorporated in article 4.1 of the Statutes of the International Red Cross and Red Crescent Movement.
[18] Protocol III, article 1.2 states that the Protocol applies in the same situations as the Geneva Conventions and 1977 Additional Protocols provide for with regard to the distinctive emblems.  Article 38 of the First Geneva Convention refers to the use of the distinctive emblems by the medical services of the armed forces.
[19] 1949 First Geneva Convention, articles 26 and 44.
[20] Protocol III, article 2.4.
[21] Protocol III, article 4.
[22] The Protocol refers to the red cross, red crescent and red lion and sun emblems. The latter reference relates to the reservation that was made by Iran when waiving its right to use the red lion and sun. It then reserved its right to return to this emblem should new emblems be recognized.
[23] The Third Protocol, by way of article 3.2, also allows a “National Society which chooses to incorporate within the third Protocol emblem another emblem in accordance with paragraph 1 above, … , in conformity with national legislation, [to] use the designation of that emblem and display it within its national territory.” This provision thus permits the Israeli National Society to use the red shield of David as its sole emblem within Israel, as it has historically done. 
[24] Protocol III, article 3.3.
[25] Protocol III, article 6.
[26] Similar provisions can be found in the Geneva Conventions and 1977 Additional Protocols.
[27] Article 3 of the Movement Statutes stipulates that National Societies “disseminate and assist their governments in disseminating international humanitarian law… They also cooperate with their governments to ensure respect for international humanitarian law and to protect the distinctive emblems recognized by the Geneva Conventions and their Additional Protocols”.