1. Historical background

The need for an additional distinctive (protective) emblem has its roots in the history of modern international humanitarian law (also called the law of war or the laws of armed conflict). Modern international humanitarian law began with the original Geneva Convention of 1864.Footnote ⁴ This decided that a red cross on a white ground should be the distinctive and uniform sign for army medical personnel and for military ambulances and hospitals. This prescription can be found in all subsequent treaties that amplify and up-date the 1864 Convention. Previously, it was common practice to mark hospitals and ambulances on the battlefield but there was no uniformity in what the mark should be.Footnote ⁵ There is no definitive explanation as to why the red cross was chosen although later Conventions state: ‘As a compliment to Switzerland, the heraldic emblem of the red cross on a white ground, formed by reversing the Federal colours, is retained as the emblem and distinctive sign of the Medical Service of armed forces.’Footnote ⁶

At the same time as the adoption of the original Geneva Convention, what is now the International Red Cross and Red Crescent Movement came into being. The initial resolutions of the Movement, passed in 1863 and thus pre-dating the 1864 Convention, provided that voluntary medical personnel placed under military command ‘shall wear in all countries, as a uniform distinctive sign, a white armlet with a red cross.’Footnote ⁷ Since that time, whilst the emblem remains primarily for the use of military (and now, in time of war, duly authorised civilian) medical personnel and those voluntary medical personnel who work alongside them, the Movement has had a close connection with the emblem by virtue of its historic and continuing association with the Geneva Conventions.Footnote ⁸

2. The red crescent emblem

Soon after the adoption of the red cross emblem, soldiers of the Ottoman Empire took offence because the use of the cross reminded them of the badge of the Crusaders.Footnote ⁹ Thus, as early as 1876, the Turkish government announced that its military medical services would use a red crescent on a white background. Although the International Committee of the Red Cross (ICRC) indicated its preference for a single emblem, the red cross, it acquiesced in the Turkish practice. Later Egypt joined Turkey in the use of the red crescent, and Persia adopted the red lion and sun emblem. This latter emblem is no longer in use though modern-day Iran has reserved the right to use it in future.

In 1929, in an attempt to avoid a multiplicity of emblems, the States Parties to the Geneva Wounded and Sick Convention of that year recognised the red crescent and red lion and sun emblems. In 1949, States were again faced with attempts to introduce further emblems. In particular, Israel wished to have recognition of the red shield of David emblem used by their military medical services. However, the three existing emblems were confirmed in the 1949 Geneva Conventions without any further additions. Officially, only those countries that used these emblems prior to 1949 were permitted to continue the usage but, in practice, there have been no objections when additional countries have decided to use the red crescent. Israel, however, chose to continue use of the red shield of David emblem although this was formally unrecognized.

Distinctive emblems, such as the red cross and the red crescent, serve an important purpose as signs of neutrality and of protection. They are to be used only by officially authorized medical and religious personnel; they signify that these personnel, and transports, establishments and objects marked with the same emblems, must not be attacked, and, as far as possible, these personnel must be assisted in performing their purely humanitarian functions. In simple terms, the red cross and red crescent emblems are intended to provide protection on the battlefield.

3. Background to the red crystal emblem

In recent decades, two particular problems have arisen in respect of the existing emblems. The first is the rise in religious/ethnic conflicts in which there has been a decreased respect for the red cross and red crescent emblems. In at least some cases, they have been identified with religious/ethnic groupings and thus lost their neutral and impartial character.Footnote ¹⁰ This loss has affected not only the parties to the conflict but also peacekeeping and other forces that might be in the region.

A second concern was that some National Societies also had a difficulty using one or the other emblem—a requirement for membership in the International Red Cross and Red Crescent Movement.Footnote ¹¹ To give two examples, the government of Eritrea, because of the ethnic make-up of the country, wished its National Society to use an emblem comprising both the red cross and the red crescent together (the so-called double emblem), while Israel wished to retain the red shield of David.

Consultations began in 1995 to try to find a satisfactory solution to these problems. Two points quickly became clear. The red cross and the red crescent were universally known and it would not be possible to abandon these in favour of a new emblem. However, if there was to be a new additional emblem, it must be entirely free from any religious, national, cultural, ethnic or political symbolism.

The 27^th International Conference of the Red Cross and Red Crescent, a body consisting, inter alia, of all National Societies that are members of the Movement and all States that are parties to the 1949 Geneva Conventions, set up a Joint Working Group to examine this issue in 1999. The United Kingdom was a leading member of this Group and in 2000, a draft Additional Protocol was sent to all States. This Protocol put forward a new additional emblem, the red crystal. Unfortunately, the Diplomatic Conference that was to convene to adopt the Protocol had to be postponed due to renewed conflict in the Middle East. It was not possible to hold the conference until December 2005 when the Additional Protocol including the red crystal emblem was duly adopted.Footnote ¹² The Protocol entered into force on 14 January 2007 and, as at 14^th November 2009, there are 51 States Parties.

4. Status and benefits of the Third Additional Protocol

The Additional Protocol places the red crystal emblem alongside the red cross and red crescent emblems as special symbols of neutrality and protection. All three have exactly the same status under international lawFootnote ¹³ and the Geneva Conventions and United Nations Personnel (Protocols) Act 2009 will have the effect of ensuring that the same is applicable under national law. In addition, the Act will give the same protection to the red crystal emblem against misuse as applies to the other emblems. Use will only be permitted with the authority of the Secretary of State. This is discussed later.

The red crystal emblem will provide two main benefits:

• • Improved protection: in cases where protection may be enhanced, the medical and religious personnel of the British armed forces will be able to use the red crystal emblem on a temporary basis (or indeed the red crescent) in preference to the red cross.Footnote ¹⁴ This will be the same, mutatis mutandis, for any country that has become a party to Additional Protocol III. Members of the International Red Cross and Red Crescent Movement may also make temporary use of the red crystal emblem in exceptional circumstances and to facilitate their work.Footnote ¹⁵

• • Greater universality: in so far as the Movement is concerned, it will enable National Societies of States such as Eritrea and Israel to become full members of the Movement, thus contributing to the universality of the Movement. Magen David Adom in Israel has already joined the Movement. The National Society of Eritrea is not yet a full member.

The Third Additional Protocol to the 1949 Geneva Conventions is designed to increase the protection given to the sick and wounded on the battlefield and those who minister to them by providing an additional emblem which may be used in situations where the existing emblems may be thought to carry political or other controversial connotations. This will apply to British armed forces when operating in such circumstances.

5. The legislative provisions

The Act is short, with a majority of the provisions giving effect to the Third Additional Protocol, by amending the Geneva Conventions Act 1957.Footnote ¹⁶ The relevant provision of the Third Additional Protocol is article 6, entitled ‘Prevention and repression of misuse’. Article 6(1) requires the States parties to give the third Protocol emblem (also called the ‘red crystal’Footnote ¹⁷) and designation the same legal protection against misuse as already exists for the red cross and red crescent emblems and their designations. Article 6(2) provides for prior users of the third Protocol emblem (the red crystal). It follows the more flexible regime established for the red crescent emblem.Footnote ¹⁸ Under article 6(2), States Parties may permit prior users to use the third Protocol emblem or an imitation thereof, ‘provided that such use shall not be such as would appear, in time of armed conflict, to confer the protection of the Geneva Conventions and, where applicable, the 1977 Additional Protocols.’ Article 6(2) does however prohibit use by persons who claim the right to use the third Protocol emblem or an imitation after the Protocol was adopted.

Section 1 of the Geneva Conventions and United Nations Personnel (Protocols) Act amends the relevant sections of the Geneva Conventions Act 1957 accordingly. Among other matters, this has the following consequences: use of the red crystal emblem and of designs closely resembling the red crystal emblem is made subject to prior official authorisationFootnote ¹⁹; unauthorised use is a criminal offenceFootnote ²⁰; the Secretary of State has the power to make regulations conferring general authority for use of the red crystal emblem or regulating the use of the red crystal emblemFootnote ²¹. The following points deserve special mention.

(a) Perfidious use of the red crystal emblem

The grave breach provision in the Geneva Conventions Act 1957 is extended to include the perfidious use of the red crystal emblem.Footnote ²² Under section 1(3) of the 2009 Act, a grave breach of the Third Additional Protocol is defined as ‘anything which for the purposes of Article 6 of the protocol constitutes the perfidious use of the emblem specified in section 6(1)(f) of this Act.’ Section 6(1)(f) specifies:

It is worth noting that the effect of the above is to make it a grave breach to use perfidiously either the red crystal emblem on its own or the red crystal emblem in combination with other emblems (as permitted by article 3 of the Protocol for use as an indicative sign). This may be said to go further than might have been envisaged by the drafters of the Third Protocol but as explained below, this possible expansive interpretation is no bad thing.

Perfidy is prohibited under article 37(1) of 1977 Additional Protocol I and under article 85(3)(f), perfidious use, in violation of article 37, of the red cross or red crescent emblem is a grave breach of the Protocol. The term ‘perfidious’ is not defined, although the term ‘perfidy’ is. There does not appear to be any other definition or judicial interpretation of the term ‘perfidious’ and so one is entitled to have regard to the definition in article 37(1) in deciding its meaning. On that basis, the key question is whether the use of the emblem would involve ‘inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.’

In general one assumes that in most cases the perfidious use of the emblem will involve the use of the red crystal—or the red cross or the red crescent—as such and without adornment. However, one can imagine scenarios where using the red crystal emblem in an indicative manner could constitute a perfidious use of the emblem. Perhaps a better view would be that, in those cases where the red crystal is used perfidiously, it would not matter whether the perfidious use was in circumstances where it was being used in an indicative manner or not. It is a protective sign and the sign would be being used in a manner that would fall within article 37(1) of Additional Protocol I, namely purporting to accord protection. Put differently the red crystal emblem will still be a protective sign within the meaning of article 85(3)(f) of Additional Protocol I, regardless of how it is being used at the time.

This potential difficulty has not arisen before because, unlike the red crystal, neither the red cross nor the red crescent can incorporate another emblem or combination of emblems. They are protected emblems in their own right under both international and national law. However, with the red crystal, under Additional Protocol III, it can also involve ‘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’ (article 3(1)(b), Additional Protocol III). This refers to the red shield (star) of David, which is not generally recognised as a protective emblem under international and national laws.

An alternative approach would have been to have had two different descriptions of the red crystal emblem in the legislation: one for the purposes of the grave breach provision (section 1 of the Geneva Conventions Act 1957 (as amended)), referring to the red crystal simpliciter, and one for the purposes of general emblem misuse (section 6 of the said 1957 Act), referring to the red crystal on its own or in combination with other emblems. However, this would have been more complicated.

In our view, the text as enacted is acceptable. It catches a perfidious use of the red crystal emblem where it is being used in conjunction with another emblem or emblems. Even if it may be said to create a slight illogicality in reference to the grave breach provision, it ensures that the UK is adequately covered in relation to ordinary misuse cases. It would be better to have a possibly over-extensive interpretation of the grave breach provision than risk arguments on the general misuse provision, which is where the real risk is likely to arise. The former may be dealt with if necessary by prosecutorial discretion.

(b) Protection of the designation ‘Red Crystal’

As noted previously, the additional distinctive emblem has two designations (names): ‘Red Crystal’ and ‘third Protocol emblem’. The former was agreed at the 29^th International Conference of the Red Cross and Red Crescent in 2006 (see footnote 17), while the latter is the designation which appears in the text of the Third Additional Protocol. It is very positive that both designations are protected in the 2009 Act. This protection applies both with respect to general cases of misuseFootnote ²³ and to prior users.Footnote ²⁴ Article 6(2) of the Third Additional Protocol does not refer to prior users of the designation. However, as noted in the Commentary to the Protocol, ‘there is no logical reason justifying the establishment of different legal regimes for the prior use of the emblem and that of its designation, which is equally protected.’Footnote ²⁵

1. Historical background

The 1994 United Nations Convention on the Safety of United Nations and Associated PersonnelFootnote ²⁶ was negotiated against the backdrop of a large expansion in the number and scope of peace operations carried out by the United Nations at the end of the Cold War. The traditional peacekeeping role was replaced by interventions between warring parties. The result was a commensurate increase in casualties as the local forces sought to impede the role being played by United Nations forces. This culminated in 202 United Nations military personnel being killed in 1993 alone.

The Convention itself was agreed in six weeks and was designed to give a degree of legal protection to United Nations personnel, their premises and vehicles. In particular, attacks on them and threats of attack were made international criminal offences.Footnote ²⁷ The United Kingdom ratified the Convention on 6 May 1998, following the enactment of the United Nations Personnel Act 1997.Footnote ²⁸

However, the Convention was limited in a number of ways, in particular in relation to the type of operations to which it applied. Article 1(c) of the Convention read as follows:

It follows that there are two distinct types of operation, those where the Convention applies automatically (‘[w]here the operation is for the purpose of maintaining or restoring international peace and security’) and those where it requires action by the Security Council or General Assembly before it applies (where ‘there exists an exceptional risk to the safety of the personnel participating in the operation’). There has never been a declaration by either body in relation to any operation and as a result there has been growing criticism that the scope of the Convention is too limited. The United Nations Secretary-General himself joined in the criticism, referring in particular to the United Nations Special Mission to Afghanistan (UNAMA) as a mission where there was clearly an exceptional risk.Footnote ²⁹ The Secretary-General recommended that the Convention should apply to all United Nations operations and that the element of risk should not be a condition for the applicability of the Convention. In 2001, initial steps were taken by the General Assembly to re-examine the scope of the Convention. An Ad Hoc Committee was established, followed by a Working Group but momentum was increased in August 2003 following the bombing of the United Nations Headquarters in Baghdad which killed 20 United Nations employees including the Special Envoy to Iraq. A further 160 people were injured. A draft Protocol was submitted in November 2005 as a new Optional Protocol to the Convention. This was adopted by consensus on 8 December 2005 as the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel. However, the Protocol did not go as far as the Secretary-General had recommended. It added two new categories of operations where the Convention would automatically apply. Article II(1) of the Protocol states that the parties shall:

This would exclude emergency humanitarian assistance operations established by autonomous organizations within the United Nations system or by the Specialized Agencies. Furthermore, during the negotiations, a number of States sought to distinguish between humanitarian operations in response to natural disasters and other relief and peacebuilding operations. As a result, an ‘opt-out’ was included in article II(3) of the Protocol which provides as follows:

The Protocol will come into force thirty days after twenty-two States have become Parties. As at 14 November 2009, the number was 19 and so the Protocol is likely to come into force in the near future.Footnote ³⁰

c. Commencement and territorial extent

The Act will come into force on such day as the Secretary of State may by order appoint.Footnote ³⁴ An Order was made on 14 October 2009, stating that section 1 of the Act ‘shall come into force on 5 April 2010.’Footnote ³⁵ The Third Additional Protocol will come into force for the United Kingdom on 23 April 2010, being six months after deposit of the instrument of ratification.Footnote ³⁶ This slight discrepancy in dates is normal UK practice: by bringing the relevant domestic law into effect before the treaty is in force internationally, the UK is assured of meeting its international obligations. No order has yet been made to bring into force section 2 of the Act which amends the United Nations Personnel Act 1997.

Like the texts of the 1949 Geneva Conventions and their 1977 Additional Protocols, the text of Additional Protocol III is inserted as a Schedule to the Geneva Conventions Act 1957.Footnote ³⁷ Also like earlier Geneva Conventions Acts, the provisions of section 1 on the emblem and the Schedule of the 2009 Act may be extended to the Channel Islands, Isle of Man and British Overseas Territories.Footnote ³⁸ The provisions of the Act extend to the whole of the UK. As far as Scotland is concerned, the Act relates only to reserved matters.Footnote ³⁹