in any quartage 260 of 488
126
173. In some countries the use of the words "Red Cross" and of the emblem are not, in fact, limited to the purposes referred to in paragraphs 169 to 172 above. In many countries civil hospitals use the emblem; and Red Cross shoes have been produced and sold in another country, which had to have their description changed to Golden Cross shoes for import into the United Kingdom. The American Red Cross is responsible for the canteen services of the United States forces and for much welfare work, functions which are not contemplated by the 1929 Red Cross Convention as appropriate to the "Red Cross". It is probably true to say that the countries of the British Commonwealth have generally interpreted their obligations to limit the use of the words and emblem of the "Red Cross" more strictly than many other signatories to the 1929 Red Cross Convention. My Committee did not think that any change in this attitude is desirable, even though it may not always be followed elsewhere.
•
174. This strict view of the permissible uses of the Red Cross naturally results in the United Kingdom examining critically any proposals to extend the authorised use of the Red Cross: lest such extension might weaken the effectiveness of the protection given to the wounded and sick in time of war. Sir John Kennedy, Vice-Chairman of the British Red Cross Society, who has given long and careful study to this and other matters of interest to the Society, draws a distinction between the "long range" protection given by the Red Cross and what he calls "contact" protection.
175. "Long range" protection can be given only by large flags or painted signs, which are visible from a distance; and with the increasing range of artillery and other methods of bombardment, the protection given by this use of the Red Cross to military hospitals, etc. is tending to diminish. Nevertheless it is still of great value and nothing should be done, which might give unscrupulous foes any exouse for disregarding these protective signs, when they can be seen.
176. "Contact" protection is a very different matter. This operates when fighting approaches or even surrounds a medical unit or establishment; and strict observance of the conditions for the use of the Red Cross will go far to maintain the respect and immunity from attack, which it is designed to give. On the other hand, any relaxations from the strict limitation of its use to protect only medical units and establishments (because of their care for the wounded and sick of both sides in a battle) might diminish the respect, which it would command in the midst of battle.
177. It was with these considerations in mind that my Committee examined the extensions of the authorised use of the Red Cross emblem on land recommended by the 1947 Geneva Conference of Government Experts viz:-
(a) by Voluntary Aid Societies in time of war (the 1929
Red Cross Convention allows its use by them only in time of peace) provided that
1
"the size of the emblem and the conditions of its use are such that it cannot, in time of war, be considered as conferring the protection of the present Convention";
(b) by the organs of the International Red Cross, at all times,
subject to the same proviso as in (a) above;
(0)
in time of peace, to mark ambulances (i.e. civil ambulances) as well as aid stations;
(d) to mark 18an hospitals in time of,
hospitals.
in order to agent italy 488
35 -
1178. My Committee recommend that the-United Kingdom delegation to
a future International Conference:
179.
(a) should discourage any extension of the gener
Page 26110tRed Cross emblem, except as the general use
controlled and defined conditions;
der strictl
(J. R. G. C. /... (48)5, Item 38(a))
(b) should not oppose the recommendations of the 1947 Geneva Jonference of Government Experts regarding the "descriptive" use of the Red Cross emblem an civil ambulances in peace, and by the organs of the International Red Cross and by National Red Cross Societies in war, as well as in peace;
(U. R. G. C./M (48)5, Item 38(b)) -
(c) should support any proposals for strictly limiting
the size of the emblem, when used for "descriptive" purposes;
(a)
(U.R.G.0./1(48)5, Item 38(c))
should agree to the protective" use of the Red Cross emblem by civil hospitals in war-time, subject to reasonable conditions of control being devised (see paragraph 180 below).
(C.R. G../M(48)5, Item 40)
In connection with the recommendation in paragraph 178(b) above, my Committee invited the Board of Trade representative to recommend to his Department, as responsible for administering the Geneva Convention Act of 1937, that any extension of the "descriptive" use of the Red Cross should not be allowed to extend the use of "colourable imitations" of the Red Cross.
180.
With reference to the recommendation in paragraph 178(d) above, my Committee further recommend that, to qualify to use the Red Cross emblem for protection, an establishment
181.
(a) must be recognised as a civil hospital by the State;
(b) must be organised to afford permanently care to
wounded and sick, or to maternity oases;
(0)
must have the consent or the military authorities to use the Red Cross emblem;
(a) must not be used to commit acts harmful to the enemy;
(e) must exhibit in the building a certificate, in a
prescribed form, from the state;
(f) should be subject to inspection by representatives of the Protecting Power of any adverse belligerent and/or of the International Red Cross Committee in order that they might satisfy themselves that the conditions laid down in the Convention were being observed.
(C. K. G. C. /k. (48)6, Item 43)
There was no suggestion at the 1947 Geneva Conference of Government Experts that the "protective" use of the Red ross in war-time should be extended to civil ambulances (see paragraph 177(c) above) as well as to civil hospitals; but this may be proposed at a future Conference.
102.
Finally I should record, that, in making the recommendation in paragraph 178(b) above, my Committee recognise that certain "descriptive" uses by National Red Cross societies in war-time 1.8. Page 269sofuse buildings) might tend to weaken the "contact" protection (see paragraph 176 above) given by the emblem to hospitals, dressing stations; but they came to the
· 36 -
conclusion that the risk of this was not likely to be serious.
Cross
127
183. Use of the Red Cross Emblem at Sea. The puge of the Red Cr flag and emblem by hospital ships is authorised by Article 5 of the Tenth Hague Convention of 1907 (for the Adaptation of the Principles of the Geneva Convention to Maritime Warfare) and Article 6 limits their use to such ships only. The new Maritime Convention proposed to replace the Tenth Hague Convention (see paragraphs 8 and 15 above) is considered in paragraphs 444 449 below and Appendix B; but certain extensions in the use of the Red Cross are proposed under the Prisoners of War Convention.
-
184. These extensions would recognise uses covered by special agreements between all belligerents concerned during the Second World war to give inmunity from attack, under certa conditions, to:-
(a) ships set aside exclusively for the carriage of relief
supplies, mail etc. for prisoners of war (see
paragraphs 126 to 136 above);
(b) ships carrying out the exchange of personnel repatriated under Article 68 of the 1929 Prisoners of War Convention and Article 12 of the 1929 Red Cross Convention.
These ships were allowed to be painted white with Red Crosses on sides and decks in a similar manner to hospital ships; and they all carried International Red Cross Committee delegates as superoargo guaranteeing that they were conforming to the conditions of safe conduct agreed between the belligerents.
185. My Committee recommend that the United Kingdom delegation to a future International Conference
(a)
should agree to the "protective" use of the Red Cross flag and emblem at sea by ́
(i) hospital ships of such minimum size as is recommended by the Haritime Sub-Committee (see paragraphs 35 and 36 of Appendix B)
(ii) ships set aside for the carriage exclusively of relief su plies, mails etc. for prisoners of war etc., provided they are sailing under safe conducts from the belligerents;
(iii) ships carrying out exchanges of repatriable
personnel;
(b) should oppose the use of the Red Cross flag or emblem
by any rescue ships or craft not recognised as hospital ships (see paragraph 7 of Appendix B)
(C. R. G. C. /L(48)5, Item 39)
My Committee assume that whatever markings are ultimately adopted for hospital ships (see Appendix B, paragraph 38 ), similar markings will be authorised for other ships referred to in (a) above.
The protection of 186. Use of the Red Cross emblem on Aircraft. medical aircraft has been considered in paragraphs 139 to 143 above,. and subject to fulfilment of the conditions recommended in paragraph 143(b) above, there is clearly no objection to the use of the Red
The use of medical Cross markings on a white ground on such aircraft. aircraft at sea would be subject to similar conditions (see Appendix B, paragraph 46)
187.
In addition, the International Red Cross Committee seek. authorisation for aircraft set aside for the carriage exclusively of prisoner of war mail and that of the Central Agency (see Article 79 or the age 13 and 1488 War Convention), and phinformation concerning
-48 prisoners of war, identity cards, etc. should be authorised carry Red Cross markings on a white ground and be immune from attack.
Subject
- 37 -
again to the conditions recommended in paragraph 143 (b, above, my Committee see no ground for objection.
188. Page:263fe48 been observed in paragrage:263f48&en on the ground, aircraft so marked would be conspicuous from the air, and this would negative any camouflage precautions on the airfield concerned. For this reason, it is unlikely that belligerents will desire to have aircraft so marked using their airfields. Nevertheless my Committee came to the conclusion that it would be undesirable for the United Kingdom to oppose, in principle, proposals to authorise the use of the Red Cross emblem by aircraft fulfilling the conditions recommended in paragraph 143(b) above.
189. My Committee therefore recommend that the United Kingdom delegation to a future International Conference should not oppose the use of the Red Cross emblem on a white ground by medical aircraft or by aircraft reserved exclusively for any of the purposes mentioned in paragraph 187 above, provided that they fulfil the conditions recommended in paragraph 143(b) above.
(C. R. G. C. AM (48)4, Item 33
C.R.G. C.M(48)5, Item 39(b))
190. Enoiroled Zones and Hospital Zones. The 1947 Geneva Conference of Government Experts recommended new provisions for the Red Cross Convention that
(a) "local arrangements may be concluded between belligerents
for the removal of wounded and sick from a besieged or encircles zone, and for the passage of medical personnel and equipment bound for the said zone";
(b) belligerents may conclude particular agreements for
the creation of hospital zones, to ensure better protection for the wounded and sick of armed forces assembled therein, to the exclusion of any utilisation for military purposes".
191. The first of the recommendatioris, referred to in paragraph 190 above can be regarded as an extension of the provision in Article 3 of the 1929 Red Cross Convention that "whenever circumstances permit, a local armistice or a suspension of fire shall be arranged to
The permit the removal of the wounded remaining between the lines". 1947 Geneva Conference of Government Exerts recommended that the words after "removal" should be amended to read "and transport of wounded", as more in aecord with the conditions of modern warfare.
192. The proposals made to the 1947 Geneva Conference of Government Experts would have made arrangements for passage in and cut of encircled zones and for the creation of hospital zones almost obligatory. It was argued that military hospitals already enjoy complete protection, so long as they are not used to commit acts harmful to the enemy; and that a hospital "zone" was, in principle, no more than a number of hospital units side by side. The difficulties were pointed out, such as
193.
(a).
the impossibility of preventing entry by unauthorised persons;
(b) the difficulty of removing all military objectives;
(c) the difficulties inherent in using such zones if removed from normal lines of communication;
(a) the enforcement of any prohibition against aircraft
flying over such a zone.
As a result of the heavy criticism the proposals ultimately emerged as recommendations in the form set out in paragraph 190 above. Both Brgha Bethsave and dependent on specPaloach cofg48gments. The former goes little further than was, in fact, agreed during the later days of the Second World War for "pcokets" of enemy resistance in Belgium and France.
· 38 -
CQS
194. In connection with the proposed Civilian Convention a proposal 2 has been made to establish Safety Zones for the protection of civilians, children, expectant mothers, mothers of young children, and old people.
This propose 9438
was poferred to the Chiefs of Staff by the rope office.
The Chiefs of Staff considered that the application of this proposal to the United Kingdom or in enemy territories is neither practicable nor acceptable from the military point of view: they pointed out that it might even embarrass the defence arrangements for the United Kingdom; and were also of the opinion that the scheme would offer no practicable advantages in other British Administered Territories.
195. My Committee were not aware of the reference to the Chiefs of Staff when they agreed the recommendations set out in paragraph 197 below. Whereas an obligation to establish Safety Zones may be clearly unacceptable, the proposal to include permissive provisions as set out in paragraph 190 above was not brought to the notice of the Chiefs of Staff. To reject, out of hand, the permissive provisions set out in paragraph 190(b) above would be difficult, I suggest, in any Inter- national Conference; I would emphasise that, so far as the United Kingdom is concerned, such provisions could never be brought into operation without a particular agreement to which we should be a party.
196.
I recognise that if my Committee's recommendation in paragraph 197 below is accepted, it will be difficult to resist similar permissive provisions, subject to "particular agreements", in the Civilian Convention; but the considerations which influenced my Committee do not appear to have been brought to the notice of the Chiefs of Staff before they reached the conclusions referred to in paragraph 194 above.
197. My Committee recommend that, subject to the approval of the Chiefs of Staff, the United Kingdom delegation to a future International Conference should not oppose the recommendations of the 1947 Geneva Conference of Government Experts set out in paragraph 190 above. (C. R. G. C./M(48)4, Item 30)
198. Civilian help for Wounded and Sick. Article 5 of the 1929 Red Cross Convention permits military authorities to appeal to "the charitable zeal of the inhabitants" to collect and care for the wounded and sick, an echo of the first Red Cross Convention of 1864, which sprang from Henry Dunant's experiences at the Battle of Solferino in 1859. This provision clearly contemplates that the wounded and sick will be those for whom the military authorities are responsible, and the i.e. of the same forces, or prisoners of war in their hands; Article provides for the civilian assistance to be given under the direction of the military authorities.
199. The 1947 Geneva Conference of Government Experts, was invited to expand the existing provision to make them apply also to "enemy belligerents" in occupied territory and to cover specifically "enemy wounded or sick". A long discussion took place at Geneva on this latter provision because it was proposed that the obligation on the military authorities "to allow and encourage the civilian population, even in occupied regions, to collect and care for enemy wounded and sick" should be accompanied by a condition that the wounded and sick "shall not be assisted to elude the possible control of the occupying authority.
200. Conscious of the services rendered to allied aircrews and other esoaping members of allied forces by the peoples of the countries of Western Europe occupied by the Germans during the Second World War, the United Kingdom delegation resisted the inclusion of this or any similar condition. They argued that a Convention for the protection of wounded and sick was not an appropriate place in which to lay on the civilian population of an occupied country an obligation to refuse to help
and that to insert such their friends to escape from their enemies; a condition would enable an Occupying Power to claim that to give such help, to a wounded or sick soldier or airman, would, under Internator 14 Law4&&nstitute a war crime. The Occupying Power might make such action a crime against its own decrees but that was hardly a reason for giving such a decree the support of an International
39
C.O.S.
Convention.
201. The counter-argument was that occupying authorities could not be expected "to allow and encourage" care for enemy wounded and sick, unlessPthey 2009laf 48 return, have some guarangtha65bf88uld not operate to their disadvantage.
•
202. Eventually the 1947 Geneva Conference of Government Experts recommended that the obligation on the military authorities should be subject to a condition that enemy wounded and sick
"shall not be withheld from the eventual control of national
or occupying authorities"
the United Kingdom delegation reserving its attitude.
203. My Committee came to the conclusion that, unless the Chiefs of Staff consider desirable, provisions in the Red Cross Convention on the lines set out in paragraphs 199 and 202 above, the United Kingdom delegation to a future International Conference should oppose any provision which would include the condition set out in paragraph 202 above, or any similar condition; and they recommend accordingly. (C. R. G. C./M(48)4, Item 30(a))
204. Finger-Prints. The 1947 Geneva Conference of Government Experts favoured the carrying by all persons liable to be made prisoners of war, of an identity card, if possible of a standard shape, size and lay-out; but there was strong pressure from the United States and the majority of other delegations to include, on such identity cards, finger or thumb prints and for such prints to be taken by the Detaining Power (as is the practice of the United States) as a means of identifying prisoners of war. The other questions arising on identity documents are considered in paragraph 419 below.
205. The proposal to use finger-prints as a means of identification raises a major question of policy for the United Kingdom. My Committee were advised by the Home Office representative that, in this country, the taking of finger prints is associated by the public with their use for recording and identifying criminals; and for this reason it would be inadvisable to undertake an obligation to use them on the identity cards of persons liable to be taken prisoner of war.
206. My Committee were also informed, however, that during the Second World War merchant seamen from the United Kingdom carried identity cards bearing their finger-prints, because without such prints they would not have been able to land in the United States.
207. In these circumstances my Committee recommend that the United Kingdom delegation to a future International Conference should press that any provision regarding the use of finger-prints to assist the
and that any identification of prisoners of war should be optional; standard identity card should accordingly provide for finger-prints or signature. (C. R. G. C.(48)6, Item 46(b)(viii))
208. War Crimes and Sanctions. In paragraph 99 above I have referred to the strong pressure, at the 1947 Geneva Conference of Government Experts, to exclude any prisoner of war suspected of a war crime from the protection of the Prisoners of War Convention. Very strong pressure similarly developed from most other delegations to write into the Convention provisions describing certain breaches of them as war crimes, and obliging signatory Powers to take action against the persons concerned. The United States, French, Netherlands and other delegations insisted that there must be specific provision for the punishment of those responsible for serious violations of the Conventions.
209. The main argument, used at the 1947 Conference in support of this attitude, was that those concerned with the practical application of these Conventions (e.g. Commandants of Prisoner of War Camps) should payee brought 48gtheir notice, in the Conventions to effective, that violations are war crimes to be visited with punishment; punishment ought to be certain, and it should therefore be obligatory
and that,
15, that
de
40
for all signatory Powers to take the necessary legislative measures to that end. This attitude reflects the strong public opinion on this subject in their countries, resulting from the treatment of their nationals by the German and/or the Japanese authorities during the Second World War. The subsequent War Crime trials have led, not unnaturally, to a demand for explicit legislation on the subject; this has found opportunity for open expression in the discussions on the Conventions now under consideration, which are the first inter- national efforts after the Second World War to review laws relating to the conduct of war.
210. The United Kingdom delegation at the 1947 Conference argued, inter alia
(a)
(b)
(0)
(a)
that Conventions safeguarding the treatment of Wounded and Sick and Prisoners of War (and also civilians) were not suitable for international penal provisions;
that breaches of these international Conventions were, in any case, war crimes and no new provision was needed to establish them as such;
and
that to specify some breaches only as war crimes, might give accused persons ground for argument, by implication, that any other breach of these Jonventions was, therefore, not a war crime: in other words the effect might be to narrow the field of war crimes under International Law;
that any provisions regarding penalties for breaking these Conventions ought to form part of an international penal code, and not be dealt with, without regard to the penalties regarded as appropriate for other war crimes.
129
211. These arguments did not prevail, and, the United Kingdom delegation. reserving its attitude, the 1947 Geneva Conference of Government Experts recommended inclusion in the Red Cross Convention of a new Article proposed by the United States delegation in the following terms:-
"Any wilful violation of the present Convention, leading to the death of persons protected by its provisions, to grave ill-treatment of the said persons, or serious damage to hospital buildings and equipment, shall be considered as a war crime. The responsible persons shall be liable to appropriate penalties.
The high Contracting Parties undertake to insert in their penal and military legislation provisions for the punishment of any infractions of the stipulations of the present Convention"
and that corresponding Articles be embodied in the other Conventions.
+
212.
The situation thus created has been examined at length by the Foreign Office, and they and I have also discussed it with represent-
We are unanimous atives of the Home Office and the Treasury Solicitor. that the inclusion of an Article on the lines of that recommended by the 1947 Conference (see paragraph 211 above) would be unfortunate, and might even have some results contrary to those intended by it. addition to the arguments advanced by the United Kingdom delegation to the 1947 Conference (see paragraph 210 above), other objections are summarised in paragraphs 213 215 below.
-
In
213. A prisoner of war is completely at the mercy of the Detaining Power: to include in a Convention which will be posted up in all camps, a provision which might lead prisoners of war, who feel that Some Artigle of the Convention is not being observed, to threaten their Camp Commandan? With Anishment as a war criminaPagis for their
treatment rather than the reverse.
214.
To include such an Article might make some Powers reluctant to
- 41
{
J
:
become signatories to the Convention. Moreover these humanitarian Conventions would be the first International treaties to mention war crimes and theyo
yogre the wrong type of treaty into whit Page introduce suon legislation for the first time. Toospecify in them certain violations as war crimes would be to imply that other violations were not, and this would be to narrow and not to strengthen existing International Law on war crimes.
215. The jurisprudence of war crimes should be discussed and settled outside these Conventions, the main purpose of which is quite different. It might be possible to draw up a list of penalties appropriate to particular violations; but unless and until that can be done (and in doing it regard should clearly be had to the penalties appropriate to other war crimes) it would be wise to avoid any reference to penalties in these Conventions.
216. Nevertheless, it may prove impossible to persuade other delegations at a future International Conference to this view; and we have, therefore, sought for a formula, which might satisfy the feelings behind the pressure for some specific reference to war crimes, whilst avoiding definite legislation.
217. My Committee therefore recommend that the United Kingdom delegation to a future International Conference
(a)* should resist, if possible, any reference being made in
the Prisoners of War, Red Cross and Maritime Conventions to war crimes or punishments for breaches of the Conventions;
(b)
•
if (a) is unsuccessful, should propose an Article on the following lines:-
in While the responsibility for the due observance of this Convention rests with the High Contracting Party, individuals who commit acts contrary to the law of nations are personally answerable for such acts, and neither the official functions with which they may be invested nor orders from superior authorities are a defence in regard to the commission of such acts";
(c) failing (a) or (b), should be prepared to agree to an
Article dealing with war crimes, provided that it makes reference only to the penalties attaching to breaches of International Law generally, and does not appear to define either war crimes or their precise consequences.
(C.R. G. C./M(48)9, Item 61)
218. This is likely to be one of the most difficult subjects for the United Kingdom delegation to any future International Conference; and it is most desirable that their instructions should state, as clearly as possible, the limit of concession to which they are authorised to go.
219. Questions common to the Military and Civilian Conventions. the questions considered in this part of the Report the following arise also on the proposed Civilian Convention:-
(a) Civil War (paragraphs 30 to 36 above)
(b) Intangibility (paragraphs 55 to 61 above)
(c) Joint Responsibility for transferred Prisoners (or
Internees) paragraphs 72 to 80 above)
(a) Substitute for Protecting Power (paragraphs 144 to
148 above)
No comments yet.
Private notes are available after approval.