Tuesday, April 18, 2006

Distinctive Emblems Post No 4: The Protection of the Distinctive Emblems and the Gaming Industry

After Post No. 1 of this serial Post addressed the current developments concerning the distinctive emblems in international humanitarian law, Post No. 2 described the function of said emblems in international humanitarian law, and Post No. 3 turned to the adoption of the third additional protocol, the establishment of the Red Crystal as a new distinctive emblem, Post No. 4, the last Post in this series, will now address the protection of said symbols and the action taken by some Red Cross Societies against the gaming industry (see Post No. 1 for a summary on the situation).

Concerning the protection of the distinctive emblems and their uses through legal norms, one could perhaps derive from the existence of two different functions that there is also a distinction to be made between different abuses of said emblems.
An abuse of the distinctive emblem affecting its first function, the protective one, is by far the more serious one. In armed conflicts, those abuses may gravely endanger human lives as it would undermine the guarantee the emblem grants. Therefore it is obvious that the distinctive emblems have to be especially protected in armed conflict situations. Accordingly, Art. 38 et seq. of the First Geneva Convention of 1949 give a detailed account of who is entitled to protection under international humanitarian law and thus to wear the Red Cross etc. in international armed conflicts. Additionally, the treacherous misuse of that emblems equates to a prohibited perfidy in war with the corresponding consequences (see inter alia Art. 38 of the First Additional Protocol of 1977), and a war crime according to Art. 85 para. 3 lit. f of the First Additional Protocol.
But what norms are protecting said emblems in peacetime, where “only” the second function of the emblems is concerned, and why. According to Art. 44 of the First Geneva Convention, use of the distinctive symbols is allowed only as it is provided for in the Convention, in wartime as well as in peacetime situations. This includes, according to para. 2 of Art. 44, the peacetime use for all operations of the national Red Cross societies, while Art. 53 of the First Geneva Convention explicitly prohibits any use of the distinctive emblems by individuals, societies, firms or companies either public or private not entitled thereto. Art. 54 of the First Geneva Convention obliges states to take the measures required to prevent and repress at all times any misuse of the emblems. The most relevant norms read:

Art. 53. The use by individuals, societies, firms or companies either public or private, other than those entitled thereto under the present Convention, of the emblem or the designation " Red Cross " or " Geneva Cross " or any sign or designation constituting an imitation thereof, whatever the object of such use, and irrespective of the date of its adoption, shall be prohibited at all times.…Art. 54. The High Contracting Parties shall, if their legislation is not already adequate, take measures necessary for the prevention and repression, at all times, of the abuses referred to under Article 53

Already Art. 27 of the 1906 Geneva Convention required states parties to enact legislation criminalizing the unauthorized peacetime use of the Red Cross emblem with very clear words:

Art. 27. The signatory powers whose legislation may not now be adequate engage to take or recommend to their legislatures such measures as may be necessary to prevent the use, by private persons or by societies other than those upon which this convention confers the right thereto, of the emblem or name of the Red Cross or Geneva Cross, particularly for commercial purposes by means of trade-marks or commercial labels.

In compliance with these provisions, there are many national laws protecting the emblem. As I know from the letter of the CRC, in Canada these norms are Art. 44 and 53 of Schedule 1 of the Geneva Conventions Act, Section 4 of the Canadian Red Cross Society Act and Sections 9 (1) (f), 10 and 11 of the Canadian Trade-marks Act. In the United States, 18 U.S.C. 706, which protects the Red Cross symbol as a trademark and makes an illegal use of the emblem punishable by six months in jail and a fine of up to $ 500, fulfils the international requirements. In Germany, § 125 OWiG makes the abuse of the Red Cross emblem a summary offence for which a fine can be imposed.

What are the reasons behind those norms? As they are also protecting the emblems from the dangerous misuse in a wartime environment, mainly misuses that are below the threshold of a perfidy, the necessity for protective norms is obvious. Concerning peacetime abuses it seems that there was and is a fear that an unlimited use of the emblems even in a peacetime environment could question their undoubted protective value in the wartime situation, that if the Red Cross would be a too common sight the necessary respect would diminish. All protective norms aim to guarantee that the Red Cross is only connected with the Red Cross movement and the protection it grants in armed conflict situations.
The ICRC Commentary on the First Geneva Convention concerning Art. 53 for example says:

“B. ' Indicatory sign '. -- Although the first care must be to safeguard the protective sign, misuse of the purely indicatory sign must also be relentlessly put down, as it does serious harm to the Red Cross movement [p.385] and diminishes the prestige of the emblem. The public, seeing the red cross on articles that have nothing to do with any form of charitable work (9), may fail, in other circumstances of the most vital importance, to recognize its inviolable character.”

( Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, pp. 384 et. seq.)

One possibly could question this fear, saying that the universal knowledge of the Red Cross adds to the protective value. In my opinion however, the Red Cross has to be protected and the norms have their value. The Red Cross was invented as a protective sign and even if the indicative function was added later in order to identify those connected with the Red Cross movement, the protective function remains the main idea behind the symbol and the norms protecting it. Besides, that peacetime misuses could also undermine the protective use as such; the indicative function should therefore be seen as a historical consequence of the protective one. The Red Cross Societies are meant to be a main actor in providing humanitarian aid in wartime situations as it was seen as the first organisation to assist the medical services of the states armed forces, as such explicitly mentioned in Art. 44 of the First Geneva Convention (see also Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, p. 328 et seq.). Additionally, the Societies have the duty to promote the humanitarian thought in peacetime environments inter alia through educational measures in humanitarian law. Those functions make it totally rational to let the Red Cross Societies use the emblems even in peacetime situations in order to connect them with their humanitarian mission and in order to connect their humanitarian work with the symbol, to promote the protective use of the symbol even in a peacetime environment, but only as an exception.
There are other exceptions for uses of the Red Cross Symbol as marking the position of first-aid posts intended exclusively for the free treatment of sick or injured civilians or marking motor ambulances, but all exceptions also have a use for the protective function of the emblems.
As again the commentary on the First Geneva Convention puts it:

“But, at the same time, the advantages must be kept in mind. The red cross has become, in people's minds, the universal symbol of impartial aid to all who suffer, and the welfare work done by the Red Cross, under the cover of the emblem, amongst the population as a whole, benefits by the standing the emblem has acquired as a symbol of immunity. Conversely, esteem for the Red Cross heightens the prestige of the protective sign.”

(Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, p. 330)

Unlike the use of the Red Cross by the Gaming Industry, these are strictly regulated and controllable exceptions.

While the opinions on said question may differ, the cited norms, however, are in force. The states obviously are, or were, of the opinion that the Red Cross has to be protected even in a peacetime environment and I think, without getting to positivistic, this is the law as it is.

In the case of the gaming industry one may therefore conclude that the CRC and the BRC are only acting within a legal framework set up by the states. To some degree one could even say that it is the duty of the Red Cross Societies to protect the distinctive emblems.

What is wrong is the often-heard assumption that the Red Cross is only protected against economical uses (i.e. on products), which is not the case in computer games; every misuse is prohibited, as should become clear from the cited norms.

The only question therefore is why the Red Cross Societies are acting only now. I think that the Red Cross Symbol is used in computer games for more then, I don’t know, 16 years now. It is quite understandable that the gaming community is curious about possible connections with the computer game bashing that is politically en vogue today. Too much violence, far too much sex etc., are often heard accusations today (I am not a gamer, nor a total absentee so I am nearly neutral).

The first question that has been raised in that context is why the Red Cross Societies are only acting against the Gaming Industry and not also against, for example, the movie industry or the producers of health kits using the Red Cross.
In answering this question, it has to be said that the Red Cross Societies are not only acting against the gaming industry. As one can see already from a brochure of the Canadian Red Cross the Societies also act against misuses in the health and retail sector, in catalogues, books and magazines, on commercial vehicles etc. To see how far-reaching the activities of the Red Cross Societies are, one should read the article  “Protecting the Emblems in peacetime: the experiences of the British Red Cross Society” by Michael A. Meyer (International Review of the Red Cross, no 272, pp. 459-464) where the author describes the procedure of the protection and some important cases, for example the British Red Cross acting against misuse in the James Bond film “The Living Daylights” or in the health service campaign by the Labour Party (both in the late 1980`s).

The other question, why the Red Cross Societies are acting now is not that easily answered. I have to admit that I do not exactly now how active the Red Cross Societies currently are in acting against peacetime misses of the distinctive emblems.
I can say, however, after some research, that the Red Cross Societies show more activity than in recent years in other cases than that of the Gaming Industry also. In Germany, for example, the Red Cross Society is currently acting against the Rote Hilfe e.V., a private association devoted to paramedical activities around left wing political demonstrations, where, it is thought, a lack of help from the established societies exists. The Rote Hilfe e.V. is using a symbol that shows a Red Cross the upper square of which ends in a balled fist. After the German Red Cross acted in the early 1980’s, several courts denied any danger of confusion and the summary offence proceedings under § 125 OwiG were dismissed.
Currently, after more than 20 years of silence, the German Red Cross raises civil court proceedings against the use of the Red Cross Symbol by the Rote Hilfe e.V. (see on the whole issue: Rote Hilfe  e.V. Online, ‘Die Rote Hilfe e. V. wehrt sich gegen die Unterzeichnung einer Unterlassungsverpflichtung des Deutschen Roten Kreuz (DRK)’).
Here also it is unclear why the Red Cross is acting only now.

I can only guess, but there probably is a connection between establishing the new emblem, the Red Crystal (See Post No. 3), and the Red Cross Societies attempting to more actively protect the old ones. I do not know if there is a general plan behind these protective measures or if the Societies where only stirred up by the Third Additional Protocol, but the assumption that there is some sort of connection is not so far off.


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