[Congressional Record Volume 152, Number 122 (Tuesday, September 26, 2006)]
[Senate]
[Pages S10219-S10222]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TREATY DOCUMENT 109-10A
Mr. McCONNELL. Mr. President, I ask unanimous consent that the
Foreign Relations Committee be discharged from further consideration of
the following treaty and that it be placed on the Executive Calendar:
Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Adoption of an Additional Distinctive Emblem, adopted
at Geneva on December 8, 2005, and signed by the United States on that
date.
I further ask unanimous consent that this protocol and those that
remain in committee be assigned designations of ``A,'' ``B,'' and ``C''
respectively to reflect that three protocols were received as part of
Treaty Document 109-10.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LUGAR. Mr. President, I ask unanimous consent that a joint
statement with Senator Biden, and accompanying materials, regarding the
Geneva Protocol III--the Protocol Additional to the Geneva Conventions
of 12 August 1949, and relating to the Adoption of an Additional
Distinctive Emblem--be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Joint Statement of Senators Lugar and Biden
Today, on behalf of the Committee on Foreign Relations, we
have requested that the Committee be discharged from further
consideration of the Protocol Additional to the Geneva
Conventions of August 12, 1949, and relating to the Adoption
of an Additional Distinctive Emblem, which was adopted at
Geneva on December 8, 2005, and signed by the United States
on that date (Treaty Doc. 109-10A) (``Geneva Protocol III''
or the ``Protocol'').
The Protocol creates a new distinctive emblem, a Red
Crystal, that will serve the same purposes as the Red Cross
and Red Crescent emblems. The Red Crystal is a neutral emblem
that can be used by governments and national societies that
face challenges using the existing emblems or that believe
this neutral emblem may offer enhanced protection in certain
situations. The Protocol also paved the way for Magen David
Adom, Israel's national society, to become a member of the
International Red Cross and Red Crescent Movement.
As chairman and ranking member of the Committee, we have
reviewed the Protocol, as well as responses provided by the
Department of State to written questions that we have
submitted on the Protocol. Based on our review, we believe
that the Protocol is in the interests of the United States
and urge the Senate to act promptly to give advice and
consent to ratification of the Protocol. Ratification of the
Protocol will reinforce and extend the longstanding and
historic leadership of the United States in the law of armed
conflict. We support prompt ratification of the Protocol this
year, as such action emphasizes the U.S. commitment to the
humanitarian objectives of the International Red Cross and
Red Crescent Movement and its fundamental principles of
universality and neutrality.
Because the Committee has not formally acted on the
Protocol, there is no Committee report. Therefore, in order
to assist senators in evaluating the Protocol, we are
submitting for the Record a summary prepared by professional
staff of the Committee outlining the purpose and background
of the Protocol, as well as its key provisions. We also are
including the responses from the Department of State to
questions that we submitted on the Protocol.
Staff Summary of the Protocol Additional to the Geneva Conventions of
August 12, 1949, and Relating to the Adoption of an Additional
Distinctive Emblem (Treaty Doc. 109-10A).
I. Purpose
The Protocol Additional to the Geneva Conventions of August
12, 1949, and relating to the Adoption of an Additional
Distinctive Emblem, was adopted at Geneva on December 8,
2005, and signed by the United States on that date (Treaty
Doc. 109-10A).
The Protocol, also referred to as Geneva Protocol III, creates a new
distinctive emblem, a Red Crystal, in addition to and for the same
purposes as the Red Cross and the Red Crescent emblems.
II. Background
The 1949 Geneva Conventions provide for the respect and
protection of military medical and religious personnel during
international armed conflicts. The 1949 Geneva Conventions
retained the distinctive emblems as a means of easily
identifying and protecting such personnel, their vehicles and
their facilities. The Conventions also permit authorized
national societies of the High Contracting Parties to the
Geneva Conventions to use these emblems in certain
circumstances. The Geneva Protocol III creates a new emblem,
the Red Crystal, equal in all respects to the existing
emblems (Red Cross, Red Crescent and the Red Lion and Sun),
to be used by military medical and religious services and
authorized national societies.
The new distinctive emblem, the Red Crystal, is a neutral
emblem that can be used by governments and national societies
that face challenges using the existing emblems or that
believe that this neutral emblem may offer enhanced
protections in certain situations. The United States had
urged the High Contracting Parties to the Geneva Convention
to conclude a protocol on this issue as an important step
towards achieving truly universal membership in the
International Red Cross and Red Crescent Movement. The text
of the Geneva Protocol III was drawn up in October 2000,
following discussions within the Joint Working Group
established by the Standing Commission of the Red Cross and
Red Crescent pursuant to the mandate assigned to it by
Resolution 3 of the 27th International Conference of the Red
Cross and Red Crescent and subsequent consultations. This
draft followed attempts to resolve this issue during the
negotiations of the 1949 Geneva Conventions and during the
negotiations of Protocols I and II in the 1970s. As adopted,
the Geneva Protocol III paved the way for Magen David Adom,
Israel's national society, to become a member of the
International Red Cross and Red Crescent Movement.
III. Summary of Key Provisions of the Agreement
The key provisions of the Geneva Protocol III establish the
new emblem, the Red Crystal, and set forth applicable rules.
Article 2 establishes the new emblem ``in addition to, and
for the same purposes as'' the existing distinctive emblems.
It also establishes that the emblems ``shall enjoy equal
status'' and that the conditions for use of and respect for
the new emblem are identical to those applicable to the
existing emblems. Article 2 also authorizes the medical and
religious personnel of armed forces of the parties to make
temporary use of any of the distinctive emblems (including
the Red Crystal) where such use may enhance protection.
Article 3 authorizes national societies of parties that
decide to use the new emblem to incorporate within it one or
more of the existing emblems 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''
prior to December 8, 2005. This Article also authorizes a
national society that incorporates within the new emblem one
of the existing emblems to ``use the designation of that
emblem and display it within its national territory.''
Article 4 authorizes the International Committee of the Red
Cross and the International Federation of Red Cross and Red
Crescent Societies and their duly authorized personnel to use
the new emblem ``in exceptional circumstances and to
facilitate their work.'' Article 5 authorizes the medical
services and religious personnel participating in operations
under the auspices of the United Nations to use one of the
distinctive emblems with the agreement of the participating
states. Article 6 extends to the new distinctive emblem
provisions of the Geneva
[[Page S10220]]
Conventions and, where applicable, Protocols I and II,
regarding ``prevention and repression of misuse'' of the
existing distinctive emblems. Parties to Geneva Protocol III
are required to take measures ``necessary for the prevention
and repression, at all times, of any misuse'' of each of the
emblems. Article 6 also allows parties to permit ``prior
users'' of the new emblem, or of ``any sign constituting an
imitation thereof,'' to continue using such emblem or signs,
so long as the emblem or signs do not ``appear, in time of
armed conflict to confer protection'' of the Geneva
Conventions and, where applicable, Protocols I and II. Prior
users, under this provision, must have acquired the rights to
use the emblem or signs before December 8, 2005.
IV. Implementing Legislation
The executive branch has submitted proposed legislation to
Congress that would provide protection for the new Red
Crystal emblem, as well as the existing Red Crescent emblem,
consistent with the Geneva Conventions and the Geneva
Protocol III. These protections correspond to existing
protections in U.S. law, set forth in Title 18 of the United
States Code, for the Red Cross emblem. This legislation was
referred to the Committee on the Judiciary.
V. Questions for the Record
RESPONSES OF HON. JOHN BELLINGER, III, THE LEGAL ADVISER, DEPARTMENT OF
STATE, TO QUESTIONS FOR THE RECORD SUBMITTED BY SENATOR RICHARD G.
LUGAR
Question: If the U.S. chooses to ratify this treaty, what
legislation is necessary to implement this Protocol?
Answer: The Department of State has submitted draft
legislation to the House of Representatives and the Senate
that would provide protections to the Third Protocol (red
crystal) distinctive emblem consistent with Article 6 of the
Geneva Protocol III. The draft legislation also provides
protections to the red crescent distinctive emblem consistent
with the 1949 Geneva Conventions and the Geneva Protocol III.
These protections correspond to protections set forth in 18
U.S.C. Sec. 706 for the red cross.
Question: How does the Geneva Protocol III serve U.S.
foreign policy interests?
Answer: The Geneva Protocol III serves U.S. foreign policy
interests in several ways. First, it lifted an important
obstacle to the universality of the International Red Cross
and Red Crescent Movement, by adopting a neutral emblem that
could be used by any government or national society that face
challenges using the existing emblems or that believe that
this neutral emblem may offer enhanced protections in certain
situations. The adoption of the Protocol made it possible for
Israel's national society, Magen David Adom (MDA), to join
the Movement after more than fifty years of exclusion. The
United States looks to the Movement to deliver humanitarian
assistance in response to natural disasters or armed
conflict. MDA's exclusion from the Movement meant that the
Movement was falling short with respect to one of its
fundamental principles--universality--and did not have
national societies everywhere operating under its umbrella
delivering humanitarian services.
Second, the new emblem created by the Protocol provides the
U.S. military medical and religious personnel and the
American Red Cross humanitarian workers with another option
in circumstances where we believe that the red cross may not
be perceived as a neutral emblem. For example, the U.S.
government or the American Red Cross may choose to use the
red crystal on an exceptional basis to avoid the appearance
of a religious affiliation in an armed conflict involving
countries or groups with strong religious ties.
Third, U.S. ratification of the Protocol will advance the
longstanding and historic leadership of the United States in
the law of armed conflict, just as our role in urging its
adoption did. In addition, it will send an important message
of the strength of U.S. support for this issue if the United
States Government has ratified the Protocol before it enters
into force on January 14, 2007. U.S. ratification of the
Protocol emphasizes the commitment of the United States to
the humanitarian objectives of the International Red Cross
and Red Crescent Movement and the Movement's fundamental
principles of universality and neutrality.
Finally, the adoption of the Protocol and MDA's subsequent
admission into the Movement made it possible for the American
Red Cross to end its policy of withholding its dues from the
International Federation of Red Cross and Red Crescent
Societies (the Federation) in protest of MDA's exclusion. In
2005, the American Red Cross entered into default status in
the Federation and lost its ability to run for Federation
offices as a result of not paying its dues since 2000. After
MDA was admitted to the Movement in June 2006, the American
Red Cross resumed its dues payments and regained its status
as a member in good standing, thus allowing it to play a very
constructive role to ensure that the Movement and the
Federation are achieving the policy and program goals that
serve the American public.
Question: How do national societies around the world view
the adoption of the new emblem? What are their views on its
use and potential impact on their security?
Answer: National societies have consistently supported
adoption of the Geneva Protocol III by passing unanimously
resolutions at the International Movement's Council of
Delegates meetings every two years in support of such a
Protocol. Moreover, at the 29th International Conference of
the Red Cross and Red Crescent held in June 2006, national
societies voted in favor of adopting changes to the
Movement's statutes authorizing national societies to use the
new emblem for purposes of membership, by a vote of 136 to
21, with six abstentions.
The statements of representatives of national societies to
these bodies indicate that they believe having an additional
neutral emblem will enhance their ability to perform
humanitarian work. We understand that they believe that it
should offer their workers greater security in situations
where the red cross and red crescent are not seen as neutral
emblems, especially in mixed populations or where parties to
a conflict differ in religious affiliation. Statements by
representatives of national societies that were not in favor
of the statutes changes or the previous resolutions generally
did not focus on problems using the red crystal emblem per
se, but on opposition to the entry of Israel's national
society, Magen David Adom, into the International Red Cross
and Red Crescent Movement or opposition to the policies of
the Government of Israel.
Question: Which countries have ratified Geneva Protocol
III? When does it enter into force? Although consensus was
not achieved in adopting Geneva Protocol III, what are the
expectations of support for its ratification?
Answer: As of September 21, 2006, six countries (Bulgaria,
Iceland, Liechtenstein, Norway, Philippines, and Switzerland)
have ratified the Geneva Protocol III. Article 11 of the
Protocol provides that it enters into force six months
after two instruments of ratification or accession have
been deposited. Accordingly, the Geneva Protocol III
enters into force on January 14, 2007, six months after
the second instrument of ratification was deposited. For
each country ratifying or acceding to the Protocol after
the first two, the Geneva Protocol III enters into force
six months after the deposit of its instrument of
ratification or accession.
We expect that there will be additional ratifications of
the Geneva Protocol III. Twenty-seven countries, including
the United States, signed the Protocol on the day of its
adoption (December 8, 2005). Since then, another forty-nine
countries have signed the Protocol, suggesting continuing
strong interest in the Protocol. We expect most countries
will follow up by depositing their instruments of
ratification after satisfying their domestic requirements for
ratification. In addition, we believe the International
Committee of the Red Cross will continue to urge countries to
become parties to the Geneva Protocol III.
Question: Is it expected that any countries or their
national societies will choose to use the red crystal? Will
national societies use the option to incorporate another
symbol within the red crystal? Are there concerns that the
use of red crystal or the incorporation of other emblems or
symbols into the red crystal may create confusion about the
personnel, vehicles or facilities using the emblems? Does
either the International Committee of the Red Cross or the
Federation of the Red Cross and Red Crescent Societies plan
to change to use of the red crystal as its primary emblem?
Answer: We expect that a number of governments and national
societies will choose to use the red crystal on an
exceptional basis. In particular, governments and national
societies have said that in some current conflict zones,
where religion divides the conflicting parties, they may wish
to use the red crystal to convey that military medical units
and humanitarian workers are neutral and not parties to the
conflict. Beyond these circumstances, it is unlikely that
many governments or national societies will shift to using
the red crystal as their primary emblem. We are not aware of
any government currently planning to use the red crystal as
its emblem.
Magen David Adorn has already declared that when it is
working outside of Israel, it will use the Red Shield of
David inside the red crystal. In certain circumstances, it
may choose to use the red crystal alone, if it believes that
it will enhance the security of its staff. The American Red
Cross has expressed that it would consider using the red
crystal overseas on a case-by-case basis, if desirable due to
security and operational circumstances.
We do not believe that incorporating another emblem inside
the red crystal will create confusion about the personnel,
vehicles or facilities using those emblems. Over time, we
believe the public will become more familiar with the red
crystal as a symbol in its own right. Moreover, parties to
the Geneva Protocol III are required to disseminate the
Protocol as widely as possible in their countries so that
their armed forces and civilian populations become familiar
with the Protocol and the new emblem.
Neither the ICRC nor the Federation plans at this time to
adopt the red crystal as its primary emblem, as noted in a
preambular paragraph of the Geneva Protocol III. According to
Article 4, they may, however, choose to use the red crystal
on an exceptional basis, where circumstances merit and where
it will facilitate their work, possibly in regions where the
red crystal emblem will underscore their neutrality to the
parties to the conflict.
Question: How will the adoption of the emblem impact the
overall International Red Cross and Red Crescent Movement? Is
the
[[Page S10221]]
emblem likely to be accepted as a symbol of protection and
reduce the risk of targeted attack on aid workers?
Answer: The adoption of the Geneva Protocol III and the
establishment of a new emblem significantly impacts the
International Red Cross and Red Crescent Movement by helping
it fulfill one of its seven fundamental principles--
universality. The Movement has been unable to achieve this
goal for more than fifty years due to the exclusion of
Israel's national society, Magen David Adorn (MDA). MDA's
membership in the Movement now improves the ability of the
Movement to respond to humanitarian crises in the Middle
East, with national societies cooperating on an equal basis.
Parties to the Geneva Protocol III are required to
disseminate the Protocol as widely as possible so that their
armed forces and civilian populations become familiar with
the Protocol and the new emblem. As a result, we believe that
over time parties to a conflict and the public at large will
become more familiar with the red crystal. However, the
larger phenomenon of targeted attacks on aid workers has
diverse causes, many of which will not be addressed by the
use of a more neutral emblem. Those who wish to disrupt the
provision of humanitarian assistance for political or
military goals do not respect the neutrality of humanitarian
workers, regardless of whether the humanitarian workers are
perceived as neutral or politically or religiously
affiliated.
Ouestion: Will the new emblem increase the protection of
aid workers who appear increasingly to come under fire as
soft targets, not because of confusion over symbols, but
because of perceptions about their political alliance?
Answer: The new emblem gives the International Red Cross
and Red Crescent Movement an important tool that may help it
operate in exceptional circumstances. While the red cross is
not a religious symbol (but the inversion of the Swiss flag),
it has been perceived as a symbol of Christianity in some
circumstances. Where the Movement is working with populations
of different religions, especially if they are in
conflict, the red crystal may be a less divisive symbol
that better conveys the neutrality of the Movement.
Therefore, we expect that the red crystal will enhance the
protection of the Movement's humanitarian workers.
However, the larger phenomenon of targeted attacks on aid
workers has diverse causes, many of which will not be
addressed by the use of a more neutral emblem. Those who wish
to disrupt the provision of humanitarian assistance for
political or military goals do not respect the neutrality of
humanitarian workers, regardless of whether the humanitarian
workers are perceived as neutral or politically or
religiously affiliated.
Question: The adoption of the Geneva Protocol III and the
changes to the Statutes of the International Movement of the
Red Cross and Red Crescent were not accomplished by
consensus. Was the International Movement damaged in any way
because consensus was not achieved?
Answer: While the negotiations over the Geneva Protocol III
and the changes to the International Movement's Statutes were
challenging, we believe that the Movement was not damaged by
the lack of consensus. In the final session of the
International Conference of the International Red Cross and
Red Crescent Movement, several delegations acknowledged that,
while they might have preferred a modified outcome, this
issue had reached closure and the Movement should now move
forward with other aspects of its humanitarian work.
Moreover, when the components of the Movement met immediately
after the International Conference to consider admitting the
Magen David Adom and the Palestine Red Crescent Society, they
admitted them by unanimous acclamation, without having to
submit the issue to a vote. We believe this illustrates that
the Movement is united behind the outcome of the
International Conference of the Red Cross and Red Crescent.
RESPONSES OF HON. JOHN BELLINGER, III, THE LEGAL ADVISER, DEPARTMENT OF
STATE, TO QUESTIONS FOR THE RECORD SUBMITTED BY SENATOR JOSEPH R.
BIDEN, JR.
Question: As of this date, according to the information
available on the Internet site of the International Committee
of the Red Cross, there are five states that have ratified
the protocol. Why is it important for the Senate to act on
this treaty prior to the end of the 109th Congress? Is it
expected that the instrument of ratification will be
deposited prior to congressional action on the implementing
legislation?
Answer: It is important for the Senate to act on the Geneva
Protocol III prior to the end of the 109th Congress to
underscore its importance and the high priority the United
States Government places on it. Urgent ratification of the
Protocol will also advance the longstanding and historic
leadership of the United States in the law of armed conflict.
The Protocol will enter into force on January 14, 2007. It
will send an important message of the strength of U.S.
support for this issue if the United States Government has
ratified the Protocol before it enters into force. In
addition, ratification this year emphasizes the commitment of
the United States to the humanitarian objectives of the
International Red Cross and Red Crescent Movement. It will
also emphasize the U.S. commitment to the Movement's
fundamental principles of universality and neutrality.
We do not expect that the instrument of ratification will
be deposited prior to congressional action on the
implementing legislation because at this time we are working
with the relevant committees and we expect that Congress will
take up the implementing legislation in a timely fashion and
at the same time as the Senate is considering the Protocol,
consistent with the broad public and congressional support
for the Geneva Protocol III.
Question: In ratifying the Geneva Conventions of 1949, the
United States entered a reservation to the provisions in the
First Geneva Convention with regard to the obligation to make
unlawful within the United States the use of the Red Cross
emblem, in order to protect certain commercial use in this
country.
a. Is there any prior commercial use of the new emblem in
the United States of which the Executive Branch is aware?
b. Does Article 6(2) provide the United States sufficient
latitude to permit such prior use of the new emblem? Please
elaborate.
c. Please provide information from the Patent and Trademark
Office about whether there are any trademarks currently
registered that are similar to the new emblem (the Red
Crystal).
Answer: The Executive Branch is not aware of any prior
commercial use of the new emblem, the red crystal in the
United States. Nonetheless, the Geneva Protocol III provides
sufficient latitude for the continuation of legitimate prior
uses of the new emblem to the extent that they may exist. The
International Committee of the Red Cross has registered the
red crystal emblem as a trademark (U.S. Registration No.
2676576) at the United States Patent and Trademark Office
(USPTO). The USPTO has found no other registered trademarks
that are confusingly similar to the new emblem.
Question: In addition to the enforcement powers under the
proposed implementing legislation vested in the Attorney
General, are there other existing federal statutes relevant
to the protection of the Red Cross or the new emblem (the Red
Crystal), such as the trademark laws administered by the
Patent and Trademark Office or the unfair trade laws
administered by the Federal Trade Commission? Please
elaborate.
Answer: While the red cross has specific protections in
U.S. law (18 U.S.C. Sec. 706), the red crystal does not have
similar specific protections in U.S. law. The proposed
legislation would provide specific protections for the red
crystal and the red crescent. In certain circumstances, U.S.
unfair competition law could provide some possible protection
for the Geneva Convention distinctive emblems, including the
U.S. Trademark Act contained in 15 U.S.C. Sec. 1051 et seq.
For example, 15 U.S.C. Sec. 1052(a) provides a basis for the
U.S. Patent and Trademark Office to refuse trademark
applications on the grounds that the mark falsely suggests a
connection with institutions, beliefs or national symbols. 15
U.S. Sec. 1125 provides a civil action against any person who
uses a word or symbol in commerce that is likely to deceive
as to an affiliation with the commercial activities of
another. We believe the proposed legislation submitted to the
Congress by the Department of State will adequately prohibit,
at all times, use of the red crystal and red crescent that is
inconsistent with the Geneva Conventions and its Protocol
III.
Question: Is there a common understanding among the
signatories of the term ``in exceptional circumstances and to
facilitate their work'' as used in Article 3(3) and Article
4?
Answer: The term ``in exceptional circumstances and to
facilitate their work'', as used in Article 3(3) and Article
4 of the Geneva Protocol III, was not discussed or debated in
detail during the December 2005 diplomatic conference which
adopted the Protocol.
Question: The United States is not a party to the 1977
Additional Protocols to the Geneva Conventions (Protocol I
and II). Protocol III includes several references to those
Protocols. By ratifying Protocol III, would the United States
assume any obligations under the 1977 Protocols?
Answer: No, by ratifying the Geneva Protocol III, the
United States would not undertake any new obligations under
Protocols I and II. The references in the Geneva Protocol III
to provisions of Protocols I and II include the language
``where applicable''. Thus, a provision of Protocol I or II
must be ``applicable'' to a party to the Geneva Protocol III
in order to confer an obligation on that party. As noted
above, the United States is not a party to Protocol I or II.
Question: Article 6(1) bars the ``perfidious use'' of the
distinctive emblems mentioned in Articles 1 and 2. Is there a
common understanding among the signatories of the meaning of
this term? Please elaborate.
Answer: The term ``perfidious use'' in Article 6(1) was not
discussed or debated in detail during the December 2005
diplomatic conference which adopted the Geneva Protocol III.
Nonetheless, perfidy is generally understood to mean an act
inviting the confidence of an adversary to lead him to
believe that he is entitled to, or obliged to accord
protection, under the law of armed conflict, with the intent
to betray that confidence.
Question: Did the U.S. delegation to the negotiating
conference make any public statements that relate to the
meaning or interpretation of any treaty terms?
Answer: No, the U.S. delegation did not make any public
statements that relate to
[[Page S10222]]
the meaning or interpretation of any treaty terms during the
December 2005 diplomatic conference which adopted the Geneva
Protocol III.
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