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Unauthorised use of the Red Cross emblem

Newsletter Article 02 March 2009

Unauthorised misuse of the Red Cross emblem occurs frequently in the health, medical, pharmaceutical and retail arenas.  It would appear that not many of us are aware of the existence of the Commonwealth legislation which protects the use of this emblem – the Geneva Conventions Act 1957 (Cth).

Section 15(1) of the Geneva Conventions Act 1957 (Cth) provides that it is an offence to use any of the recognised emblems of the Red Cross movement, including the emblem of the Red Cross and Red Crescent. 

                      

An offence against s15(1) is one of strict liability which means that a doctor will be responsible for a breach of s15(1) irrespective of the absence of any fault on his or her part of any of the physical elements of the offence.

The origin of the Red Cross movement

The Red Cross movement owes its origin to a Swiss businessman, Henri Dunant.  In 1859, after witnessing appalling conditions in the aftermath of war, Dunant established an independent humanitarian aid organisation, and selected as its emblem the red cross on a white background – the reverse of the Swiss national flag.

The symbol was chosen as a symbol of neutrality.

The International Committee of the Red Cross (ICRC) was established in 1863 and, 140 years later, the emblem of the Red Cross is one of the most readily recognised symbols throughout the world.

The significance of the emblem and why it is protected

Many of us associate the emblem of the Red Cross with the provision of medical aid and services.  This is hardly surprising given the images provided by popular culture and even literature.

However, the Red Cross emblem is first and foremost an emblem of protection.  The protective nature of the Red Cross and Red Crescent emblems – the Red Cross, the Red Crescent and the Red Lion and Sun and since December 2005, the red crystal - is enshrined in the Geneva Conventions of 1949 together with the two Additional Protocols of 1977.  These impose certain obligations on parties to armed conflict to respect, amongst other things, medical facilities and personnel under the protection of the emblem.

                        

Given the significant nature of the symbol of the Red Cross, its misuse dilutes the protective authority of the emblem in armed conflict.  It also undermines the authorised use by the Australian Red Cross and the Australian Defence Force medical services (the only bodies in Australia authorised to use this emblem).

Australia is a signatory to the Geneva Conventions and Protocols, and therefore obliged to protect the emblem.

Offences under section15(1) of the Geneva Conventions Act 1957 (Cth)

Section 15(1) of the Geneva Conventions Act 1957 (Cth) provides, amongst other things, that it is an offence to use any of the following in the absence of written consent from the Minister of Defence:

  • the emblem of the Red Cross on a completely white background;
  • the emblem of the Red Crescent on a completely white background;
  • a Red Lion and Sun on a completely white background (the Persian Red Lion in use in Iran from 1929 to 1979);
  • the designations ‘Red Cross’, ‘Geneva Cross’, ‘Red Crescent’ or ‘Red Lion and Sun’;
  • the heraldic emblem of the Swiss Confederation (the Swiss flag which consists of a white or silver cross on a red background);
  • a design or wording so nearly resembling any of the above emblems or designations as to be capable of being mistaken for, or understood as referring to one of them.

It is an emblem of the Red Cross that is most frequently misused in the health and related industries.
The penalty for a breach of s15(1) is $1,000.00.  Further, if convicted of an offence against s15(1), the Court may order the forfeiture, to the Commonwealth, of any goods on which an emblem, designation, design, wording or sign was used by anyone so convicted.
Where an offence is committed by a body corporate and it is proved to be committed with the consent or connivance of a director, manager, secretary or other officer of the body corporate, that officer is also deemed to be guilty of the offence and can be prosecuted and punished accordingly.

There have been no prosecutions to date in Australia, but there have been successful prosecutions in other countries.

Conclusion

The emblem of the Red Cross is doubtless eye catching and useful in drawing attention to the location of a nearby medical centre or hospital, but it is an offence to use it for the reasons discussed above.  Even if the Red Cross were to be placed on a coloured background other than white, say blue or green, one runs the risk of a conviction of an offence under the Geneva Conventions Act 1957 (Cth).

Consequently, if a doctor wants to avoid the dubious distinction of being the first person successfully convicted under this legislation, they should not use the emblem of the Red Cross (or any other protected emblems and designations) or anything resembling it (them) in any livery, signage, brochures, or advising material in the absence of appropriate approval.

 


Katharine Philp, Partner
Brisbane

Newsletter Article 02 March 2009
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