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Commentary of 1958 


This Article is based mainly on the active part which certain national Red Cross Societies and, in particular, the International Committee of the Red Cross were led to take in the transport of relief during the Second World War.
The efforts made by the belligerents during the conflict to isolate their adversaries, paralyse their communications and destroy their means of transport, had seriously interfered with the application of the guarantees contained in the humanitarian conventions concerning [p.465] the shipment of relief. In such conditions, agreements negotiated between States did not seem to give more than partial results. The special position of the International Committee of the Red Cross, on the other hand, allowed it to put forward suggested solutions of general interest and to take practical steps on behalf of all victims of the war whatever their nationality. Having succeeded in concluding the necessary agreements with the belligerents, the International Committee established and used, under the protection of the Red Cross emblem, an international fleet for transporting medical equipment and relief to civilian populations. In the same way, it brought together and operated several thousand railway wagons and organized road transport in lorries which
were particularly useful in enabling it to revictual internee camps during the last phase of the war, when the general disorganization of transport made it impossible for the Detaining Power to provide for the internees' maintenance.
It is on the lessons learnt as a result of this experience that the present Article is based.
The methods and established procedures used and the conditions to which this form of transport was subjected could perhaps have been codified or extended in the Convention or in annexed regulations. However, during the preparatory work and during the Diplomatic Conference, it was thought better merely to state the essential principles governing special means of transport. It was rightly considered that methods should be worked out to meet practical problems and to suit individual cases, where appropriate on the basis of solutions found in the past (1).


The transport operations envisaged at the expense of the "Powers concerned", i.e. belligerents as well as the neutrals whose territory is used in transit and which are concerned with the forwarding of internment cards (Article 106 ), internees' correspondence (Article 107 ), relief shipments (Article 108 ), and legal documents such as powers of attorney and wills (Article 113 ), are of such importance for the maintenance of humanitarian guarantees -- the aim of the Convention -- that it was necessary to provide a substitute for the ordinary means of transport if they were seriously disorganized as a result of "military operations".
This last term must be understood in a very broad sense. It refers not only to the movement of armies but to the consequences of that movement and, in general, the circumstances of active war. It should be noted that in this case the Powers concerned are not released from their obligation to ensure that these transport operations can take place, but when they find it impossible to fulfil that obligation satisfactorily, they are in duty bound to assist possible action by the Protecting Power or by bodies such as the International Committee of the Red Cross with a view to remedying the situation.
The problem of safe-conducts, particularly navicerts, which during the last war played an important rôle in the running of the Red Cross sea transport activities, has not been resolved by the insertion of obligatory provisions, as the International Committee of the Red Cross would have wished, but in a manner which emphasizes its importance (2).
Of course, every guarantee must be given to the Powers concerned that this special transport shall not be used for war contraband or to assist espionage in any way. The system has been placed under the responsibility of the Protecting Powers and bodies such as the International Committee of the Red Cross, which, by reason of its traditions and its long experience, was judged worthy of this confidence. Some delegations, during the discussions at the Geneva Conference, even wanted the International Committee to be the only organization mentioned apart from the Protecting Power (3). In any case, it is stated that all other bodies must be "duly approved" by the Parties to the conflict (4).
[p.467] It should further be noted that, while the Convention authorizes such organizations to take the initiative in arranging special transport, it emphasizes by its use of the terms "may undertake to ensure" that this action will not necessarily be successful. Success cannot be demanded in every case nor may those who do "undertake to ensure" the transport be held responsible for failure unless they commit serious faults.
Finally, it should be noted that the Convention does not tackle the very important question of the protection of special transport against the effects of war. It follows that among the tasks which the approved organizations are expected to undertake is the negotiation of special agreements like the arrangements made by the International Committee of the Red Cross with the belligerents during the Second World War. These agreements will cover the routes to be followed, the emblems to be used and the various conditions to be observed if the necessary protection is to be enjoyed.


If military operations have led to a stoppage of the carriage of mail, relief supplies and legal documents concerning the internees, the same will apply to the various documents addressed to the Information Bureaux or to the Central Agency and to the reports coming from representatives of the Protecting Power or of the International Committee of the Red Cross. If special transport is organized, these documents should obviously benefit from it too. It is just as essential that they should be transmitted as it is that relief supplies and mail should be forwarded and this forms one of the humanitarian guarantees given to internees. The nature of these documents frees them from any suspicion on the part of the belligerent Powers. However, since in this difficult matter the list of categories of consignments entitled to benefit from special transport is strictly limitative, it was right to add to the statement in the previous Article in this manner.


However scrupulously the special transport system is administered, it does nevertheless constitute a breach in the war-waging capacity of the Parties to the conflict since it entails the partial lifting of blockade measures or other steps taken in the interests of national defence. It should not, therefore, be a matter of astonishment that [p.468] the Parties to the conflict wished to supervise very strictly the implementation of the clauses on special transport. That is why this paragraph leaves them the possibility of themselves organizing special transport, as for example when the transport system organized by the Protecting Power or the relief societies has led to abuses, and, in any case, of laying down conditions for the issue of safe-conducts. These reservations only confirm the responsibility of the Powers concerned for the transmission of the mail and relief supplies mentioned in the previous two paragraphs.


This paragraph deals with the expenditure involved in the use of special transport but not the expenditure incurred in setting up the special transport system.
On this latter point, the Convention says nothing that is not contained in paragraph 1 of this Article -- i.e., that the Contracting Powers will make every effort to procure the means of transport. It is therefore to be supposed that these expenses will be covered by agreement between the body which takes the initiative in the matter and the Power concerned.
As for running costs, the rule is simple. They will be apportioned between the Powers whose nationals have the benefit of special transport and ' pro rata ' to the size of the consignments. The expenses will be apportioned by the organization which sets up the transport system.
The Fourth Convention, unlike the Third (Article 75, paragraph 4 ), does not mention the possibility of special agreements granting exemption from this rule of proportional payment if a belligerent, through lack of financial means, is against the use of special transport, while the adverse party is ready to take over the expenditure completely. There is nothing, however, to prevent the same reasoning being applied by analogy to internees and there is no reason why, therefore, any special agreement concluded on this subject between the body entrusted with the special transport and the Powers concerned should not be considered legitimate and in the spirit of the Convention.

Notes: (1) [(1) p.465] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War ', Vol. III, pp. 124-200.
The relief forwarded and distributed through the
International Committee to prisoners of war and civilian
internees during the Second World War can be summarized as
(1) Large-scale, regular shipments to about two
million Allied prisoners of war and civilian internees in
Europe between 1939 and 1945 comprising more than 400
million kg worth about 3000 million Swiss francs. In
addition, relief in smaller quantities was sent to Allied
prisoners and civilian internees in the Far East.
(2) Occasional shipments in all cases of an urgent
nature to about 1 million Italian and German prisoners of
war and civilian internees out of a total of between 2 1/2
and 3 millions.
(3) Consignments to about 300,000 deported and
detained civilians of every sort.
(4) 40 vessels, 3 of them belonging to the
International Committee of the Red Cross, carried about
470,000 tons of sundry relief supplies, i.e. more than 32
million parcels valued at 3 thousand million Sw. francs.
(5) 474 motor vehicles covered 2,831,840 km and
carried 8,602,570 kg of goods;

(2) [(1) p.466] The Draft submitted to the Stockholm
Conference said, with regard to means of transport, that
"the High Contracting Parties undertake to grant the
safe-conducts required for such transports";

(3) [(2) p.466] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, p. 730;

(4) [(3) p.466] There can only be question here of "any other
organization giving assistance to internees", to use the
wording generally found in the Convention, particularly in
Article 109 concerning collective relief shipments;