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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
[p.556] ARTICLE 142
. -- RELIEF SOCIETIES AND OTHER ORGANIZATIONS
[p.557] GENERAL REMARKS AND HISTORICAL SURVEY
When the Franco-German war of 1870 involved the internment in Germany of a large number of French prisoners, committees were founded, including one at Basle and one in Brussels, to bring relief to them. Anxious to provide a basis in international law for the activities of such committees, certain liberal minded persons tried to have a clause concerning them inserted in the Brussels Declaration of 1874. The proposal was rejected. However, it was repeated in identical terms, and this time with success, at the Hague Conferences of 1899 and 1907. As Article 15
of the Hague Regulations, and Article 79
of the 1929 Convention relative to the Treatment of Prisoners of War, it served during the two world wars as a legal basis for the relief activities of charitable societies, particularly national Red Cross Societies and the International Committee of the Red Cross.
During the preparations for revising the Conventions, the societies covered by the provision expressed the wish that its wording should be brought up to date without altering its spirit, i.e. that basic principle which today, as in the past, retains all its value and is one of the great achievements of humanitarian law: direct voluntary assistance given by individuals to the victims of conflicts. Of course, this assistance has had to take organized shape and be subjected to certain conditions before embodiment in the Conventions. Nevertheless, it has remained intact in the 1949 Conventions and it is that which makes this Article so valuable for relief societies and particularly for the whole of the Red Cross movement.
This Article 142 repeats almost word for word the corresponding Article 125
of the Convention relative to the Treatment of Prisoners of War except for its last paragraph, for reasons which will be discussed later. Furthermore, it occupies a different place in the general arrangements of the Convention.
Whereas in the Third Convention the part devoted to General Provisions immediately follows Article 125
(which is therefore the concluding Article of the chapter relating to Information Bureaux), the corresponding part in the Fourth Convention begins with Article 142. The reason which moved the Diplomatic Conference to alter, in this Convention, not the place occupied by this provision in relation to other Articles, which has not changed since the Hague Regulations, but the heading under which it is included, is not very clear. No doubt it was thought that Section V, which deals with Information Bureaux and is for that reason restricted in application to certain categories of protected persons only, should not contain a provision conferring a benefit on all protected persons. On the other hand, moving the [p.558] provision and introducing it, for example, into Section I of Part III which would have been its natural place, would have upset the traditional arrangement of the Articles. Whatever the reason, by merely making Part IV start one
Article earlier, that Article was included in the General Provisions, thus achieving the aim sought and keeping the former order of the Articles. While this has the advantage of preventing any restriction on the categories of persons assisted by relief societies, it must be admitted that it does not seem fully satisfactory, and a criticism may be made of the fact that Article 142 appears under the heading "Execution of the Convention" and yet contains no executory clause properly speaking.
It should be noted, in this connection, that Article 142 was not included in the draft Convention submitted to the Diplomatic Conference. Indeed, it was thought at first that there was no reason to repeat in the Fourth Convention the provisions relative to relief societies which form Article 125
of the Third, since almost identical clauses had already been inserted in the "Provisions common to the territories of the Parties to the conflict and to occupied territories" under Article 30
. It was at the express request of the delegation of the Holy See that the Diplomatic Conference nevertheless decided to repeat in the Civilians Convention, without change, Article 125
of the Third Convention (1).
There is some reason for the addition. While Article 142 and Article 30
in some respects duplicate and repeat each other, they are complementary in that Article 142 defines relief societies and describes their activities, which is not done in Article 30
. However, the two Articles should be read together and, as was said with regard to Article 30
, "the commentary on one forms part of the commentary on the other".
PARAGRAPH 1. -- DESCRIPTION AND TASKS OF RELIEF SOCIETIES
1. ' Description of relief societies '
of the 1929 Convention did not make clear to what societies it was to apply. It might have seemed difficult to apply it to international relief organizations, since it had first been inspired by the activities of purely national relief committees and committees set up on neutral territory.
How could the activities of various relief societies, and particularly of the Red Cross, in behalf of war victims be covered? The 1912 International [p.559] Red Cross Conference had proposed one solution: the activity of a national Society in behalf of prisoners would consist in collecting relief and forwarding it to the International Committee of the Red Cross for distribution to prisoners belonging to the same country as the society. According to that idea, it is primarily to the International Committee that the Article concerning relief societies should apply; although that interpretation was never disputed, it was stated on several occasions that the clause should be made more precise when the Conventions were revised.
In 1912, the possibility had also been discussed, still in connection with the Article concerning relief societies, of a national Society acting. in behalf of enemy aliens in its country's territory. That idea, which the experience of the two world wars has not generally supported, was taken up again in a Resolution of the International Red Cross Conference in 1948 (2). It was necessary, therefore, to make provision for it when revising the Conventions.
The new Article 142 is in keeping with these different requirements, particularly by virtue of the last sentence of the first paragraph: relief societies may be constituted either "in the territory of the Detaining Power, or in any other country, or they may have an international character".
The expression "in any other country" also covers relief societies in occupied countries -- an important point. Such societies, whose general activities must be enabled to continue under Article 63
, are therefore authorized henceforth to bring relief to protected persons, and particularly to detained or interned civilians, who are nationals of those countries. Their duly accredited delegates will thus be able, subject to the reservations in the following paragraph, to visit their compatriots in occupied territory itself and in the national territory of the Occupying Power.
The societies of "an international character" will be essentially international federations made up of several national societies pursuing the same aims. During the Second World War, there were many instances of relief societies of various kinds combining their efforts in a search for greater efficiency and establishing international organizations to co-ordinate their activities and to collect and forward their consignments. It is such federations as well as essentially international societies which are referred to here.
[p.560] The increasingly important part played by public institutions in the national life involved the appearance, during the last world war, of institutions for relief to war victims of a public or semi-public character, but which could in no way be called relief societies.
It was therefore necessary to extend the scope of the expression but not to abandon it, because of the weight of tradition behind it. For that reason, the phrase "or any other organizations assisting the protected persons" was added to the first sentence of the paragraph. The wording was designed to be applicable to bodies whose principal and long-term purpose was not assistance to civilians but which during a conflict might include such assistance among their tasks: the humanitarian nature of the body may therefore be temporary. On the other hand, mere sporadic activities on the part of an organization could not be considered as conferring on it the standing and privileges of a relief society.
The national Red Cross Societies at one time wondered whether they would not be justified in claiming special mention among the relief societies listed in the Third and Fourth Conventions. However, realizing that other institutions had also made what was often a very considerable contribution to relief for the victims of conflicts, and anxious to avoid any competition in the listing and naming of societies, the Red Cross itself gave up the idea of being thus mentioned in the 1949 Conventions.
The expression "relief" includes spiritual assistance. During the Second World War, religious bodies were able to carry on activities in behalf of war victims on the basis of the Article relative to relief societies. They wished, however, this point to be mentioned expressly in the new Conventions and the Diplomatic Conference complied by referring to them explicitly in the first sentence of paragraph 1.
Although the mention of religious bodies precedes that of "relief societies or any other organizations", that does not mean that the facilities envisaged must necessarily and always be granted primarily to religious organizations. The order in the list is solely one of convenience and at the same time due to the idea that spiritual matters should always have precedence.
2. ' Tasks of the relief societies '
The 1929 Convention relative to the Treatment of Prisoners of War used the general expression "their humane task". It did state, however, that representatives of the societies should "be permitted to distribute relief". Experience showed that this wording was inadequate and the first sentence of paragraph 1 of the new Article [p.561] gives more details; those details, however, need not be taken as setting limits to the activities of relief societies.
In particular, the new Convention lays down three main tasks of the societies allowed to operate in the territory of the Detaining Power or in territory occupied by that Power:
A. ' Distribution of relief. ' -- This phrase should be understood in a wide sense. In general, distribution will consist in apportioning relief supplies between the various places of internment rather than between individuals, although individual distribution might occur in certain circumstances. The phrase does not imply that distribution must perforce be carried out by the delegates of the relief societies in person. On the other hand, their rôle must not always be restricted to the mere sending of relief; the spirit of the whole Article implies their personal participation in the charitable work with which they are dealing, a participation which may consist, for example, in finding out requirements, being present when relief is distributed in a camp, checking on such distributions afterwards, by getting in touch with the camp leader or responsible representative, and ensuring the transport of relief by making the necessary arrangements with the authorities concerned.
The paragraph also states the nature of the relief which may be distributed to protected persons. It is the same as that mentioned in Article 108
. The wording of Article 142 in this connection corresponds in the main to that of Article 108
, which has already been discussed. One extra detail occurring in Article 142 may be mentioned, however: relief may come from any source, so that the Detaining Power would not be justified in refusing it on the grounds of its origin. That is an embodiment of the principle of the Red Cross movement, that assistance to victims should not only be given without distinction, but should also be accepted whatever its source, provided that it is disinterested.
B. ' Religious activities. ' -- In the Draft Convention the relief activities of religious bodies were covered rather by the extensive provisions dealing with the religion of the civilian internees; there was provision, in particular, for visits to the internees by the representatives of such bodies, visits which are all the more justified when their purpose is to bring spiritual comfort, for which direct, personal contact is necessary.
The system adopted by the Diplomatic Conference deals with the activities of these organizations in a single Article, which repeats their right to visit protected persons, a right of which all bodies [p.562] fulfilling the necessary conditions will now have the advantage, i.e. in particular religious organizations and national Red Cross Societies in the country of a Detaining Power or in occupied countries.
Visits by representatives of relief societies to protected persons form, of course, an essential part of their charitable activities, and will aim at providing the material or spiritual aid required by those persons and assisting them in organizing their leisure, a point dealt with later. If, however unwittingly, those visits were to touch on other aspects of the life of protected persons, they would become to a certain extent a check on the application of the Convention. Now that is a task which was deliberately entrusted by the Diplomatic Conference to the representatives of the Protecting Power or its substitutes. The Conference deliberately deleted the mention of relief societies which, in the draft of the Third Convention, also figured in the Article on supervision (3). Would the belligerents still tolerate such activities on the part of relief societies and would they not, therefore, out of mistrust, hinder them in their other tasks, which are much more essential? It therefore seems expedient that relief societies, if they
wish their right to visit protected persons to remain worthwhile and effective, should use it with the greatest circumspection and prudence.
C. ' Assistance to protected persons in organizing their leisure. ' -- This assistance can be given particularly through the despatch and distribution of books, musical instruments and all articles used for recreational, educational or artistic purposes.
The wording of Article 142 shows that the representatives of relief societies are called upon to take a still more direct part in this matter and to assist the protected persons to organize even their recreational activities. In this respect, the present Article may be compared with Article 94
, which obliges the Detaining Power to encourage activities of this kind, while respecting the individual freedom of every civilian internee to participate or not (4). The reservation was intended to prevent a Detaining Power making propaganda among the internees for recreational activities; the permission, henceforth, given to relief societies themselves to inaugurate or organize these activities will only reinforce, in the eyes of the civilians concerned, the guarantees of impartiality which they represent.
[p.563] 3. ' Attitude and obligations of the Detaining Powers '
The paragraph begins with a reservation of the rights of the Detaining Powers. A similar reservation is already included in Article 30
, which says that the facilities to be given to relief societies shall be given "within the bounds set by military or security considerations".
While the Convention obliges the Detaining Power to treat the relief societies correctly and while it thus gives the most important humanitarian right to private societies, even foreign societies, to enter its territory -- i.e. the territory of a belligerent -- it would not be reasonable to expect this to be done unless solid guarantees were given to the Powers concerned. Even the old Article on relief societies placed certain limits on their activities: overriding military necessity, the need for their delegates to obtain a permit from the military authorities and to observe the routine and police regulations prescribed.
The new Convention formulates all these restrictions in a more general form and one more suited to modern requirements, in the opening sentence of paragraph 1: "Subject to the measures which the Detaining Powers may consider essential to ensure their security or to meet any other reasonable need".
On the other hand, Article 142 omits the condition imposed on relief societies by the former Article of being properly established according to the law of their country. This condition, quite apart from the fact that international organizations sometimes find it difficult to fulfil, is, when all is said and done, of no interest to the Detaining Power and cannot be allowed to serve as a pretext for a refusal.
The Detaining Power, therefore, can only base opposition to the activities of a relief society on the reservation mentioned above and on condition that the reservation is invoked in good faith. In this respect, it is probable, in modern conditions, that a belligerent detaining protected persons will only grant the right to carry out charitable work on their behalf in its territory to organizations whose traditions, constitution and quality of work inspire a maximum of confidence, above all in the case of societies in other countries, or particularly non-allied countries.
Finally, in addition to the permission granted to the societies themselves, the Convention provides, as did the 1929 Convention, that delegates may carry out their functions in the territory of the Detaining Power or in a country it has occupied only if they have been duly accredited to that Power. This means that permission must be granted twice, once for the relief society and the second time for its delegates.
[p.564] Once approval has been given, the Detaining Power must grant relief societies and their delegates every facility for carrying out their mission.
Although it is impossible to state in advance what these facilities will be, two could be mentioned here: the issue of "laissez-passer" and facilities for forwarding to their destination relief supplies for distribution to those in need. These supplies, of course, must be transported free by the Detaining Power under Article 110
; there is nothing to prevent that Power, however, also making available to the delegates of relief societies, means of transport to enable them to carry out their distribution schemes in the best possible conditions.
These facilities will, of course, be granted subject to the reservation listed at the beginning of paragraph 1. Although in this respect the relationship between the two sentences is not very clearly stated, it does, however, follow from the general spirit of the provision.
PARAGRAPH 2. -- LIMITATION OF THE NUMBER OF DELEGATES
In the course of the very first attempts to draft the clauses which were to become the Article now under discussion, it was perceived that the Powers could not be obliged to accept the idea that any organizations which wished to come to the assistance of war victims had a legal right, under the Convention, to move about freely in their territory. Thus, at the very beginning, provision was made for the Powers to be authorized to restrict the number of societies whose delegates would be admitted. A Government may, indeed, feel that it cannot repose any trust in a particular national or foreign society or in several such societies, or that it would prefer to refuse the offers of some of them, either because the offers received are too numerous or because it wishes to give a single society the task of collecting at a central point and distributing the consignments destined for people in its hands.
However, this possibility is immediately modified by a formal condition: "on condition that such limitation shall not hinder the supply of effective and adequate relief to all protected persons". The notion of "effective and adequate relief" may, of course, be interpreted in various ways. For that reason, a decision that a restriction on the number of relief societies would have undesirable repercussions on the effectiveness of the assistance needed by those concerned should not be left to the Detaining Power. It seems, at first glance, that it comes within the competence of the Protecting Powers, whose task it is to supervise the application of the Convention, [p.565] and of the institution which has always worked to meet the needs of war victims: the International Committee of the Red Cross.
It would often be advisable, of course, for the societies concerned to co-ordinate their relief activities and to entrust the practical work on the spot to one of their number or to a body specially set up. Experience has shown that such a concentration of efforts always leads to better co-ordination and greater effectiveness in relief actions.
PARAGRAPH 3. -- SPECIAL POSITION OF THE INTERNATIONAL
COMMITTEE OF THE RED CROSS
The Convention mentions explicitly the various specific tasks of the International Committee of the Red Cross, particularly the establishment of the Agency (Article 140
) and the visiting of protected persons wherever they are (Article 143
). It was therefore natural, in the Article on relief societies, to make special mention of the International Committee, since its activities in this sphere during the Second World War, still more than in the First, assumed enormous proportions, as the report describing them will show (5).
Such was certainly the idea of the delegation which, in proposing to the Conference of Government Experts in 1947, for the text on relief societies, the wording now embodied in this Article, suggested that in paragraph 3 the special position of the International Committee of the Red Cross in this sphere must be recognized and respected at all times. During the Diplomatic Conference, two delegations wondered whether the provision was necessary. However, to have deleted it while explicitly mentioning the other activities of the International Committee could possibly have been interpreted as meaning that its relief activities were considered of lesser importance.
That was not the intention of the delegations which expressed the doubt; the majority of the others wished, on the contrary, to underline by this paragraph their belief that restrictions on the activities of relief societies could not, in principle, be applied to the International Committee of the Red Cross or at least that the Committee was the last body to which they should be applied. It was therefore finally decided unanimously to retain this paragraph (6).
The special position of the International Committee, which is at one and the same time a relief society and an information agency, is also confirmed by paragraph 3 of Article 30
. It arises not only from [p.566] its neutrality and traditional impartiality, which are the basis for its unique position as neutral intermediary for all categories of protected persons, but also from the relief activities in behalf of protected persons which it has carried out over a very long period.
It should be pointed out, finally, that the corresponding Article 125
in the Third Convention contains still another paragraph, which has not been repeated here, stipulating that receipts for each consignment of relief shall be forwarded to the relief society or organization making the shipment.
While the omission of this paragraph in Article 142 may, in one sense, appear regrettable, it must not in any case justify a refusal to draw up or to have drawn up for the donors receipts for the consignments addressed to protected persons. The giving of receipts is, after all, merely a practical detail connected with relief activities; not only are those activities permitted but detailed provision is made for them, especially in regard to civilian internees. Reference may be made, in this connection, to the Draft Regulations concerning Collective Relief for Civilian Internees (7), Article 5
of which authorizes internees' committees to complete forms or questionnaires intended for the donors and relating to collective relief supplies. Now Article 104
of the Convention provides explicitly that the Internee Committees shall receive all material facilities for the accomplishment of their duties, particularly in regard to the receipt of supplies. It seems clear, therefore, that no difficulty must be put in the way of receipts being made out and sent to the donor societies. Generally speaking, the right of scrutiny given to the bodies entrusted with the task of supervising the application of the Convention will be adequate assurance to the donors of the safe delivery of their consignments and even that assurance will be unnecessary if the relief is distributed with the participation of delegates of the donor societies.
Notes: (1) [(1) p.558] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 689-690;
(2) [(1) p.559] The Resolution reads: "The XVIIth
International Red Cross Conference recommends that
national Societies contribute to the relief of enemy
prisoners of war and civilian internees which should be
afforded on the basis of the most complete impartiality.";
(3) [(1) p.562] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-B, pp. 322-323;
(4) [(2) p.562] See above p. 409;
(5) [(1) p.565] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War, ' Vol. III;
(6) [(2) p.565] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 300-302,
(7) [(1) p.566] See below, p. 642;