Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 75 : Special means of transport
Text of the provision*
(1) Should military operations prevent the Powers concerned from fulfilling their obligation to assure the transport of the shipments referred to in Articles 70, 71, 72 and 77, the Protecting Powers concerned, the International Committee of the Red Cross or any other organization duly approved by the Parties to the conflict may undertake to ensure the conveyance of such shipments by suitable means (railway wagons, motor vehicles, vessels or aircraft, etc.). For this purpose, the High Contracting Parties shall endeavour to supply them with such transport and to allow its circulation, especially by granting the necessary safe-conducts.
(2) Such transport may also be used to convey:
(a) correspondence, lists and reports exchanged between the Central Information Agency referred to in Article 123 and the National Bureaux referred to in Article 122;
(b) correspondence and reports relating to prisoners of war which the Protecting Powers, the International Committee of the Red Cross or any other body assisting the prisoners, exchange either with their own delegates or with the Parties to the conflict.
(3) These provisions in no way detract from the right of any Party to the conflict to arrange other means of transport, if it should so prefer, nor preclude the granting of safe-conducts, under mutually agreed conditions, to such means of transport.
(4) In the absence of special agreements, the costs occasioned by the use of such means of transport shall be borne proportionally by the Parties to the conflict whose nationals are benefited thereby.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
3309  The Third Convention allows prisoners of war to maintain various forms of contact with the outside world. These include the sending and receiving of letters and cards (including capture cards), relief shipments and legal documents.[1]
3310  Under the Third Convention, the obligation to ensure the transport of such letters, parcels and documents, from despatch to receipt, rests primarily with the High Contracting Parties, including their postal services. Military operations may, however, disrupt these services, and as a result also hamper the High Contracting Parties’ ability to comply with this obligation.
3311  Article 75 provides a solution for that eventuality by allowing for entities other than the High Contracting Parties concerned to organize the transport of letters, parcels and documents via alternative means. Thus, this provision seeks to ensure that prisoners of war are able to maintain contact with the outside world despite the practical difficulties that postal and other transport services may encounter owing to ongoing military operations.
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B. Historical background
3312  Article 75 was born out of the experience of the Second World War: when regular communication and transport channels broke down, the ICRC used several vessels, along with other forms of transport by road and air, to convey correspondence and relief parcels to various categories of persons affected by the conflict, including prisoners of war. Neither the 1929 Geneva Convention on Prisoners of War nor any other treaty in existence at the time addressed the issue. Thus, without any basis in treaty law, this practice and its boundaries (including whether a particular means of transport was entitled to display the distinctive emblem) were based each time on an ad hoc agreement with the Parties to the conflict concerned. The negotiation of such agreements was sometimes a complex process.[2]
3313  In its submission ahead of the Conference of Government Experts in 1947, the ICRC recommended that ‘Red Cross shipping for the transport of persons and of supplies should be authorized in time of war’.[3] This proposal was favourably received,[4] and led to the text proposed to, and accepted by, the 17th International Conference of the Red Cross in Stockholm in 1948, which also referred to modes of transport other than vessels.[5]
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C. Paragraphs 1 and 2: Scope of applicability
1. Circumstances in which Article 75 applies
3314  Article 75 applies ‘should military operations prevent the Powers concerned from fulfilling their obligation to assure the transport of the shipments referred to in Articles 70, 71, 72 and 77’ of the Third Convention. As the words ‘their obligation’ indicate, the obligation to transport letters and cards (including capture cards), relief shipments and legal documents rests first and foremost with the ‘Powers concerned’, i.e. the Detaining Power and the Power on which the prisoners depend, in accordance with the conditions in the relevant articles. In addition, in relevant aspects, this obligation rests with the High Contracting Parties whose territory the letters, parcels and documents pass through on their way to their destination.[6]
3315  The term ‘military operations’ is not defined in the Third Convention. The same concept also appears in Article 6(2) and (3) of the Fourth Convention and in several provisions of Additional Protocol I regulating topics such as the conduct of hostilities.[7] There is no indication in the preparatory work for Article 75 as to the meaning of this concept within the framework of the Third Convention. The term must be understood in the context of the provision, i.e. military operations that are preventing the Powers concerned from being able to transport letters, parcels and documents. This may be the case, for example, because means of transport have been destroyed or requisitioned for military purposes, because transport routes have been cut off or because they are fully committed to military activities.[8] Thus, regardless of the exact activities covered by the term ‘military operations’, what triggers the applicability of Article 75 is that these operations have compromised, either partially or totally, the High Contracting Powers’ ability to comply with their obligations to transport the items in question.
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2. The entity which may arrange the transport instead of the Powers concerned
3316  When Article 75 applies, three distinct entities may offer to undertake transports covered by that provision: (i) ‘the Protecting Powers concerned’, where such Powers (or substitutes) have been appointed;[9] (ii) the ICRC; or (iii) ‘any other organization duly approved by the Parties to the conflict’. The last may, but does not necessarily need to, be an ‘impartial humanitarian organization’ in the sense of Article 9.[10] Similarly, it may be a ‘relief societ[y], or any other organization assisting prisoners of war’ in the sense of Article 125. The organization must, however, have been ‘approved by the Parties to the conflict’. In other words, the Powers concerned retain their discretion to assess whether to accept the services of such an organization. Thus, not every organization assisting prisoners of war will necessarily be approved to undertake the types of transports covered by Article 75.[11] The Third Convention contains no guidance on the format such approval may or must take, nor on what happens if one of the Parties to the conflict approves a particular organization, but the others do not.
3317  In practice, the Protecting Powers and the ICRC will also need the consent of the Power concerned in order to act in the sense of Article 75. For their part, the Powers concerned need to keep in mind that if they are unable to implement their obligation under the Convention, they nonetheless have an obligation to endeavour to ensure that the prisoners of war are able to benefit from their entitlement to receive the letters, parcels and documents intended for them. If this cannot be done through means of transport organized by others, Article 75(3) allows the Parties to the conflict to arrange alternatives themselves. What matters is that, even when regular communication and transport lines are disrupted, prisoners of war can continue to interact with the outside world.
3318  As indicated by the word ‘may’ in the first sentence of Article 75(1), none of the organizations mentioned in the article has any legal obligation to ensure transport on the basis of Article 75, even where the conditions for the applicability of this provision have been met. Their actions are supplementary to the legal obligations of the Powers concerned.[12]
3319  On the basis of Article 9, the ICRC, along with any other ‘impartial humanitarian organization’, may at any time offer to undertake humanitarian activities for the protection and relief of prisoners of war. This rule applies regardless of whether the conditions for the applicability of Article 75 have been met in any given case. Such activities may include those referred to in Article 75. In that case, the general rules of international humanitarian law regulating humanitarian activities will specify which obligations apply to the Powers concerned.[13]
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3. Items which may be transported
3320  In addition to the transport of the items referred to in Articles 70, 71, 72 and 77, transport on the basis of Article 75 may also be used to convey correspondence, lists and reports relating to prisoners of war and sent between the Central Tracing Agency and the national information bureaux,[14] or between the Protecting Powers, the ICRC or ‘any other body assisting the prisoners’ (i.e. not only those ‘duly approved by the Parties to the conflict’)[15] and their ‘own delegates or with the Parties to the conflict’.
3321  Each time, at least the senders of the correspondence or shipment will need to have given their consent for the Protecting Powers, the ICRC or other organization to undertake the transport on the basis of Article 75.
3322  Where relevant, including in relation to the activities of the ICRC, applicable law and agreements regarding privileges and immunities will need to be complied with to ensure the confidentiality of the exchange.
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4. Means of transport
3323  Transport is to be undertaken by ‘suitable means (railway wagons, motor vehicles, vessels or aircraft, etc.)’. In practice, the circumstances of each case will dictate which means of transport is most suitable, i.e. both feasible and available. The word ‘etc.’ indicates that the list is not exhaustive and that the means of transport mentioned are merely examples.
3324  On the basis of the second sentence of Article 75(1), the ‘High Contracting Parties shall endeavour to supply them with such transport’. This means that, since another entity has agreed to carry out the transport, the High Contracting Parties must engage in a good-faith assessment of whether they can lend some of their own means of transport. This may be less the case for a Party to the conflict than for a High Contracting Party that is not a Party to the conflict.
3325  In addition, the High Contracting Parties ‘shall endeavour to … allow [the] circulation’ of such transports, and this ‘especially by granting the necessary safe-conducts’. As indicated by the word ‘endeavour’, this is not an absolute obligation. During the 1949 Diplomatic Conference, a suggested amendment to add the words ‘where they can do so without serious prejudice to the operations of war’ was not adopted. It was considered that the restriction to the three types of entities referred to in section C.2 ‘provided a sufficient safeguard against abuse’.[16] Still, in practice, considerations pertaining to the ongoing military operations would be a legitimate reason to temporarily restrict the movements of the transports. Practical details with regard to when and how the transport may take place are left to be settled in an agreement between the Power concerned and the entity undertaking the transport. Also on this point, all the High Contracting Parties concerned will need to engage in a good-faith assessment of what type of facilities they can undertake themselves, or organize, so as to ensure that the transports of letters, parcels and documents can take place as safely and as swiftly as possible, across borders and up to the point of delivery to the intended recipient.
3326  Article 75 does not address the question whether transports undertaken on the basis of this provision may display the distinctive emblem of the Geneva Conventions.[17] The use of the emblem is governed by Articles 39–44 of the First Convention and Article 18 of Additional Protocol I. These provisions may not be modified by special agreement. On the basis of Article 44(3) of the First Convention, where the ICRC undertakes the transport, it is at all times entitled to display the emblem.
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D. Paragraph 3: Parties to the conflict retain their right to arrange alternative transport options
3327  Article 75(3) is the result of an amendment made during the 1949 Diplomatic Conference.[18] It is a safeguard clause, which makes it clear that there is no legal obligation, or preference, to entrust the transport of correspondence and relief shipments between prisoners of war and the outside world to the Protecting Powers, the ICRC or any other organization duly approved by the Parties to the conflict.
3328  Indeed, when ‘military operations prevent the Powers concerned from fulfilling their obligation to assure the transport of the shipments referred to in Articles 70, 71, 72 and 77’, those Powers may seek, ‘if (they) so prefer’, to organize alternative transport themselves, or through entities other than those referred to in Article 75(1). This includes the right to conclude special agreements regarding such transports, for example on the granting of safe-conduct.
3329  Conversely, this paragraph may not be invoked to turn down an offer by one of the entities referred to in Article 75(1), if the Party to the conflict concerned has no intention or means of actually arranging the necessary transport. What matters is that the prisoners of war continue to enjoy their entitlement to interact with the outside world.
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E. Paragraph 4: Apportioning of expenses
3330  Where the Protecting Powers, the ICRC or any other duly approved organization steps in to transport correspondence and relief shipments, they do not have to do so for free. Costs ‘shall be borne proportionally by the Parties to the conflict whose nationals are benefited thereby’.
3331  Naturally, this guiding principle cannot settle the details, which will need to be agreed upon by the Parties to the conflict concerned. The preceding discussions must also include the entity carrying out the transport, which will have the details of who will benefit. They will need to assess not only who was benefited by a particular transport, but also how to apportion the costs involved in setting up the special transport system.[19] Most likely, it will not be possible to do this in advance of the transports actually taking place.
3332  Despite use of the word ‘shall’, the Protecting Powers, the ICRC or any other duly approved organization may also decide to perform these services without recovering their expenses.
3333  The principle set forth in Article 75(4) may be derogated from in a special agreement, which will need to comply with the conditions of Article 6 (which mentions Article 75), to be concluded between all the Powers concerned. Thus, for example, through such an agreement, one Party to the conflict may agree to bear more of the expenses than its nationals proportionally benefited from.

1 - See Article 70 (capture cards), Article 71 (letters and cards), Article 72 (individual parcels and collective shipments) and Article 77 (legal documents).
2 - For a detailed overview of these activities, see ICRC, Report of the International Committee of the Red Cross on its Activities during the Second World War (September 1, 1939–June 30, 1947), Volume III: Relief Activities, ICRC, Geneva, May 1948, pp. 124–165. The practice of working on the basis of ad hoc agreements was in line with the recommendation contained in the Naval Expert Report of 1937, p. 58. See also Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, Vol. II, pp. 110–112, in particular at 110: ‘These methods were improvised and independent of any detailed international legislation; they were rendered necessary through stoppages in the usual transport services, which were sometimes completely suspended.’
3 - Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, Vol. II, p. 112, with detailed principles at 112–116. See also Report of the Preliminary Conference of National Societies of 1946, pp. 90–91.
4 - Report of the Conference of Government Experts of 1947, pp. 189–190 (with a first drafting proposal).
5 - Draft Conventions submitted to the 1948 Stockholm Conference, pp. 99–100, and Draft Conventions adopted by the 1948 Stockholm Conference, pp. 78–79, referring to ‘suitable means (railway cars, motor vehicles, vessels or aircraft, etc.)’.
6 - See also Sharon Weill, ‘Relations with the Outside World’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 1013–1024, at 1015.
7 - See Additional Protocol I, Articles 3(b), 39(2), 44(3), 44(5), 51(1), 51(7), 56(2), 57(1), 57(4), 58(c), 59(2)(d), 60(1) and 60(6).
8 - Catherine Maia, Robert Kolb and Damien Scalia, La Protection des Prisonniers de Guerre en Droit International Humanitaire, Bruylant, Brussels, 2015, p. 367.
9 - On Protecting Powers, see Introduction, section A.1.e. On how to proceed when no Protecting Power or a substitute has been appointed, see Introduction, paras 50–51, and the commentary on Article 9, para. 1316.
10 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 287: [T]he term ‘or any other body assisting the prisoners’ was that used in the first paragraph of Article 115, and was in fact merely an amplification of the term ‘relief societies’ which appeared in the 1929 Conventions. It had not been used in the first paragraph because it had been felt that the transport of relief shipments might be entrusted to technical, and not merely to humanitarian, organizations. On the concept of ‘impartial humanitarian organization’, see the commentary on Article 9, section C.3.
11 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 287.
12 - Ibid.
13 - See, in particular, the commentary on Article 9, section C.4.b, as well as Article 70(2) of Additional Protocol I.
14 - See Articles 122 and 123.
15 - See para. 3316 of this commentary. See also Howard S. Levie, Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978, p. 162.
16 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 287.
17 - The idea was raised that all transports on the basis of this provision should display the red cross, including those operated by others; Minutes of the Joint Commission to examine the Draft Conventions to be submitted to the 1948 Stockholm Conference, pp. 103–106. However, this idea was rejected. When the ICRC undertakes the transport, it is at all times entitled to display the emblem on the basis of Article 44(3) of the First Convention.
18 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. III, p. 78.
19 - See e.g. United States, Law of War Manual, 2016, p. 597, para. 9.20.5: ‘Expenses in setting up the special transport system are not specifically addressed by the [Third Geneva Convention], and presumably would be addressed by an agreement between the body that takes the initiative in establishing the system and the Powers concerned.’