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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Commentary
of 1987
Basic needs in occupied territories
[p.811] Article 69
-- Basic needs in occupied territories
[p.812] Paragraph 1 -- Duties of the Occupying power
2779 This paragraph supplements paragraph 1 of Article 55
of the fourth Convention, which imposes on the Occupying Power the
obligation "of ensuring the food and medical supplies of the
population" of the occupied territory. It sets out from the idea that
it is too restrictive to limit this obligation to supplying the
population of the occupied territory only with food and medical
supplies. Thus mention is made here in addition of the provision of
clothing, bedding, and means of shelter. In fact, it is quite
possible to suffer, and even die, from heat or cold, and it is
essential that the civilian population has adequate clothing, bedding
and shelter. Urgent action to provide shelter applies particularly if
the occupied territory has suffered damage from bombing. The
immediate provision of makeshift shelters (tents, prefabricated or
other forms of housing), is an essential preliminary step to more
long-term reconstruction.
2780 However, the article does not contain an exhaustive list, and it places the responsibility upon the Occupying Power to provide all the
"other supplies essential to the survival of the civilian
population". The word "other" clearly shows that this list was not
intended to be exhaustive. This is no more than common sense. In
fact, it depends on the local conditions whether certain supplies are
essential or not. Thus fuel might be essential in a cold region, and
some form of craft for an isolated island. The duty of the Occupying
Power therefore depends on the local conditions.
2781 Moreover, the obligation also extends to objects necessary for religious worship. In this respect the Occupying Power already had an
obligation laid down in Article 58
of the fourth Convention to
' accept ' the "consignments of books and articles required for
religious needs" and to ' facilitate ' "their distribution in
occupied territory". Article 69
of the Protocol therefore goes a
little further since it imposes the obligation on the Occupying Power
itself to provide these objects in the situation where the population
of the occupied territory is deprived of them, and is unable to
obtain them itself. Obviously the objects themselves are not
described, as these depend on the religion of the population
concerned.
2782 If the occupied territory has insufficient supplies, the Occupying Power must import supplies. This obligation, following from
the obligation to ensure the food and medical supplies in accordance
with Article 55
, paragraph 1, of the fourth Convention, extends here
to all the essential supplies mentioned above.
2783 However, the obligation imposed on the Occupying Power only applies "to the fullest extent of the means available to it". This
restriction was already contained in Article 55
, paragraph 1, of the
Fourth Convention. During the Diplomatic Conference it was proposed
to delete it. The delegations which proposed the deletion (1) feared
that this restriction would permit the Occupying Power to evade the
obligations of this article. (2) It was finally retained in
particular to maintain on [p.813] this point the indispensable
correlation between Article 55
of the fourth Convention and Article
69
of the Protocol which supplements it. However, in this respect it
was clearly specified that there was "a positive, complete
requirement on the Occupying Power to use all means available to
provide the supplies in question", (3) and that there was an
obligation upon the Occupying Power "to arrange for other steps to be
taken if it could not supply the requirements in question from its
own resources or those of the occupied territory". (4)
2784 On the basis of these explanations the article was adopted by consensus in Committee II, and it must therefore be interpreted in
that light. Thus the existence of an ' obligation ' on the part of
the Occupying Power to accept relief action cannot be denied when it
has no other means of meeting the essential needs of the civilian
population of the occupied territory. It seems legitimate to
recognize that such relief actions should comply with the condition
of being humanitarian and impartial in character. (5) Nevertheless,
this criterion must not be abused in order to avoid any action.
2785 Finally, Article 69
, paragraph 1, states that the provision of the supplies should be made "without any adverse distinction", an
obligation which applies equally to aid provided directly by the
Occupying Power, and to relief actions. Similar comments are made in
many other provisions in the Conventions and the Protocols. (6) As
shown above, (7) some delegates contested the possibility of
introducing this principle in the context of a general obligation
imposed on the Parties to the conflict, which referred equally to the
populations of these Parties. This objection disappeared from the
moment it became clear that the article was concerned only with the
population of the occupied territory. Moreover, it should be noted
that it does not prohibit all distinctions, but only those based on
criteria other than medical or humanitarian criteria. To give more
blankets to old people or extra food to nursing mothers, for example,
is obviously not against the principle, and on the contrary, is in
accordance with its spirit. (8)
Paragraph 2 -- Relief actions
2786 This paragraph is essentially a cross-reference to the fourth Convention as regards the relief actions undertaken for the benefit
of the populations of occupied territories and a reminder of the
relevant provisions of this Convention. These provisions are
concerned first of all with collective relief (Article 59
) or
individual relief (Article 62
) intended for the whole population, and
they determine the responsibilities of the Occupying Power with
respect to such relief [p.814] (Article 60
), and the means of
distribution (Article 61
). The extended scope laid down in Article
69
, paragraph 1, of the Protocol, of relief considered to be
essential, did not need to be mentioned in paragraph 2, as the
content of relief consignments is not laid down exhaustively in the
fourth Convention (Article 59
states that these relief schemes "shall
consist, in particular, of the provision of consignments of
foodstuffs, medical supplies and clothing").
2787 The other provisions mentioned are concerned with relief consignments intended for civilian internees. They lay down the
general principles of such consignments (Article 108
), and regulate
the questions of collective relief (Article 109
), exemption from
postal and transport charges (Article 110
), and special means of
transportation (Article 111
). (9)
2788 Nevertheless, two additional details are mentioned regarding relief actions for the benefit of the civilian population of occupied
territories:
-- the provisions on the personnel participating in relief actions, laid down in Article 71
of the Protocol ' (Personnel
participating in relief actions) ' apply to such actions. There
is no provision on such personnel in the fourth Convention. We
will examine the content in the context of the commentary on
Article 71
' (Personnel participating in relief actions) '; (10)
-- these actions "shall be implemented without delay". In this way the often urgent character of such actions is underlined.
Nevertheless, this expression does not impose a specific
obligation upon anyone to undertake such actions. Article 59
of
the fourth Convention specifies that relief actions "may be
undertaken either by States or by impartial humanitarian
organizations such as the International Committee of the Red
Cross". From this one can deduce a certain reponsibility with
regard to such actions for States and organizations able to
undertake them, but not a specific legal obligation. It is above
all reminiscent of the principle of international solidarity (11)
for these cases of extreme need, which is obviously addressed in
the first place to those who have the means and are capable of
providing the required aid.
2789 However, the instruction is also addressed, and in a more pressing form, to the Occupying Power which is not able to ensure the
provision of supplies for the population, and to those Powers which
must permit free passage to relief consignments over their territory.
These Powers genuinely have a duty to be diligent and speed up as
much as possible the necessary procedures for the proper execution of
relief actions. Delays due simply to procedural reasons would be
inadmissible.
' Y. S. '
NOTES$ (1) [(1) p.812] Cf. O.R. III, p. 281, CDDH/II/70;
(2) [(2) p.812] O.R. XII, p. 335, CDDH/II/SR.87, para. 17;
(3) [(3) p.813] Ibid., para. 20;
(4) [(4) p.813] Ibid., para. 15;
(5) [(5) p.813] On the meaning to be given to this expression, cf. commentary Art. 70, infra, pp. 817-818;
(6) [(6) p.813] Cf. in particular Art. 12, First Convention; Art. 12, Second Convention; Art. 16, Third Convention;
Art. 27, Fourth Convention; Art. 10,para.2, and Art. 15,
para.3, and Art. 75, para. 1, Protocol I; Art. 2, para. 1,
Protocol II;
(7) [(7) p.813] Introduction to the Section, supra, p. 806;
(8) [(8) p.813] See commentary Art. 70, infra, pp. 817-818;
(9) [(9) p.814] For further details on these various provisions, cf. ' Commentary IV ';
(10) [(10) p.814] Infra, p. 831;
(11) [(11) p.814] This principle can be deduced in particular from the Declaration adopted in Resolution 2675 the United
Nations General Assembly, mentioned above (cf. supra,
introduction to this Section, pp. 805-806);
GVALNWB2/ICRC
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