Treaties, States Parties and Commentaries
  • Print page
Commentary of 1958 


The idea behind this Article has been the subject of resolutions at several International Red Cross Conferences (1). During the Second World War certain localities or zones held out against siege for months or even for years, and in several cases delegates of the International Committee of the Red Cross had been able to enter such areas to carry out their humanitarian work, rendering useful service. In 1947 the Conference of Government Experts suggested that civilians should be given the benefit of the experience thus gained; this suggestion was adopted by the Diplomatic Conference of 1949 at the instance of the International Committee.

1. ' Besieged or encircled areas '

The words "besieged or encircled areas" must be understood to mean not only an open piece of country or some other more or less extended area occupied by an encircled army, but also a town or fortress offering resistance on all sides to a besieging force.
The definition can even be extended to cover vast territories, to a whole region containing several towns or villages, except in so far as the encircled belligerent has the necessary hospitals and equipment within the encircled area to ensure that the wounded, sick, and other civilians in question are properly looked after.
The provision also applies to the case of an island or beach-head encircled by enemy naval forces. If circumstances so required, the civilians could be evacuated by sea, as envisaged by the Second Geneva Convention (2).

2. ' Evacuation '

A. ' Beneficiaries. ' -- The Convention mentions wounded, sick, infirm and aged persons, children and maternity cases, the same categories in fact, as those listed in the preceding Articles . They are included for the same reasons.
Unlike Article 14 (Hospital and Safety Zones), the present Article does not fix an age limit up to which children are to be evacuated. The belligerents concerned are free to come to an agreement on the [p.139] subject; the upper limit of 15 years of age, which applies to admission to a safety zone, seems reasonable and would appear to merit adoption in the present instance.
The term "aged persons" is used in the same sense as in Article 14 ; here again the criterion is unfitness to take part in military operations.

B. ' Local agreements. ' -- The words "The Parties to the conflict shall endeavour" show that under the Convention evacuation is not compulsory; belligerents should nevertheless regard this provision as a very strong recommendation to arrange for evacuation whenever it is in the interest of the civilian population and the military situation makes it possible.
It is conceivable that the commander of a besieged place would always be in favour of evacuating people whose presence is a burden to him. The same cannot be said, however, of the besieging forces, who may be tempted to oppose evacuation in order to avoid relieving the besieged forces of their supply difficulties and with the idea of inducing them to capitulate sooner. It is therefore to the besieger that the present urgent recommendation is addressed. As sieges generally last some time, during which a suitable moment for negotiation can be found, it will not be easy to maintain that "circumstances" have never permitted the adoption of this measure.

C. ' Procedure. ' -- The method of evacuation should be arranged by means of local agreements concluded between the belligerents concerned. They should deal with such points as the number of people to be evacuated, the beginning and duration of the truce, the means of transport and the route to be taken. Since the measures adopted will often have to be improvised on the spot, at a moment when conditions are favourable and there is no time to lose, it is essential that negotiations should take place through the most rapid and direct channels. Area commanders, and even officers commanding small units, should therefore be authorized to propose a short truce to allow for evacuation to begin.
When it is desired to prepare a large-scale evacuation -- that of a whole area, for example -- the conclusion of an agreement will often be made easier by having recourse to the good offices of a neutral State (such as the Protecting Power) or to those of a suitable humanitarian organization (such as the International Committee of the Red Cross), in the she way as the Convention provides in connection with the establishment of hospital and safety zones (3) and neutralized [p.140] zones (4). Such an intermediary may take the initiative in proposing to the parties that a besieged or encircled area should be evacuated, taking part not only in the negotiations but also in the practical execution of the agreements, and even going so far as to organize and carry out the whole operation.
It must again be emphasized that his consent to the evacuation of part of the civilian population cannot, under any circumstances, release the besieger from his other obligations under the Convention, both towards the people evacuated and towards those left behind. Evacuation is a measure adopted in the interests of the population which must not, therefore, be left without protection: civilians who go on living in the area will continue to be entitled to the protection of the Convention.

3. ' Ministers of religion and medical
personnel and equipment '

The commander of a besieged place may request permission to evacuate his wounded and sick and the weaker categories of the civilian population, or he may ask the besieger to allow free passage for medical personnel and equipment. He may conceivably make both requests, however. The Convention does not treat them as alternatives. As for ministers of religion, the most elementary sentiments of humanity and respect for the individual demand that they should always be allowed free access when their presence is required, in order that they may bring the consolations of religion to all who require them, whether wounded or fit.
The nationality of the medical and religious personnel in question is not specified. The besieging Power must either permit the passage between the lines of enemy personnel of the same nationality as the persons requiring attention, or, if such personnel are not available or other circumstances make it more desirable, send members of his own personnel into the besieged place, a practice in complete conformity with the general principles of the Convention. The status of the besieger's personnel, where these are sent, and the conditions of their stay, may be specified in the arrangement concluded.
We may mention in conclusion that in the First Geneva Convention of 1949, Article 15, paragraph 3 , provision is made for very similar measures in favour of wounded and sick of the armed forces in an encircled area. By applying the two Conventions simultaneously [p.141] it would be perfectly possible to include both civilians and military wounded and sick, as well as infirm and aged persons, children and maternity cases, in one and the same evacuation operation. In the same way, free access could be granted to religious personnel to cater for the needs of both the civilian population and members of the armed forces.

Notes: (1) [(1) p.138] See in particular Resolution IX of the Hague
Conference of 1928 and Resolution XXIV of the Brussels
Conference of 1930; also Article 15, para. 3, of the First
Geneva Convention of 1949;

(2) [(2) p.138] See Article 18, para. 2, of that Convention;

(3) [(1) p.139] See above, p. 119;

(4) [(1) p.140] See above, p. 128;