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Commentary - Relief actions
    [p.815] Article 70 -- Relief actions

    [p.816] Paragraph 1

    ' First sentence -- Scope of the principle '

    2790 Relief actions intended for occupied territories are not covered by this paragraph. (1)

    2791 The concept of civilian population was defined above. (2)

    2792 What is "a territory under the control of a Party to the conflict, other than occupied territory"? This expression was the result of two major trends which had appeared in the Working Group of Committee II, one of which wished "to place the Parties under a clearly defined obligation with respect to relief", while the other considered that "such an obligation could not be imposed". (3) One of the consequences of the compromise resulting from this was that a clear distinction was made between the scope of application of Article 69 ' (Basic needs in occupied territories) ' and Article 70 (61 and 62 of the 1973 draft), the former applying to occupied territories, while the latter applied to territories other than occupied territories. The negative definition means that a territory under the control of a Party to the conflict is definitely covered by one or other of these provisions on relief. There might be some differences of opinion with regard to the concept [p.817] of occupation, (4) but it would not be possible to deny at the same time both the application of Article 69 ' (Basic needs in occupied territories) ' and that of Article 70 .

    2793 In fact, we are obviously concerned primarily here with the national territory of a State involved in a conflict. However, the article also covers the few territories in the world which still have special status, (5) and, above all, territories under the control of movements fighting in conflicts such as those mentioned in Article 1 ' (General principles and scope of application), ' paragraph 4. As regards the ' control ' of territory, this refers here to material control. This should be understood to refer in particular to the capacity of the Party concerned to ensure the execution of its decisions in the whole territory. However, one should not exclude any territory from the scope of application of Articles 69 ' (Basic needs in occupied territories) ' or 70 on the ground that they are not in fact controlled by anyone, or that control is in dispute, even though it may happen that a relief action is in practice impossible in certain cases.

    2794 The civilian population must be "not adequately provided with the supplies mentioned in Article 69 ", which itself only supplements Article 55 of the fourth Convention. (6) The expression "not adequately provided", similar to the wording of Article 55 of the fourth Convention, is not very precise, but this is justified. The need for a relief action and the extent of its urgency must be assessed in every case individually, depending on the real requirements. It is the ' essential ' character of such requirements that must be the determining factor. This is a matter of common sense which cannot be formulated in precise terms.

    2795 From the moment that the civilian population referred to here is, ' in fact, ' not adequately provided, the principle of relief actions applies: relief actions "shall be undertaken" (and not: may be undertaken).

    2796 As in the case of relief actions intended for occupied territories, the question arises as ' to whom ' this apparent 'obligation ' is addressed. (7)

    2797 Relief actions to be undertaken are defined as being "humanitarian and impartial in character" and "conducted without any adverse distinction". In other words, any action which does not comply with these criteria, which were taken from the 1973 draft, simply would not be covered by Article 70 . However, as in the case of relief actions intended for occupied territories, it is obviously essential not to use these conditions as a pretext to avoid accepting relief actions.

    2798 The ' humanitarian ' character of the action is fulfilled once it is clear that the action is aimed at bringing relief to victims, i.e., in the present case, the civilian population lacking essential supplies. What matters most of all is to avoid deception, that is to say, using the relief action for other purposes. However, such cases must be assessed on a factual basis, and the humanitarian character of an [p.818] action could not be contested merely on the basis of its intention: the only ground for refusing an action would be the failure to comply with the required criteria.

    2799 The ' impartial ' character of the action may be assumed on the basis of fulfilling the obligation, also laid down, to conduct the action "without any adverse distinction" (which is often referred to as the principle of non-discrimination).

    2800 The second obligation results from the philosophical concept of the equality of human beings, which is actually a basic consequence of the principle of humanity. This refers to the real object of the action: the persons who are suffering. By contrast, the concept of impartiality refers to the agent of the action: it is a moral quality which must be present in the individual or institution called upon to act for the benefit of those who are suffering. In other words, the principle of nondiscrimination removes objective distinctions between individuals, while impartiality removes the subjective distinctions.

    2801 Impartiality presupposes the existence of recognized rules which must be applied dispassionately and without prejudice. Such rules conform precisely with the principles of non-discrimination and proportionality: impartiality "endeavours to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress". (8)

    2802 In the context of the provision under consideration here, the relief action must observe:

    - the principle of non-discrimination, including the principle of proportionality (i.e., the sharing according to needs) as a general aim and an ideal which cannot always be achieved, especially in a limited action;
    - impartiality in the real sense of the word: those conducting the action or providing the relief must resist any temptation to divert relief consignments or to favour certain groups or individuals rather than others because of personal preferences.

    2803 This in no way excludes the possibility of specific actions, for example, for the benefit of children or handicapped people, nor of unilateral actions undertaken for the benefit of only one Party to the conflict. In particular, an unilateral action cannot be considered as indicating a lack of neutrality. It is important to emphasize this point, as traditional links, or even the geographical situation, may prompt a State to undertake such actions, and it would be stupid to wish to force such a State to abandon the action.

    2804 Obviously all this also applies to actions undertaken by impartial humanitarian organizations, such as the ICRC. However, such organizations themselves accept the obligation of adopting an universal approach for all victims of armed conflict in order to preserve their credibility. They do not favour the population of one Party to the conflict to the detriment of that of another Party, except on the basis of purely humanitarian criteria or material constraints. Their actions are based [p.819] on the needs of ' all ' the victims concerned, regardless of any criteria of nationality, and independently of the Party to which they belong.

    2805 Finally, such actions are undertaken only "subject to the agreement of the Parties concerned". This raises the problem of the degree to which a State can be obliged to accept relief for its own population. This was discussed at length throughout the Conferences of Experts and the CDDH. The 1972 draft laid down the obligation to accept relief, but nevertheless included one important restriction, since this obligation was imposed only "to the fullest extent possible", an expression which some experts wished to delete. In the 1973 draft the obligation was laid down without any escape clause, provided of course that the conditions justifying such an action were met and the action complied with the criteria examined above. However, a reservation was made with regard to the competence to determine the technical details of the action and to place it under the supervision of a Protecting Power or an impartial humanitarian organization, and such a reservation is indeed also made in the text which was finally adopted. The clause requiring the agreement of the Parties concerned was added during the Conference essentially out of a concern to protect the national sovereignty of the State receiving the relief. Nevertheless it was clearly stated that this reservation:

    "did not imply that the Parties concerned had absolute and unlimited freedom to refuse their agreement to relief actions. A Party refusing its agreement must do so for valid reasons, not for arbitrary or capricious ones". (9)

    Several delegations supported this interpretation of the expression "subject to the agreement of the Parties concerned", and one of them even stressed that "the present draft, without involving any infringement of the sovereignty of the Parties concerned, suggested that the necessary agreement should not be withheld" (10) None of the delegations opposed this. Thus the expression should be interpreted in this sense, and this interpretation is actually supported by the provision of Article 54 ' (Protection of objects indispensable to the survival of the civilian population), ' paragraph 1, which prohibits the "starvation of civilians as a method of warfare". (11)

    2806 However, the receiving Party is not the only Party concerned. If this were the case, it would have been more clearly stated, and there would have been no need to use the plural expression. In fact, three types of Party may be concerned: those from whose territory an action is undertaken or from which relief has been sent, those through whose territory relief consignments pass, and those receiving relief. On the other hand, an adverse Party to that receiving relief, but through whose territory relief consignments do not have to pass, is not among ' the Parties concerned ' in the sense of this paragraph.

    [p.820] 2807 Logically, the second type of Party mentioned above, i.e., a Party through whose territory relief consignments must pass, is also excluded from ' the Parties concerned ' since it forms the object of a separate paragraph (paragraph 2). (12) This leads to the conclusion that the Parties concerned here, whose agreement is required, are primarily the Parties from which the relief is to come (assuming of course that it is not the government itself which has initiated the relief action or will be sending the relief consignments) and the Parties for which the relief is intended.

    2808 However, it should be stressed once again that this provision should be read in conjunction with Article 54 ' (Protection of objects indispensable to the survival of the civilian population) ' which prohibits the starvation of civilians as a method of warfare, and the possibility of refusing a relief action or relief consignments is not a matter of discretion: such refusals should thus remain exceptional.

    ' Second sentence -- Non-interference '

    2809 Already in the 1972 draft it had been considered important to emphasize that the offer of relief "shall not be considered as an unfriendly act", so that humanitarian activities in this field could be undertaken without unnecessary stress.

    2810 The 1973 draft contained the following expression: "Relief actions fulfilling the above conditions shall not be regarded as interference in the armed conflict". The text which was finally adopted chose to start from the ' offer ' itself, as even the mere offer must not be regarded as an unfriendly act. Nevertheless, it is obvious that the provision also covers the action itself, provided that, as in the case of a mere offer of relief, the rules with which it must comply and which were examined above, are respected.

    2811 For the sake of completeness it was specified that such offers (and actions) should not be considered either as "interference in the armed conflict or as unfriendly acts". The expression "unfriendly acts", which was not contained in the draft, was added, as a result of an amendment. (13) It was taken from the fourth principle of the Declaration of Principles adopted by Resolution XXVI of the XXIst International Conference of the Red Cross (Istanbul, 1969). (14)

    2812 These two expressions elucidate, on the one hand, the fact that a relief action will never be considered as a lack of neutrality, (15) and, on the other hand, that such an offer or action should in no way alter the good relations existing between the Party making the offer or undertaking the relief and the adverse Party of that Party whose population is receiving the relief. And a fortiori the offer or action cannot be seen as a hostile act, let alone as an act of war.

    [p.821] ' Third sentence -- Priorities in distribution '

    2813 Article 70 constitutes an undeniable development of international humanitarian law, when compared with Article 23 of the fourth Convention, insofar as it extends the circle of those benefitting from the relief actions to the whole of the civilian population affected with regard to all essential supplies (themselves defined more widely than in Article 23 ) which may be made available by relief actions.

    2814 It should be recalled that Article 23 of the fourth Convention allows only for the distribution of medical and hospital stores and objects necessary for religious worship to the civilian population as a whole. As regards consignments of essential foodstuffs, clothing and medicines, these can exclusively be distributed to children under fifteen, expectant mothers, and maternity cases.

    2815 Thus this restriction on those benefitting from relief is removed, and as stated above, Article 23 of the fourth Convention must be considered to have been ' modified ' on this point for the Parties to the Protocol, at least in their reciprocal relations. (16)

    2816 However, this increase in the circle of beneficiaries is accompanied by a reminder that priority with regard to relief must be given to some persons, and that there is even an ' obligation ' to apply such priorities. The responsibility for ensuring that this obligation is fulfilled falls upon those responsible for the distribution of the relief. These priorities clearly show that the obligation to conduct relief actions without any ' adverse ' distinction does not mean at all that it is prohibited to favour persons with special needs.

    2817 The extent of such priorities is not specified, and one has indeed to trust those responsible for distribution in this respect. The reminder of priorities is mainly intended to encourage the search for the persons concerned, who are precisely those who have the most difficulties in standing up for themselves and their needs. In the case of equal needs, such persons should receive relief first.

    2818 Four categories of persons who must be given priority are specifically mentioned. Three of these are those who were the sole beneficiaries of such relief according to Article 23 of the fourth Convention, i.e., children, expectant mothers and maternity cases.

    2819 As regards children, the age -- limit of fifteen is not specified here, unlike in Article 23 of the fourth Convention. It may be deduced from Article 77 of the Protocol ' (Protection of children) ' that the limit of childhood is set at eighteen years of age. However, special privileges are granted children under fifteen years of age, (17) and others for newborn babies (who fall in the same category as the wounded). (18) The absence of a fixed age -- limit here therefore means that children up to eighteen years of age should have priority in receiving aid, but those responsible for distribution must first of all favour the most dependent children, i.e., in general, the youngest children -- as common sense dictates.

    [p.822] 2820 A fourth category, namely, nursing mothers, was added at the request of a delegate who stated that "babies needed food, and if mothers were to feed them, they too had to be fed". (19) This proposal was unanimously accepted, and it was stressed that it was indeed in accordance with the United Nations Declaration of the Rights of the Child (Resolution 1386 (XIV) of the General Assembly) (20)

    2821 However, the list is not exhaustive and priority must be given to any persons who, "under the fourth Convention or under this Protocol, are to be accorded privileged treatment or special protection". Examples include, in particular, wounded or sick civilians or others falling under these categories, such as the handicapped or other persons with a disability or those suffering physical or mental debilities. Similarly, persons deprived of their freedom as a result of the armed conflict (21) should also have the benefit of special attention.

    2822 The question of ' military ' wounded or sick is all the more delicate, as the Protocol is aimed at abolishing the distinction between the military wounded and sick, on the one hand, and civilians on the other. (22) Article 70 clearly refers only to the civilian population, and it would therefore certainly be excessive to maintain that all the relief involved in the actions concerned here could also benefit the military wounded and sick. On the other hand, as ' all ' the wounded and sick must be cared for, and since it is permitted to send medical stores and equipment for the military wounded and sick, (23) the Parties concerned should not oppose the inclusion of medical stores and equipment intended for the military wounded and sick in this relief. In fact, Article 23 of the fourth Convention was interpreted in this way in the Commentary on this Convention. (24)

    Paragraph 2 -- passage of relief consignments

    2823 This paragraph relates to the passage of relief consignments and lays down an obligation with regard to these.

    2824 The obligation is addressed to the "Parties to the conflict" and to "each High Contracting Party", always provided that it applies to them, i.e., that their geographical position is such that the passage of relief consignments over their territory is necessary, or even simply useful, and that an appeal has been made to them in this respect.

    2825 The Parties do not have the competence to refuse such passage. Thus they are ' obliged ' to permit and to facilitate such passage. However, this obligation does not imply agreement without limitations: the consignments, equipment and personnel concerned must be relief consignments, equipment and personnel (the adjective relates to all three terms) (25) "provided in accordance with this Section", [p.823] i.e., essential for the survival of the civilian population, sent for purely humanitarian reasons and to be distributed without any adverse distinction.

    2826 The reference to "this Section" is justified as Article 70 refers back to Article 69 ' (Basic needs in occupied territories) ' for the description of the supplies covered and the question of personnel participating in relief actions is regulated in Article 71 ' (Personnel participating in relief actions). ' However, paragraph 2 of Article 70 concerns only the passage of relief consignments intended for civilian populations other than those of occupied territories, as Article 69 ' (Basic needs in occupied territories), ' paragraph 2, refers back to the relevant articles of the fourth Convention for the passage of consignments to occupied territories.

    2827 Moreover, it is shown below that though the Parties are obliged to allow and facilitate the passage of such relief consignments, they still have the right to require certain guarantees. (26)

    2828 The obligation is addressed to States Parties to Protocol I which are not engaged in the conflict, as well as to the Parties to the conflict themselves: in fact, it is clearly stated that permission must be given, even if the assistance "is destined for the civilian population of the adverse Party". Thus a Party to the conflict may not impede such assistance by means of a blockade. (27)

    2829 Finally an obligation is imposed to allow and facilitate "rapid and unimpeded passage" of the relief consignments, equipment and personnel. The intention of these words is to avoid any harassment, to reduce formalities as far as possible and dispense with any that are superfluous. Customs officials and the police in particular should receive instructions to this effect. The passage referred to may take place over land, water, or by air. However, the speed of the passage and whether it takes place unimpeded depends on local circumstances. Thus the obligation imposed here is relative: the passage of the relief consignments should be as rapid as allowed by the circumstances. Obviously the passage is in danger of being difficult across territory or through the airspace of a Party to the conflict, and no one is expected to do the impossible: such a Party must do all it can to facilitate the passage of relief consignments. On the other hand, if it does not -- consider itself to be in a position to guarantee the safety of a consignment, it should say so clearly so that an alternative solution can be sought, or if there is none, the decision to take the risk or to give up the relief action is taken with full knowledge of the facts.

    Paragraph 3 -- The right of supervision of transit States

    2830 As shown above, paragraph 2 imposes an ' obligation ' to allow and facilitate the passage of relief consignments, but this obligation still depends on a certain number of conditions which may be made by the Parties to which the obligation applies.

    [p.824] ' Sub-paragraph (a) -- Technical arrangements '

    2831 First, such Parties have the right to "prescribe the technical arrangements, including search, under which such passage is permitted". Article 23 of the fourth Convention contains a similar right ("the right to prescribe the technical arrangements"). As the commentary on the fourth Convention states:

    "No mention is made of the points on which its instructions will bear, but it will be agreed that the Power authorizing free passage is entitled to check the consignments and arrange for their forwarding at prescribed times and on prescribed routes." (28)

    The arrangements may be prescribed for each case individually, but on the whole a general agreement is preferable, applicable to all consignments within a certain period, if larger scale relief actions are being undertaken. The right to prescribe such arrangements should, moreover, only be used without infringing the obligation to facilitate the rapid and unimpeded passage of relief consignments as laid down in the preceding paragraph.

    ' Sub-paragraph (b) -- Supervision of distribution '

    2832 Next, the Parties may make their agreement to allow such passage conditional "on the distribution of this assistance being made under the local supervision of a Protecting Power". Obviously this element of supervision is of paramount importance, all the more as the range of relief consignments permitted is far broader than it was under the provisions of the fourth Convention. (29) In fact, if relief, such as, for example, foodstuffs or tents, were to end up in the hands of the armed forces, the relief action would undoubtedly increase the military potential of the receiving Party and would be obviously unacceptable to the adverse Party which had allowed the passage of these goods, but also to a Party to the Conventions not engaged in the conflict, whose status of neutrality would be in danger of being questioned by the adverse Party of the recipient.

    2833 Such supervision must be carried out by ' a Protecting Power. ' The singular is used here, although there could be several Protecting Powers in action in the territory of a Party to the conflict, namely when there are several Parties to the conflict which have designated different Protecting Powers. However, it is clear that the supervisory task cannot fall on any Protecting Power other than that or those who are active in the territory of the receiving Party with the consent of the belligerents. (30)

    2834 The reference to a Protecting Power also covers the substitute appointed in accordance with Article 5 ' (Appointment of Protecting Powers and of their substitute). ' (31)

    [p.825] 2835 The draft referred to supervision of a Protecting Power "or an impartial humanitarian organization". The question of retaining or deleting this expression was subject to discussion during the CDDH. (32) Its deletion is actually logical and in accordance with the system of the Protocol.

    2836 In fact, the system laid down in the Conventions envisages the possibility of failure, not only in the appointment of a Protecting Power, but also that of a substitute, in which case an impartial humanitarian organization, such as the ICRC, would assume "the humanitarian functions performed by Protecting Powers under the present Convention". (33) In this case, such an organization is not acting officially ' in the capacity of a substitute, ' even if this difference is not of great practical importance.

    2837 In the system of the Protocol, failure with regard to the appointment of Protecting Powers is also taken into account, but in this case the Parties to the conflict are ' obliged ' to accept the offer of the ICRC or of any other "organization which offers all guarantees of impartiality and efficacy [...] to act as a substitute". As failure to appoint a substitute does not arise in the Protocol, it was not really necessary to provide for an alternative in paragraph 3 under consideration here, i.e., that supervision must be exercised by an impartial humanitarian organization. If such an organization does take over the supervision, it does so as a substitute. (34)

    2838 However, the possibility of failure with regard to the appointment of a substitute should not be completely ruled out. In this case there would have been a failure to apply Article 5 ' (Appointment of Protecting powers and of their substitute), ' but this should not paralyze the Protocol as a whole. A wholly formalistic approach in this respect would be contrary to the spirit of the Protocol, as stated in the CDDH. (35) Thus it is a question of finding an ad hoc solution, and the ICRC, whose right of initiative was confirmed and reinforced in the Protocol, (36) could play an important role in this context.

    2839 Moreover, it should be noted that Article 23 of the fourth Convention mentions supervision of "Protecting Powers", and that this was not considered to be exclusive in the commentary on the article:

    "Although the Convention expressly mentions only the Protecting Powers, they are not alone in being able to assume responsibility for supervising the distribution of the consignments. Recourse might also be had to the good offices of another neutral State or any impartial humanitarian organization." (37)

    2840 The supervision relates to the distribution of the assistance. The way in which such supervision should be carried out is not specified and it is up to the Protecting Power (or its substitute) which is responsible for carrying out the supervision, to [p.826] establish measures which are sufficiently strict to guarantee that the relief consignments will actually arrive at their legimitate destination. However, a slight loss of supplies should be tolerated in view of the difficulty of the task and this should not be used as a pretext to suspend any relief actions.

    2841 By way of example, the commentary on Article 23 of the fourth Convention mentions some measures conducive to ensuring control, such as "receipts for individual consignments, frequent spot checks in depots and warehouses, periodical verification of distribution plans and reports". (38)

    2842 The personnel of the Protecting Power and the personnel mentioned in Article 71 ' (Personnel participating in relief actions) ' should play an important role in this respect.

    2843 As regards the ICRC, it has established a very strict system of control for all the relief consignments which it provides.

    ' Sub-paragraph (c) -- Rule that relief consignments shall not be diverted and exception '

    2844 The first part of this sub-paragraph (c) does not lay down a right, but emphasizes an obligation: the Parties allowing passage "shall, in no way whatsoever, divert relief consignments from the purpose for which they are intended nor delay their forwarding". In fact, this is a superfluous reminder, as the obligation is covered by that contained in paragraph 2, namely, to facilitate the rapid and unimpeded passage of all such consignments.

    2845 However, the exception to this obligation -- which indeed is strictly circumscribed -- contains an additional right for the Party allowing the transit. In very rare cases, such a Party may delay the relief consignment or even divert it from its destination. Nevertheless, this can only be in "cases of urgent necessity", i.e., it must be virtually impossible to do otherwise, and such delay or diversion must be in the interests of the civilian population receiving the relief.

    2846 In concrete terms, the delay can only really be justified if it is impossible for reasons of security to enter the territory where the receiving population is situated, or to cross some part of the territory of the Party allowing the transit, particularly if this is a Party to the conflict.

    2847 As regards diverting relief consignments, this would be allowed particularly when there is a delay in the transport of perishable foodstuffs, always provided that they are replaced by fresh provisions as soon as normal conditions are restored. It might also be justifiable in the case that a disaster -- such as an earthquake, epidemic etc. -- affected the Party through whose territory the relief consignment was passing, so that the provisions were even more necessary for the victims of this disaster than for those for whom they had initially been intended. However, in this case the consignment should certainly only be diverted with to the agreement of the donor. (39)

    [p.827] 2848 Finally, it should be noted with regard to paragraph 3, as for the whole of Article 70 , that the conditions which may be imposed by the Party allowing the passage of relief consignments are less restrictive than those in Article 23 of the fourth Convention, of which the second paragraph, which actually related only to the adverse Party, was simply omitted. Apart from the conditions mentioned above, the Party concerned could also refuse transit through its territory, in the context of Article 23 , if it had:

    "serious reasons for fearing:
    a) that the consignments may be diverted from their destination,
    b) that the control may not be effective, or
    c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods".

    2849 These conditions have a subjective character, since they depend on the judgment of the Party through whose territory the consignments must pass, regarding the possibility of control by the Protecting Power (sub-paragraph (a)) and, if appropriate, regarding the quality of such control. This should not serve as a ' pretext ' to refuse passage (despite the reference to "serious reasons").

    2850 Moreover, paragraph 2(c) of Article 23 of the fourth Convention actually goes even further and virtually allows the blockage of any relief action. In fact it is clear that such an action, even if it all goes to the civilian population needing it, to some extent relieves the burden on the economy of the receiving Party. However, this is a question of proportionality: there is no way in which one could weigh the humanitarian considerations of an action destined to ensure the survival of a civilian population lacking essential supplies against the military advantage that such an action could have for the receiving Party, which would in any case always be minimal and indirect, even though it would be wrong to deny its existence altogether.

    2851 Article 70 of the Protocol in this respect modifies Article 23 of the fourth Convention, and the second paragraph of that article should be considered as obsolete in any armed conflict to which Protocol I applies.

    2852 In any case, the reform introduced on this point by the Protocol is perfectly logical.

    2853 As the Parties concerned may make their permission to allow the passage of relief consignments through their territory conditional on the supervision of the distribution by a Protecting Power (or its substitute), it becomes the responsibility of the latter once it accepts the mandate, and as soon as the relief reaches the territory of the receiving Party. The Party which has given permission for the passage is relieved of all responsibility from that moment.

    2854 If the Protecting Power which has accepted the mandate does not actually exercise effective supervision, it is up to the Party to the conflict which has appointed it to react, or even in extreme cases, to withdraw the mandate which it had given in accordance with Article 5 ' (Appointment of Protecting Powers and of their substitute), ' paragraph 2, of the Protocol. However, it should not reproach [p.828] the Party which has permitted the passage for the ineffective way in which the Protecting Power appointed by it has carried out its task.

    2855 Moreover, if the Protecting Power declares that it is unable to carry out the mandate, the condition of paragraph 3(b) of Article 70 is not fulfilled and the Party concerned may refuse to allow the passage of the relief consignments.

    2856 Thus, the required guarantees have been retained within the framework of the system introduced in Article 70 , while reducing to a minimum the possibility for the Parties which have been requested to allow relief consignments to pass through their territory, to escape their obligations by invoking reasons based on subjective and unverifiable judgments.

    Paragraph 4 -- Obligation of Parties to the conflict with regard to protection and distribution of relief

    2857 This paragraph is addressed to the Party to the conflict receiving the relief. It applies to the extent that the principle of such relief consignments have been accepted by that Party in accordance with paragraph 1.

    2858 The obligation to ' protect ' relief consignments means, on the part of the Party concerned, that it must do its utmost to prevent such relief from being diverted from its legitimate destination, particularly by strictly punishing looting and any other diversion of relief and by providing clear and strict directives to the armed forces.

    2859 If the authorities do not have the means to ensure such protection, particularly if they cannot prevent looting and diversion of relief consignments, the whole question whether the relief action can continue is obviously put in jeopardy, first from the point of view of the donors, then the Parties allowing the passage over their territory, and finally, and most of all, the adverse Parties of the receiving Party.

    2860 Relief actions undertaken under the auspices of the ICRC, and consequently enjoying the protection of the red cross emblem, raise a special problem with regard to the obligations of the Parties to the conflict benefitting from the relief to ensure the protection of the relief consignments.

    2861 The protective emblem should by itself ensure the protection of such consignments and the neutrality of the emblem should preclude them from being escorted by members of the armed forces. On the other hand, the employment of mine disposal vehicles for clearing minefields seems acceptable provided that a respectable distance is maintained between such vehicles and the Red Cross convoy.

    2862 If the Party to the conflict benefitting from relief considers that the protection of the emblem is insufficiently effective, it should ask to be explicitly relieved of its responsibility, at least with regard to any abuse by the armed forces of the adverse Party.

    2863 When the risk results from a lack of discipline or of knowledge of the emblem by the armed forces of the Party concerned, the latter should undertake a major effort of dissemination to ensure simultaneously that the significance of the protective emblem is understood and that the Red Cross mission is accepted.

    [p.829] 2864 Finally, as regards banditry or riots which might be brought about by relief operations among a starving population, the ICRC should be able to rely on the support of the police force, if this is necessary, and if it so requests.

    2865 The Parties to the conflict benefitting from relief consignments also have an obligation to ' facilitate their rapid distribution. ' This means that they should give all the required facilities to any personnel accompanying the relief consignments and to the Protecting Power (or its substitute) responsible for the supervision of distribution, though without interfering with the distribution itself.

    Paragraph 5 -- International co-ordination

    2866 The co-ordination of relief in armed conflicts, as in the case of natural disasters, raises very real problems. All too often the lack of co-ordination has resulted in an imbalance in consignments, some foodstuffs being sent in too large quantities and perishing in warehouses, while others remain lacking; and then perhaps foodstuffs or materials not adapted to the conditions are being sent, and other consignments are being made without taking into account the requirements of the infrastructure (particularly the means of transport) that must be met in order to ensure their distribution.

    2867 Paragraph 5 lays down the principle of ' effective ' international co-ordination (of a factual, not merely a formal nature) of relief. The obligation is laid down for all Parties concerned -- i. e., donors, transit countries and beneficiaries -- and it relates to any action undertaken during an international armed conflict in which the Protocol applies, destined for a territory controlled by a Party to the conflict other than an occupied territory.

    2868 Nevertheless, it does not lay down a specific system of co-ordination. In the Working Group of Committee II, which discussed this question, some wished to add that international co-ordination should be carried out "by international bodies such as the United Nations or the International Red Cross". (40) However, this remark did not meet with the agreement of either the Working Group (41) or the group of representatives of the Red Cross. (42)

    2869 Thus the principle of co-ordination is merely mentioned. It allows for ad hoc solutions, but obviously does not prevent the adoption of supplementary international agreements aimed at dealing with this problem in a definitive way. (43)

    ' Y. S. '


    (1) [(1) p.816] On this subject, cf. commentary Art. 69, supra, p. 811;

    (2) [(2) p.816] Cf. commentary Art. 68, supra, p. 809, and Art. 50, supra, p. 609;

    (3) [(3) p.816] O.R. XII, p. 333, CDDH/II/SR.87, para. 5;

    (4) [(4) p.817] This problem is not dealt with here. Cf. ' Commentary IV, ' particularly Art. 6, pp. 60 ff.;

    (5) [(5) p.817] The problem of such territories is not dealt with in the context of this commentary. In this respect, cf. in particular the Resolutions of the General Assembly, proposed by the Fourth Committee. Cf. also ' UN Chronicle, ' October 1979, p. 28; January 1980, p. 51: September 1983, pp. 17-19 (with regard to the last territory under the United Nations Trusteeship System);

    (6) [(6) p.817] Cf. commentary Art. 69, supra, pp. 812-813;

    (7) [(7) p.817] On this subject, cf. commentary Art. 69, supra, p. 814;

    (8) [(8) p.818] This remark is part of the text accompanying the principle of impartiality in the "Proclamation of the Fundamental Principles of the Red Cross", adopted by Resolution IX of the XXth International Conference of the Red Cross, Vienna 1965. It also applies in the present context. On the subject of this principle, cf. also J. Pictet, ' The Fundamental principles of the Red Cross, Commentary, ' Geneva, 1979, pp. 33-51;

    (9) [(9) p.819] O.R. XII, p. 336, CDDH/II/SR.87, para. 27;

    (10) [(10) p.819] Ibid., p. 337, para. 30;

    (11) [(11) p.819] On this subject, cf. in addition commentary Art. 54, supra, pp. 653-654;

    (12) [(12) p.820] On this subject, cf. infra, pp. 822-823;

    (13) [(13) p.820] Cf. O.R. III, pp. 282-283, CDDH/II/398 and Add. 1, and O.R. XII, p. 319, CDDH/II/SR.84, para. 45;

    (14) [(14) p.820] On this subject, cf. introduction to this Section, supra, p. 805;

    (15) [(15) p.820] On the meaning of neutrality in this context, cf. commentary Art. 19, supra, p. 237;

    (16) [(16) p.821] On this subject, cf. commentary Art. 68, supra, p. 809;

    (17) [(17) p.821] Cf. Art. 77, paras. 2 and 3;

    (18) [(18) p.821] Cf. Art. 8, sub-para. (a);

    (19) [(19) p.822] O.R. XII, p. 336, CDDH/II/SR.87, para. 25;

    (20) [(20) p.822] Ibid., p. 337, para. 35;

    (21) [(21) p.822] On this subject, cf. Art. 11;

    (22) [(22) p.822] In this respect, cf. commentary Art. 8, sub-para. (a), supra, pp. 116-118;

    (23) [(23) p.822] Cf. particularly Art. 38, Second Convention;

    (24) [(24) p.822] Cf. ' Commentary IV, ' p. 180;

    (25) [(25) p.822] Cf. O.R. XII, p. 339, CDDH/II/SR.87, para. 48;

    (26) [(26) p.823] Cf. commentary para. 3, infra;

    (27) [(27) p.823] On the question of blockades, cf. commentary Art. 54, supra, pp. 653-654. Cf. also commentary Art. 68, supra, p. 810, and note 2;

    (28) [(28) p.824] ' Commentary IV, ' p. 184;

    (29) [(29) p.824] On this subject, cf. commentary Art. 68, supra, p. 810;

    (30) [(30) p.824] In this sense, cf. O.R. XII, pp. 339-342. CDDH/II /SR.87, paras. 49-74;

    (31) [(31) p.824] Cf. commentary Art. 5, para. 7, supra, p. 89;

    (32) [(32) p.825] Cf. O.R. XII, pp. 339-343, CDDH/II/SR.87, paras. 49-86;

    (33) [(33) p.825] Cf. Art. 10/10/10/11, para. 3, common to the Conventions;

    (34) [(34) p.825] For further details on this subject, cf. commentary Art. 5, paras. 3 and 4, supra, pp. 82-87;

    (35) [(35) p.825] Cf. O.R. XII, p. 340, CDDH/II/SR.87, para. 59;

    (36) [(36) p.825] Cf. Art 81, para. 1;

    (37) [(37) p.825] ' Commentary IV, ' p. 183;

    (38) [(38) p.826] Ibid., p. 183;

    (39) [(39) p.826] On the meaning of the expression "except in cases of urgent necessity", cf. also ibid., Art. 60, p. 323;

    (40) [(40) p.829] O.R. XII, p. 334, CDDH/II/SR.87, para. 6;

    (41) [(41) p.829] Cf. ibid;

    (42) [(42) p.829] Cf. ibid., p. 344, para. 95;

    (43) [(43) p.829] Without going into details with regard to this problem, mention should be made in particular of the creation by Resolution 2816 (XXVI) of the United Nations General Assembly of the "Office of the Unite Nations Disaster Relief Co-ordinator" (UNDRO); the adoption by the XXIst International Conference of the Red Cross in 1969 of "Principles and Rules for Red Cross Disaster Relief" -- in addition to the Declaration of Principles mentioned in the introduction to this Section, supra, p. 805 and note 1; the 1969 Principles and Rules were modified in 1973, 1977 and 1981; and the existence of an agreement of 25 April 1969 (and its interpretation of 18 December 1974) between the ICRC and the League "for the purpose of specifying certain of their respective functions", particularly in the field of relief;