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Commentary - 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);