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Commentary - Art. 61. Part III : Status and treatment of protected persons #Section III : Occupied territories
    ARTICLE 61. -- DISTRIBUTION (1)


    [p.325] Article 61 contains the rules governing the carriage and distribution of the relief consignments mentioned in the preceding Articles (Articles 59 and 60 ).
    Experience in this connection during the Second World War showed that the effectiveness of the relief given depended on the arrangements made for its carriage and distribution (2).

    PARAGRAPH 1. -- CO-OPERATION AND SUPERVISION

    1. ' Protecting Power '

    The first sentence says that the relief supplies are to be distributed with the co-operation and under the supervision of the Protecting Powers. While the Convention assigns the leading rĂ´le to those Powers, it will be seen later that other neutral States may also play a part under certain circumstances.
    What will the duties of the Protecting Powers be? The Convention merely states that they are to co-operate in the distribution of the relief consignments, which will take place under their supervision. It gives no details of the steps to be taken. This omission is reasonable, for a systematic set of regulations would hardly be appropriate in such a vast field. A certain number of basic principles have been laid down on the basis of which relief actions can be carried out with sufficient flexibility to meet any new contingency which may arise.
    What is most important is that the supervision should be effective; without strict, efficient supervision the whole work may be jeopardized. The relief supplies must reach the people for whom they are intended and every precaution must be taken to ensure that the recipients do not place them on the "black market": frequent spot checking in storehouses, constant surveillance of the actual distribution and verification of the reports drawn up by the distributing bodies are among the measures which will make it possible to ensure that the supplies are used for their correct purpose.
    The Convention does not prescribe any standard method of distribution. Experience has proved that the method of distribution will depend on a whole complex of factors (the political, economic and social conditions in the country to which assistance is given; the extent and kind of relief). During the recent wars distribution was [p.326] carried out by the National Red Cross Societies, which received the consignments from abroad and then divided them among their local branches, while Delegates of the International Committee of the Red Cross gave their assistance and attended the actual distribution. Action by the National Red Cross Society often took place at the same time as that of other charitable organizations, and a co-ordinating committee then ensured that the arrangements worked properly.

    2. ' Delegation of the duty of supervision '

    The second sentence gives the Protecting Power the option of delegating the duties referred to above. The agent to which they are delegated may be a neutral State other than the Protecting Power, or it may be the International Committee of the Red Cross or "any other impartial humanitarian body".
    There are two reasons why the International Committee of the Red Cross is mentioned here by name (as in Article 59 ): firstly because of its past action and experience in this field; secondly because of its character as a neutral intermediary.
    The words "any other impartial humanitarian body" (3) recall the work done by a large number of humanitarian organizations during the Second World War.
    The duties may only be delegated by agreement between the Occupying Power and the Protecting Power, not by unilateral action. The agreement of the two parties is an essential condition as a guarantee that the work will be done.
    To co-operate in the distribution of relief and exercise efficient supervision, it is necessary to have a numerous and well-instructed staff. The humanitarian organizations called upon to replace the Protecting Power must not only offer every proof of being impartial, but must also have available the necessary qualified staff and material resources. This factor is certain to carry great weight when the Powers reach their decision. These provisions do not duplicate those contained in Article 11 concerning substitutes for the Protecting Powers. Article 11 deals with the automatic replacement of the Protecting Power, whereas Article 61 only considers the delegation by common accord, of certain limited tasks, whose delegation will not in any way affect the Protecting Power's other activities under the Convention. Article 11 presumes the absence of a Protecting Power, whereas Article 61, on the contrary, presumes its existence (4).

    [p.327] PARAGRAPH 2. -- EXEMPTION FROM CHARGES

    1. ' General rule '

    In this clause the special and eminently humanitarian character of relief supplies is taken into account. It would be deplorable for people to be left without relief supplies because they were not in a position to pay the customs duty normally charged on imported articles. If such dues were paid by the donors, on the other hand, they would almost certainly be deducted from the total amount of relief supplied.
    Consequently the Conference decided unanimously to exempt relief consignments in occupied territory from import and customs duties and also from all taxes. The extent to which there may be exemptions to this rule will be seen further on under 2.
    It does not follow that the relief supplies must be given free of charge to the general public: the rule according to which individual relief consignments cost nothing is not applied to collective consignments for fear of disorganizing the economic system of the country to which they are sent. The fact that the Convention exempts individual relief consignments from duties and charges shows once more that the provisions of Articles 59 and 61 apply only to relief stores in the strict sense of the term, that is to say articles of prime necessity, essential for the subsistence and health of the population.

    2. ' Reservation '

    The rule exempting relief supplies from all charges, taxes or customs duties is not absolute. The Diplomatic Conference entered a reservation to the effect that such charges may be levied on relief consignments when it is in the interests of the economy of the occupied territory. The purpose of the Conference in so doing was to allow for certain relief consignments not being gifts but being sent against payment, under a long-term arrangement between governments (5). Whether this provision is justified or not, it is essential that belligerents should endeavour to regard it as absolutely exceptional, since to grant absolute exemption from all charges is really the only way of acting in the true spirit of relief actions and, in the great majority of cases, is in the real interests of the countries to which relief is sent.

    [p.328] 3. ' Distribution facilities '

    The second sentence in paragraph 2 says that the Occupying Power is to facilitate the rapid distribution of the consignments. The effect of a relief scheme will depend above all on the time the consignments take to reach the recipients; it is therefore important for the occupation authorities to take all necessary steps to facilitate their despatch and distribution (cutting out red tape, making transport available, granting permits allowing freedom of movement, facilities of all kinds for the staff of the distributing and supervising bodies, etc.).

    PARAGRAPH 3. -- TRANSIT

    Article 61 emphasizes, lastly, that all Contracting Parties should endeavour to permit the transit and transport, free of charge, of relief consignments on their way to occupied territory.
    The clause refers only to the financial aspect of the transit and transport of relief consignments, and not to the question of free passage (Article 59, paragraph 3 ). It does not lay an obligation on any State to permit the transit and transport of relief, free of charge, through its territory. The Conference considered that a provision of that nature might place an unfair burden on a small country through which large amounts of supplies were passing and that it might consequently delay the passage of those supplies. The clause inserted was not, therefore, made binding, but cast in the form of an urgent recommendation to all States whose lines of communication are used for relief consignments. (6)


    Notes: (1) [(1) p.324] For the development of Article 61, see ' Final
    Record, ' Vol. I, p. 122; Vol. II-A, pp. 752, 832; Vol.
    II-B, pp. 422-423;

    (2) [(1) p.325] See ' Report of the Joint Relief Commission of
    the International Red Cross, 1941-1946, ' pp. 133-139;

    (3) [(1) p.326] National Red Cross Societies are naturally
    included;

    (4) [(2) p.326] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 752 and
    832;

    (5) [(1) p.327] See ' Final Record, ' Vol, II-A, pp. 752 and
    832; Vol. II-B, pp. 422-423;

    (6) [(1) p.328] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, p. 832. It is
    worthy of mention in this connection that from 1940
    onwards Switzerland, a country of transit ' par
    excellence, ' permitted the transport and transit, free of
    charge, of consignments intended for the civilian
    population in occupied territory;