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Commentary - Art. 75. Part III : Captivity #Section V : Relations of prisoners of war with the exterior
    ARTICLE 75. -- SPECIAL MEANS OF TRANSPORT


    [p.368] GENERAL

    During the Second World War, the International Committee of the Red Cross resorted to the use of vessels bearing the red cross emblem which held a special status. This initiative was a new departure, and was not based on any provisions of the Tenth Hague Convention of 1907 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of July 6, 1906.
    These cargo vessels were used solely for the transport of mail and relief for war victims: prisoners of war and civilian internees, and as an exception, civilians in occupied territories. They sailed under the control of the International Committee of the Red Cross in accordance with agreements which it had concluded with the belligerent States concerned (1).
    Special mention should be made of this activity. Some of the Vessels used were acquired by the "Foundation for the Organization of Red Cross Transports", while others had a special status but retained the nationality of the neutral country to which they belonged. They all flew the flag of the International Committee of the Red Cross. These vessels sailed mainly on the following routes: Lisbon-Marseilles, North Africa, South America, North America, Aberdeen-Göteborg, Göteborg-Lübeck. One can easily imagine the many technical difficulties involved in organizing in war-time, without any relevant international convention, a fleet which managed to get through all blockades. The present Article 75 provides a legal basis for any such action by the International Committee of the Red Cross in the future.
    [p.369] During the work of the Commission of Experts convened by the International Committee in 1937 to study the question of revising the Tenth Hague Convention, it was considered that the question of protecting vessels with the red cross emblem on the one hand, and the transport of hospital supplies, on the other hand, should be settled by lad hoc agreements between the belligerents.
    In the light of experience, the International Committee of the Red Cross proposed at the 1947 Conference of Government Experts that the new Convention should contain a provision concerning transport, with particular reference to the establishment of Red Cross navigation. The following principles were cited: the advisability of having such a service from the humanitarian point of view, its neutral status, and the granting of the necessary immunities, facilities and guarantees for costs to be met.
    The Commission of Government Experts did not examine these various points, but merely recognized the desirability of establishing Red Cross navigation and made a proposal on the following points: the belligerents should place at the disposal of the International Committee of the Red Cross or some other humanitarian organization the necessary means of transport (ships or aircraft); neutral registration; the use of the red cross flag; delivery of the necessary safe-conducts; apportionment of costs; determination of the goods which might be conveyed by such means of transport (2).
    The proposal was approved and the text was therefore inserted in the draft submitted to the XVIIth International Conference of the Red Cross. Its scope had, however, been extended by a reference to non-maritime transport (railway wagons, motor vehicles, etc.) and the reference to registering had been deleted, as it was applicable only to maritime transport (3).
    Despite some objections (4), these proposals were adopted at the 1949 Diplomatic Conference, with the introduction of a new paragraph (paragraph 3), reserving the right of the Parties to arrange other means of transport or to grant safe-conducts only under conditions which could be agreed (5).
    The 1949 Convention therefore contains in the present Article a provision which was not included in the 1929 text. Before examining [p.370] the conditions which govern special means of transport, however, it should be pointed out that it is in the first place the Powers concerned which are required by Article 75 to assure the conveyance of relief and other shipments for prisoners of war.
    The term "Powers concerned" refers here not only to the Detaining Power and the Power on which prisoners of war depend, but also to the neutral or belligerent Powers through whose territory consignments pass in transit, and the latter Powers may not therefore leave the obligation unfulfilled on the grounds that such consignments are no direct concern of theirs. As will be seen later in connection with special means of transport, Article 75 specifies that the Powers concerned may be released from this obligation only if military operations prevent them from carrying it out.
    Certain States sometimes granted priority to relief consignments addressed to prisoners of war; should this always be done? The Convention specifies, in Article 71, paragraph 1 , last sentence, that priority must be given to the correspondence of prisoners of war, but it makes no such stipulation for relief shipments. It may be inferred, however, from the provisions of the Convention, that relief supplies must always be transported under satisfactory conditions. This conclusion derives in the first place from the fact that the Powers concerned are expressly required to "assure" the transport of relief shipments; it derives also from Article 76 , concerning the examination of consignments, which shows the importance attached by the Convention to ensuring that such consignments are delivered to the addressees before their contents can deteriorate.
    The Powers concerned are only released from the obligation to assure the transport of shipments addressed to prisoners of war if military operations prevent them from doing so. In that case, however, they must allow a charitable organization to ensure the conveyance of the shipments in their stead.
    The purpose of Article 75 is to establish rules governing the intervention of a charitable organization in these circumstances.

    PARAGRAPH 1. -- CONDITIONS FOR APPLICATION
    AND FUNDAMENTAL PRINCIPLES

    1. ' First sentence. -- Conditions for application '

    The conditions necessary for the establishment of special means of transport are fulfilled when "military operations prevent the Powers concerned" from assuring the transport of relief shipments.
    [p.371] The term "military operations" must be understood in a very broad sense. It refers not merely to the movement of armies but rather to the military situation resulting from that movement and even to the circumstances of war. If as a result of those circumstances a neutral country were no longer able to replace its rolling, -stock and were consequently prevented from assuring the transport of shipments addressed to prisoners of war, such a situation would exist.
    The relationship between military operations and the impossibility of forwarding relief may be direct (for instance, if a belligerent Power is surrounded by adversaries), or it may be indirect (a Power may no longer be able to make the required means of transport available for conveying relief shipments because the former have been destroyed by enemy bombardment).
    Last but not least, the difficulty need not be absolute. The present Article becomes applicable whenever, as a result of the war, it is no longer possible to forward relief supplies under normal conditions.
    Which organizations are authorized to intervene in order to ensure the conveyance of relief shipments? The text is drafted in such a way as to permit action by all those who may be able to assist; in addition to the Protecting Powers concerned and the International Committee of the Red Cross, it refers to "any other organization". This last term might in the first place apply to "any other organization assisting prisoners of war"; in the Convention this covers essentially relief societies, whether national or international (6). If Heed be, however, it might also apply to an organization whose normal activities do not include assistance to prisoners of war, such as a State agency or even a purely commercial private firm.
    The Powers concerned are afforded all the safeguards which they are entitled to expect, since they are to permit action by an organization which may perhaps not be of a national character, in a field which is normally theirs alone and is in the vicinity or even in the theatre of military operations. It may be assumed that the Protecting Powers or the International Committee of the Red Cross generally enjoy the confidence of the Powers concerned. On the other hand, the present paragraph provides that any other organization must be "duly approved" by the Powers concerned. Such approval may be implicit if at the outbreak of hostilities a particular society has been granted general authorization to operate in the territory of a particular Power; in individual cases, however, it may also be given to an organization set up in order to provide special means of transport.

    [p.372] 2. ' Second sentence. -- Facilities '

    The Powers party to the Convention must endeavour to facilitate the task of any organization which, with the approval of the belligerents directly concerned, undertakes to ensure the conveyance of shipments addressed to prisoners of war. It should be noted that such an attitude is required not only of the Powers directly interested in the work of the organization in question, but also of all the States party to the Convention, since in the final analysis the work accomplished by the organization is in the general interest. At the same time, however, the word "endeavour" shows that each of them is required to conform to this attitude to the extent that circumstances and its own resources enable it to do so.
    In this connection, a distinction may be made between the two facilities mentioned. The organization in question may ask the High Contracting Parties to "endeavour to supply them with such transport", but the chances of a favourable response will obviously vary greatly depending on whether or not the State concerned has extensive resources, is a Party to the conflict or is directly affected by the hostilities. On the other hand, the question of allowing travel and granting safeconducts for special means of transport would probably only give rise to technical or administrative difficulties which can be settled in the normal way. At most, it is conceivable that military necessity might oblige a belligerent to refuse permission of this kind, provided that the refusal is temporary and for the shortest time possible.
    Lastly, it should be noted that the Convention does not tackle the very important question of the protection of special transport against the effects of war. It mentions no general obligation to protect and respect special means of transport and one may only infer that such an obligation exists from the fact that the Powers concerned are required to allow special transport. This is a matter which will be settled by special agreements. Such agreements might contain specific provisions concerning the conditions to be fulfilled by such transport, the routes to be followed, and the signs to be displayed for identification purposes. The experience gained during the Second World War may be helpful in this connection.
    In particular, it should be noted that, with the consent of the Powers concerned, the special means of transport organized by the International Committee of the Red Cross during the Second World War were placed under the red cross emblem and therefore enjoyed the protection which that emblem afforded. Article 44 of the First [p.373] Convention of 1949 provides that the red cross emblem may be used by international Red Cross organizations, and the International Committee could therefore mark with that emblem any special transport which it might be called upon to establish.

    PARAGRAPH 2. -- ARTICLES WHICH MAY BE CONVEYED
    BY SPECIAL TRANSPORT

    First and foremost, Article 75 was drawn up in order to ensure the conveyance of relief supplies, for which purpose special transport will generally be used. As may be seen from the enumeration in the first sentence of the Article, however, and the additional list in paragraph 2, other items may also be conveyed by this means. Two principles may be inferred from these provisions:

    (a) special transport may be used for all articles which concern
    prisoners of war directly or indirectly. It is therefore available
    for the correspondence of official institutions concerning prisoners
    of war, and also for that of private organizations or relief
    societies assisting prisoners of war.

    (b) Special transport must be used for conveying articles concerning
    prisoners of war, regardless of the origin of such articles. If a
    certain relief organization undertakes to ensure conveyance over a
    given route by special means of transport and succeeds in doing so,
    it may not, in principle, reserve those facilities solely for relief
    shipments sent by societies under its control or with which it is
    affiliated; it must also accept shipments sent by any other
    organization which gives regular assistance to prisoners of war.
    According to the spirit of the Convention, it would merely be
    supplementing, on certain routes, the postal, rail or maritime
    services which must be assured as far as possible, even in wartime.

    PARAGRAPH 3. -- RESERVATION: FREEDOM OF THE PARTIES
    TO MAKE OTHER ARRANGEMENTS

    As has been seen, a Power which is prevented from assuring the transport of shipments must agree to action being taken in order to ensure conveyance by means of special transport. It goes without saying that a Power which can no longer count on its usual means of [p.374] transport may itself take the initiative of calling on a special organization, or of requesting the national Red Cross Society to undertake the task of forwarding relief shipments -- as has already occurred in the past -- or it may even ask a foreign organization to do so.
    Paragraph 3 of Article 75 was included in order to safeguard this freedom. One may wonder, however, whether the provision is really necessary. Even if the Powers concerned themselves take the initiative of establishing special transport, they are only fulfilling their basic obligation to assure the transport of relief shipments, and there is therefore no need for outside intervention. In no event may this provision be invoked by a Power which is prevented from assuring the transport of shipments in order to avoid accepting the offers made by a serious organization.

    PARAGRAPH 4. -- APPORTIONMENT OF EXPENSES

    This paragraph deals with the expenditure involved in the use of special transport, but not the expenditure incurred in setting up the special transport system. On this latter point the Convention says nothing and it is therefore to be supposed that such expenses will be covered by agreement between the body which takes the initiative in the matter and the Powers concerned. In this connection, one should remember that certain facilities must be accorded and in particular the Powers concerned must endeavour to "supply" such an organization with transport, that is to say, must enable it to obtain transport free of charge.
    As for running costs, the rule is simple. They will be apportioned between the Powers whose nationals have the benefit of special transport. The expenses will be apportioned by the organization which sets up the transport system.
    The Convention provides an exception, however, to the rule of proportional payment: the matter may be dealt with by special agreements. A belligerent, through lack of financial means, might not favour the use or establishment of special transport, while the adverse Party is ready to take over the expenditure completely. In such a case, it would be regrettable if the rule referred to above were so absolute as to prevent the organization of special means of transport under slightly different conditions.


    * (1) [(1) p.368] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War ', Vol. III, pp. 124-165, and especially pp. 127-158;

    (2) [(1) p.369] See ' Report on the Work of the Conference of
    Government Experts, ' pp. 189-190;

    (3) [(2) p.369] See ' XVIIth International Red Cross
    Conference, Draft Revised or New Conventions for the
    Protection of War Victims, ' pp. 99-100;

    (4) [(3) p.369] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, pp. 287-288;
    Vol. III, p. 78, No. 140;

    (5) [(4) p.369] Ibid., Vol. II-A, p. 370;

    (6) [(1) p.371] See the commentary on Article 125;