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Commentary - Art. 10. Part I : General provisions
    [p.93] ARTICLE 10. -- ACTIVITIES OF THE
    INTERNATIONAL COMMITTEE OF THE RED CROSS


    GENERAL BACKGROUND

    During the First World War, the International Committee of the Red Cross did a great deal of work in behalf of prisoners of war and a certain amount for civilians, without having any legal basis for its actions. It will be remembered, for example, that in the course of the war it set up the International Prisoners of War Agency, which was to be of immense service and that visits to prisoner-of-war camps by its delegates became general. In 1929, the International Committee's special position was recognized by the Diplomatic Conference of that year when drawing up the Convention relative to the treatment of prisoners of war. After entrusting the Committee with the task of proposing "to the Powers concerned" the organization of a "Central Agency of information regarding prisoners of war", Article 79 of the Convention went on to state in its final paragraph that "these provisions shall not be interpreted as restricting the humanitarian work of the International Red Cross Committee". In the same way, after making provision for the Protecting
    Powers' activities on behalf of prisoners of war, the Convention stipulated, in Article 88 , that the provisions in question did "not constitute any obstacle to the humanitarian work which the International Committee of the Red Cross may perform for the protection of prisoners of war with the consent of the belligerents concerned". The use the International Committee made of the freedom of action allowed it by these provisions is well known.
    In the case of civilians, however, the International Committee had no legal basis on which to act when the Second World War broke out in 1939. It had, it is true, been engaged for several years in drawing [p.94] up a Convention for the protection of enemy nationals in the territory of the Parties to the conflict and for the protection of the population of occupied territories, but, as we know, work on the project was interrupted by the opening of hostilities.
    The International Committee's right of initiative nevertheless exists quite apart from any mention made of it in an international Convention. It follows from the Committee's traditions, and also from its Statutes and those of the International Red Cross, which recognize that it has extensive competence in this field. The International Committee accordingly proposed, as has already been said, that the belligerents should, from the outbreak of hostilities, apply the so-called "Tokyo" Draft, which had been adopted by the XVth International Red Cross Conference in 1934 (1). The result of this initiative was modest, but of some value nevertheless, since at all events enemy nationals in the territory of the belligerent Powers and interned by them, were allowed the benefit of the rules relating to prisoners of war.
    Apart from the work described above, the International Committee did a considerable amount of relief work in behalf of the civilian population; in some instances this work was carried out on a vast scale. In conjunction with the League of Red Cross Societies, it founded the Joint Relief Commission of the International Red Cross for the purpose of assisting the civilian population of countries suffering as a result of the war (2). The International Committee also undertook relief schemes in behalf of the civilian population of occupied territories on its own account, sometimes on a considerable scale. It will suffice to mention the case of the Channel Islands, that of the German "pockets" in France, that of Holland, etc. Reference may also be made to the relief work on behalf of the civilian population, that was carried out in Greece in co-operation with the Swedish Government; it assumed huge proportions (3). Work was also done in other spheres: we may mention, in particular, the relief consignments sent by the International Committee
    to help persons detained in concentration camps in Germany and also the consignments for Jews in various countries under German occupation. Unfortunately these consignments were far from meeting the great need which existed. For information on all these points reference should be made to the [p.95] account given by the International Committee of the Red Cross in its report (4). It will be seen that in all directions, the International Committee, making use of its right of initiative, did everything in its power to help civilians.
    When the present Convention was drawn up in 1949 its provisions were very largely drafted in the light of the work done by the International Committee. Many of the clauses were based on the Committee's experience, and its main activities in behalf of civilians are the subject of express provision in the new Convention. The authors of the Convention felt it necessary, however, to allow for the possibility of the International Committee again acting in the future in a wider sphere in its work in behalf of civilians. That is the meaning of Article 10.
    At the Diplomatic Conference little time was spent on discussing this provision (5). Nobody disputed the principle involved. On the contrary, the draft was extended to include a reference to "any other impartial humanitarian organization" after the words "the International Committee of the Red Cross". This was for fear that a reference to the International Committee alone might close the door to other organizations capable of contributing to the protection of war victims. There was ample justification for such fears, and the Article, with the above addition, was accordingly adopted in plenary session without discussion or opposition.

    COMMENTS ON THE ARTICLE

    In the 1929 Prisoners of War Convention the right of initiative of the International Committee was only mentioned in connection with certain specific activities -- the setting up of the Central Prisoners of War Agency and arranging for the visiting of camps. Its insertion among the general Articles of all four Conventions of 1949, and the wording adopted, give it much greater scope. They mean that none of the provisions of these Conventions exclude humanitarian activities on the part of the International Committee of the Red Cross or another similar organization. That is of importance in the case of the present Convention, which mentions the International Committee of the Red [p.96] Cross seventeen times in all (6). The Central Prisoners of War Agency, which under Article 140 can be set up on the proposal of the International Committee, is also mentioned on several occasions.
    In theory, all humanitarian activities are covered, not only those for which express provision is made. They are covered subject to certain conditions with regard to the character of the organization undertaking them, the nature and objects of the activities concerned and, lastly, the will of the Parties to the conflict.
    In order that the International Committee's position should be quite clear, it should be noted in conclusion that the provisions which refer to the Committee do not lay any legal obligation on it; they merely authorize it to act if it wishes to do so, or request it to intervene; it is nevertheless undoubtedly under a moral obligation to intervene whenever its help is needed.

    1. ' Approved organizations '

    The humanitarian activities authorized are to be undertaken by the International Committee of the Red Cross or by any other impartial humanitarian organization. The International Committee is mentioned in two capacities -- first on its own account, because of its special character and its earlier activities, which it is asked to renew should occasion arise, and which it is desired to facilitate; and secondly, as an example of what is meant by "impartial humanitarian organization". It must be remembered that the International Committee of the Red Cross is today, as it was when it was founded, simply a private association with its headquarters at Geneva, composed solely of Swiss citizens recruited by co-option. It is therefore neutral by definition and is independent of any government and of any political party. Being the founder body of the Red Cross and the promoter of all the Geneva Conventions since 1864, it is by tradition and organization better qualified than any other body to help effectively in safeguarding the principles expressed in the
    Conventions.
    The organization must be ' humanitarian '; in other words it must be concerned with the condition of man, considered solely as a human being, regardless of his value as a military, political, professional or other unit. It must also be ' impartial '. Article 10 does not require it to be international. As the United States delegate at the Conference remarked, it would have been regrettable if welfare organizations of a non-international character had been prevented from carrying [p.97] out their activities in time of war (7). The International Committee of the Red Cross is not itself international so far as its membership is concerned. It is international in its activities, however, as its name shows. Furthermore, the Convention does not require the organization to be neutral.

    2. ' Activities authorized '

    It is not enough for the organization which offers its services to be humanitarian and impartial. Its activities, too, are subject to certain conditions. They must be purely humanitarian in character; that is to say they must be concerned with human beings as such, and must not be affected by any political or military consideration. The whole Convention is designed to make it easier to put into practice the general principle contained in Article 27 . Consequently, any subsidiary activity which helps to achieve this, and only this, is not only authorized but desirable under Article 10. Such activities may take the form of:

    1. representations, interventions, suggestions and practical measures
    affecting the protection accorded under the Convention; 2. the sending and distribution of relief (foodstuffs, clothing and
    medicaments), in short, anything which can contribute to the humane
    treatment provided for under Article 27 ; 3. the sending of medical and other staff.

    It follows from the wording that these activities must also be impartial. It should be noted in this connection that impartiality does not necessarily mean mathematical equality. The degree and urgency of the need should, for example, be taken into consideration when distributing relief.
    During the Second World War the action of the International Committee of the Red Cross itself, although impartial, was in actual fact often unequal. In certain countries it could, for instance, visit a particular category of civilians, while in others it was forbidden access to the self-same category. Its impartiality lay in the fact that it had offered its services equally to all the belligerent Powers. Its action in the relief field was also at times unequal. The reason in this case was that the International Committee was not the donor, but merely an intermediary. Its services as an intermediary were, however, offered to everyone equally. Moreover, whenever it noticed that a particular class of victims was especially short of its essential requirements, it tried, often with success, to obtain the necessary relief.
    [p.98] Humanitarian activities are not necessarily concerned directly with the provision of protection or relief. They may be of any kind and carried out in any manner, even indirect, compatible with the sovereignty and security of the State in question.
    All these humanitarian activities are subject to one final condition -- the consent of the Parties to the conflict. This condition is obviously harsh but it might almost be said to be self-evident. A belligerent Power can obviously not be obliged to tolerate in its territory activities of any kind by any foreign organization. That would be out of the question. The Powers do not have to give a reason for their refusals. The decision is entirely theirs, but since they are pledged to apply the Convention, they alone must bear the responsibility if they refuse help in carrying out their engagements.
    The "Parties concerned" must be taken to mean those upon which the possibility of carrying out the action contemplated depends. For example, when consignments of relief are forwarded, it is necessary to obtain the consent not only of the State to which they are being sent, but also of the State from which they come, of the countries through which they pass in transit and, if they have to pass through a blockade, of the Powers which control the blockade.

    3. ' Scope of the Article '

    There are one hundred and fifty-nine Articles in the Convention which we are studying and it might have been thought that they would provide a solution, based on the experience gained in previous conflicts, for any situation which could arise. No one, however, can foresee what a future war will be like, under what conditions it will be waged and to what needs it will give rise. It is therefore right to leave a door open for any initiative or activity, however unforeseeable today, which may be of real assistance in protecting civilians. It must be pointed out that although the 1949 Civilians Convention contains detailed rules concerning the treatment of civilians who are in enemy hands, it deals only in a very summary fashion with the lot of the population as a whole in the territories of the Parties to the conflict. The only provision it makes for the protection of the civilian population from the actual dangers of war is the possible establishment of hospital and safety zones. Since 1950 the International Committee has been devoting particular attention
    to the question of what can be done to prevent the civilian population suffering the horror of bombardments and the use of weapons which cause completely indiscriminate destruction over a wide area.
    [p.99] Article 10 is also of considerable value from the legal point of view. Faced with the barbarous realities of war, the law remains realistic and humane. It keeps in mind the object of the Convention -- namely human life, and peace between man and man -- conscious that it is only a means (ridiculously weak compared with the forces of war) of attaining this object. Therefore, when everything had been settled by legal means -- ordinary and extraordinary -- by assigning rights and duties, by obligations laid upon the belligerents and by the mission of the Protecting powers, a corner was still found for something which no legal text can prescribe, but which is nevertheless one of the most effective means of combating war -- namely charity, or in other words the spirit of peace.
    That is where Article 10 is, finally, of immense symbolic value. Through it the Conventions -- all four Geneva Conventions of 1949 -- are linked to their true origin: Henry Dunant's action on the field of battle. Article 10 is more than a tribute to Henry Dunant. It is an invitation to all men of good will to continue his work.


    Notes: (1) [(1) p.94] See above, p. 4;

    (2) [(2) p.94] See ' Report of the Joint Relief Commission of
    the International Red Cross, 1941-1946, ' Geneva 1948. The
    value of the relief consignments despatched by the
    Commission between 1941 and 1946 amounted to over 314
    million Swiss francs, representing over 165.000 tons of
    goods;

    (3) [(3) p.94] See ' Rapport de la Commission de gestion pour
    les secours en Grèce sous les auspices du Comité
    international de la Croix-Rouge, ' Athens 1949;

    (4) [(1) p.95] ' Report of the International Committee of the
    Red Cross on its activities during the Second World War '
    (September 1939-June 30, 1947), in three volumes Geneva
    1948. Vol. I -- General Activities, 736 pages; Vol. II --
    The Central Agency for Prisoners of War, 320 pages; Vol.
    III -- Relief Activities, 539 pages;

    (5) [(2) p.95] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-B, pp. 20-21, 29, 60, 111 and
    346;

    (6) [(1) p.96] Articles 3, 11, 12, 14, 30, 59, 61, 76, 96,
    102, 104, 108, 109, 111, 140, 142 and 143;

    (7) [(1) p.97] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-B, p. 60;