ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 59. Part III : Status and treatment of protected persons #Section III : Occupied territories
    ARTICLE 59. -- RELIEF : COLLECTIVE RELIEF (1)


    GENERAL

    The wording of Articles 59 to 62 is very largely inspired by the large-scale relief action carried out in Greece by the International Committee of the Red Cross in collaboration with the Swedish Government and Swedish Red Cross Society from September 1942 to April 1945 (2).
    The work done by the International Committee of the Red Cross during the Second World War is well known. Unlike prisoners of war and civilian internees, who were covered by the 1929 Prisoners of War [p.320] Convention, the civilian population in occupied countries did not have the benefit of any treaty provision authorizing assistance to them.
    There was thus no legal obligation on belligerents to accept relief consignments intended for the civilian population, nor to grant such consignments free passage through the blockade.
    The attempts made in 1939 were on a modest scale to begin with. Later the work was expanded but it was always confined to certain countries and unfortunately never came near to meeting the needs which existed. These were immense and the obstacles due to the state of war were almost insurmountable. The International Committee therefore felt that one of its most important tasks was to translate the result of these attempts into legal terms. Its experience in this sphere was the deciding factor when drawing up the present rules, which are intended to provide relief workers with the legal basis they lacked (3).

    PARAGRAPH 1. -- GENERAL RULE

    It is ' collective relief ' which is referred to here. The obligation on the Occupying Power to accept such relief is unconditional. In all cases where occupied territory is inadequately supplied the Occupying Power is bound to accept relief supplies destined for the population.
    The Conference added the words "whole or part of the" before the words "population of an occupied territory" on account of experiences during the Second World War. Sanction is thus given not only to schemes of assistance to the population as a whole, but also to those which are intended either for the population in certain localities only, or for particular classes of the population, such as women and children throughout the territory.
    The Convention not only lays down that the Occupying Power must "agree" to relief schemes on behalf of the population, but insists that it must "facilitate" them by all the means at its disposal. The occupation authorities must therefore co-operate wholeheartedly in the rapid and scrupulous execution of these schemes. For that purpose they have many and varied means at their disposal (transport, stores, facilities for distributing and supervising agencies).
    This paragraph should be compared with that granting protected persons who have remained or have been retained in the territory of a Party to the conflict, the right to "receive the individual or collective relief that may be sent to them" (Article 38), and to the similar stipulation in favour of interned protected persons (Article 108 ).

    [p.321] PARAGRAPH 2. -- QUALIFICATION FOR UNDERTAKING A RELIEF
    ACTION -- NATURE OF RELIEF

    Relief schemes may be undertaken either by States or by an impartial humanitarian organization such as the International Committee of the Red Cross. Only those States which are neutral -- in particular the Protecting Power -- are capable of providing the essential guarantees of impartiality.
    The International Committee of the Red Cross or any other "impartial humanitarian organization" has the same right as a State to undertake relief schemes. This form of words, which, as has been seen occurs several times in the Convention (e.g. in Article 3 and 10 ), is general enough to cover any institutions or organizations capable of acting effectively and worthy of trust. The International Committee is mentioned both on account of its own special qualifications and as an example of a humanitarian organization whose impartiality is assured.
    The Convention does not lay down any rule in regard to the donors; the immensity of the needs will make it desirable to accept the co-operation of any person, organization or institution which can lend assistance, provided that such assistance is not used for purposes of political propaganda. During the Second World War innumerable gifts in kind and cash were made available to the Red Cross for this relief work, by States, governments in exile, National Red Cross Societies, charitable institutions, companies and private individuals.
    The paragraph mentions in particular foodstuffs, medical supplies and clothing; consignments need not be restricted to these items but must have the character of relief supplies. Three categories of relief have been mentioned specifically because they are of vital importance and the Occupying Power would be justified in refusing to accept any consignments not urgently needed to feed the population.

    PARAGRAPH 3. -- FREE PASSAGE

    This paragraph, which reproduces word for word that in the Stockholm Draft, is the keystone of the whole system. Its importance will be realized if a moment's thought is given to the way in which consignments were interfered with during the Second World War by measures taken by certain belligerents with a view to striking at the economic power of the enemy. The economic and financial blockade of the European continent which was inaugurated on the declaration of war, the counter-blockade and the gradual extension of the meaning of "war contraband" until it covered almost anything, prevented [p.322] many relief schemes from being carried out. Other schemes could only be started after long delay and protracted and difficult negotiations with the authorities in charge of the blockade. The strictness of the regulations left no opening for any humanitarian consideration and almost any merchandise on its way to territory under enemy control was liable to be confiscated.
    The principle of free passage, as set forth in this clause, means that relief consignments for the population of an occupied territory must be allowed to pass through the blockade; they cannot under any circumstances be declared war contraband or be seized as such by those enforcing the blockade.
    The obligation to authorize the free passage of relief consignments is accompanied by the obligation to guarantee their protection. It will not be enough merely to lift the blockade and refrain from attacking or confiscating the goods. More than that will be required: all the States concerned must respect the consignments and protect them when they are exposed to danger through military operations.

    PARAGRAPH 4. -- VERIFICATION AND SUPERVISION

    The institution of measures for verifying and regulating the consignments follows logically from the foregoing provisions. Since the free passage of relief consignments represents an important exception to the measures enforcing the blockade, it is only right that the blockade authorities should have an opportunity of assuring themselves that the facilities granted are used only for strictly humanitarian purposes.
    The State granting free passage to consignments can check them in order to satisfy itself that they do in fact consist of relief supplies and do not contain weapons, munitions, military equipment or other articles or supplies used for military purposes.
    Their passage is regulated according to prescribed times and routes in such a way as to avoid hampering military operations and to conform to the maximum extent with security requirements. The practical arrangements for their transit will be the subject of special agreements between the Powers concerned. The conclusion of agreements of this kind is not expressly stipulated in the Article, but follows from Article 7 of the Convention, which invites States to "conclude special agreements for all matters concerning which they may deem it suitable to make separate provision".
    These safeguards, which were prescribed in the interests of the Powers granting free passage, must in no case be misused in order to make the rule itself inoperative or unduly delay the forwarding of relief.
    [p.323] The Power granting free passage will also have the right to be reasonably satisfied through the Protecting Power that the consignments in question are to be used for the relief of the needy population and not for the benefit of the Occupying Power. Belligerents will obviously be unwilling to grant the goods free passage -- and the donors unwilling to make their contribution -- unless they are certain that the relief supplies are distributed in the way arranged, and only to those persons for whom they were intended. That is a sine qua non of any relief action.


    Notes: (1) [(1) p.319] For the development of Article 59, see ' Final
    Record, ' Vol. I, pp. 121-122; Vol. II-A, pp. 666-668,
    748, 831;

    (2) [(2) p.319] See ' Rapport final de la Commission de
    gestion pour les secours en Grèce sous les auspices du
    Comité internationale de la Croix-Rouge, ' Athens, 1949;

    (3) [(1) p.320] Detailed information on this subject will be
    found in the ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. III, Part IV, pp. 359-533;