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Commentary - Personnel participating in relief actions
    [p.831] Article 71 -- Personnel participating in relief actions


    General remarks

    2870 This article did not appear in the draft, and the Conventions do not contain special provisions for the personnel engaged in relief actions.

    [p.832] 2871 Apart from personnel involved in actions under the responsibility of the ICRC, who consequently enjoy the protection of the red cross emblem, (1) personnel participating in relief actions are only protected, outside the régime of the Protocol, by general rules applicable to civilians of States which are not Parties to the conflict. Such persons certainly enjoy the general protection of populations against certain consequences of war, (2) and, as civilians, may not be attacked, but not all of them are covered by the fourth Convention which excluded certain categories from its
    field of application. (3) They do not have a ' right ' to carry out a particular task, and the reason for granting them a status in international humanitarian law is to allow them to ' act ' effectively for the benefit of a civilian population lacking essential supplies.

    2872 Personnel participating in relief actions was first mentioned in an amendment to draft Article 62 (present Article 70 -- ' Relief actions '), aimed at including it amongst the elements for which the Parties concerned must authorize transit, (4) together with relief provisions and equipment.

    2873 A proposal was then made to mention it as well in the paragraph devoted to the obligations of the receiving Party. (5)

    2874 Finally, the question was taken up again by a Working Group of Committee II, which proposed the introduction of a new article especially devoted to the personnel participating in relief actions. This article was adopted with some modifications by Committee II, and then by the Conference.

    2875 The question of training such personnel already in peacetime is covered by Article 6 ' (Qualified persons). '

    Paragraph 1 -- Aims and conditions

    2876 The participation of personnel in a relief action, as laid down in this Article 71 , covers both actions destined for occupied territories, (6) and actions for other territories controlled by any of the Parties to the conflict. (7)

    2877 The participation of such personnel is not automatic. One could envisage relief consignments simply delivered to the receiving Party at an airport, or a port, or in the case of transportation by land, to the border, or simply postal consignments. However, without any personnel involved in the action, the supervision which the Protecting Power or its substitute must exercise is in danger of becoming more difficult, and of requiring a large personnel if it is to be effective.

    [p.833] 2878 While relief personnel are involved in the action only ' where necessary, ' such necessity can therefore be not purely technical, but must respond to the needs of an action conducted ' without any adverse distinction. '

    2879 The qualities required in this personnel are technical -- experts in transport, in relief administration, in organization -- to allow the relief to be forwarded to its destination in good condition, and to be distributed efficiently. However, there are also personal qualities: in addition to understanding of human feelings required in everyone engaged in humanitarian activity, relief personnel must be capable, if this should be necessary, of cooperating closely with the Protecting Power or the organization responsible for the supervision of the relief distribution.

    2880 Participation of medical or paramedical personnel is not explicitly mentioned, but it is not excluded, and it should certainly be viewed in a favourable light. Often experts in hygiene and nutrition, nurses, or even doctors, can provide useful -- if not essential -- additional aid depending on the relief facilities and personnel locally available. Nevertheless, the status of such personnel raises a special problem which will be examined below. (8)

    2881 Finally, participation of relief personnel "shall be subject to the approval of the Party in whose territory they will carry out their duties". This should be interpreted to mean the Party which exercises control over this territory, e.g., in the case of occupied territories, the Occupying Power, and not the Party whose territory is occupied.

    2882 Thus the principle of the participation of personnel is subject to the approval of these Parties, like the principle of the action itself. In fact, there are not two decisions but an overall agreement, and it is understood that participation of personnel is in itself an important element of such an agreement. Moreover, the presence of such personnel may also be considered indispensable by the Protecting Power or the substitute organization responsible for the supervision of the aid distribution, and its refusal could consequently also call into question the agreement of the donors or of the Party authorizing the action.

    2883 The expression ' relief personnel ' is quite general, but it should not exclude the possibility for the receiving Party to refuse not the principle of participation of personnel, but participation by a particular person, especially as the right to terminate the mission of ' any ' member of the relief personnel is explicitly laid down in paragraph 4. (9)

    2884 It would be reasonable in this case to comply with such a demand, provided that it remains exceptional and is justified, and it does not constitute a subterfuge to obstruct the action itself. In this respect it should be recalled that the approval for action required from the receiving Party does not give this Party the discretionary power to refuse a relief action. (10)

    [p.834] Paragraph 2 -- Protection

    2885 The concepts of ' respect ' and ' protection ' have already been examined. (11) The obligation to respect and protect relief personnel applies to all the Parties to the conflict, which should, in particular, inform and instruct their armed forces not to attack such personnel.

    2886 Nevertheless, movements which relief personnel may make into danger zones raise a special problem, since they do not have the right -- apart from personnel participating in Red Cross international relief action -- to display the protective red cross emblem.

    2887 Two possible situations could be envisaged if the relief actions have to take place in danger zones, particularly in zones where control is disputed by the Parties to the conflict: in the first case, the action may have the benefit of the distinctive emblem of the red cross. In the context of an armed conflict, this will, in principle, be an action placed under the responsibility of the ICRC. This problem has already been examined. (12)

    2888 In the second case the convoy does not have the benefit of the protective emblem. In this case it is up to the instigators of the action, the Protecting Power (or its substitute) responsible for its supervision, and the receiving Party to the conflict to decide whether or not they wish to attach an armed escort to the convoy; such escort could certainly be envisaged in this case.

    2889 Medical personnel participating in relief actions, except those taking place under the auspices of the Red Cross, are not authorized to display the emblem, unless they are placed ' under the control ' of the receiving Party to the conflict. (13) If this condition is met, they may enjoy the status of medical personnel. But there is a risk that the instigators of the action or the Protecting Power (or its substitute) responsible for its supervision will find such a condition unacceptable. Nevertheless, it is quite clear that such medical personnel, even though they are not entitled to the protection of the emblem, are entitled to the respect and protection due to all personnel taking part in relief actions.

    2890 Finally, if personnel participating in relief actions were to fall into the power of the enemy of the receiving Party, they should obviously still be entitled to respect and protection. There is no special provision for their repatriation, but like any civilian of a State not Party to the conflict, they should not be detained, but should be put in a position to return to their own country as soon as possible.

    2891 Meanwhile, the personnel should be well treated and receive adequate supplies of food, shelter, and if necessary, care. (14)

    [p.835] Paragraph 3 -- Obligations of the receiving Party

    2892 This paragraph does not require a great deal of commentary. The general duty to assist should not be confused with the duty of protection of paragraph 2, which was examined above. It is up to the receiving Party to do its utmost to facilitate the task of relief personnel, particularly by simplifying administrative formalities as much as possible, by allowing the personnel to find accomodation if there is any problem with this, and by informing the population and the authorities concerned.

    2893 Some limitations on the activities and movements of relief personnel are not excluded, but only "in case of imperative military necessity". (15)

    2894 For example, the limitation of activities could consist of prohibiting distribution to the population when it is known that they are passing foodstuffs onto the armed forces of the adverse Party. Nonetheless, such behaviour could not be permitted either by the Protecting Power or the organization in charge of ensuring supervision, which would also have the duty to intervene.

    2895 In reality such limitations should be discussed and agreed upon by the receiving Party and the Protecting Power or the organization in charge of ensuring supervision of the action, before any unilateral decision is taken.

    2896 A limitation on movements of personnel is obviously sometimes justified and it must be possible to make quick decisions to take into account the development of hostilities. Nevertheless, it should not be prolonged beyond what is necessary: it is explicitly stated that the limitation is ' temporary ' and for any prolongation sound reasons must be given.

    Paragraph 4 -- Obligations of personnel

    2897 Though Article 71 as a whole is intended to grant a special status to personnel participating in relief actions, paragraph 4 prescribes the limits of these rights and the obligations involved.

    2898 The obligation that "under no circumstances may relief personnel exceed the terms of their mission" underlines the necessity for such personnel to allow only legitimate beneficiaries to benefit from relief consignments. This is quite explicitly the aim of their mission. In particular they should not pass any foodstuffs or any other supplies to combatants.

    2899 On the other hand, relief personnel should not be reproached if such supplies are extorted by combatants. In such a case it would be the action itself or the way in which it is carried out, which would be put into question.

    2900 Medical care, given by medical personnel participating in a relief action, to wounded combatants they happen to encounter, regardless of the Party to which they belong, should not give rise to reproach either, even if such care does not [p.836] exactly fall within the context of the mission. In fact medical duties enjoy a general protection. (16)

    2901 On the other hand, the duty of discretion for this personnel should be emphasized, particularly if their mission gives them access to information of a military nature. The transmission of such information would certainly exceed the terms of their mission.

    2902 The security requirements of the Party in whose territory the action is taking place are mentioned in this context. They also imply, on the part of the personnel participating in relief actions, that they must comply with the technical requirements which the authorities could impose (route, schedule, curfews etc.). Naturally these requirements should not be aimed at obstructing the relief action, and the activity of the personnel, as we saw above, should not be limited except in the case of imperative military necessity. However, once these limits have been negotiated and determined, it is no longer up to each member of the personnel participating in the action to make his own judgment about them. He must comply with them.

    2903 The sanction which may be imposed as a result of actions by a member of personnel which exceed the terms of the mission, is clear: his mission may be terminated. In concrete terms, this means that the member of the personnel concerned may be requested to leave the territory of the receiving Party immediately.

    2904 This individual application of the measure is a good thing, in the sense that individual behaviour which is in conflict with the Protocol does not necessarily put into question the entire action.

    2905 Nevertheless, to avoid abuse, such a decision should in principle be taken after the persons responsible for the action have been consulted, and should be duly justified. It is a matter of trust which must survive between the receiving Party and those responsible for the action.

    2906 The possibility of prosecuting personnel participating in a relief action by the receiving Party is not explicitly excluded. However, it should be avoided as much as possible, in view of the disastrous consequences this could have on the action as a whole.

    2907 Moreover, it is desirable to provide in the framework of the agreement concerning such action that personnel participating in relief action should enjoy immunity before the courts.

    ' Y. S. '


    NOTES

    (1) [(1) p.832] On this subject cf. infra, p. 834;

    (2) [(2) p.832] Cf. Fourth Convention, Part II;

    (3) [(3) p.832] Cf. Fourth Convention, Art. 4, para. 2. The personnel participating in relief actions in territories other than occupied territories are in fact not covered by the Fourth Convention, save the exceptional case where the State of which the relief personnel are nationals does not have normal diplomatic representation in the receiving State;

    (4) [(4) p.832] Cf. O.R. III, p. 280, CDDH/II/398 and Add.1, para. 2;

    (5) [(5) p.832] Cf. O.R. XII, p. 319, CDDH/II/SR.84, para. 46;

    (6) [(6) p.832] Cf. Art. 69, para. 2;

    (7) [(7) p.832] Cf. Art. 70, para. 1;

    (8) [(8) p.833] Commentary para. 2, infra, p. 834;

    (9) [(9) p.833] On this subject, cf. commentary para. 4, infra, pp. 835-836;

    (10) [(10) p.833] Cf. commentary Art. 70, para. 1, supra, p. 819;

    (11) [(11) p.834] Cf. commentary Art. 10, supra, p. 146;

    (12) [(12) p.834] Cf. commentary Art. 70, para. 4, supra, pp. 828-829;

    (13) [(13) p.834] Cf. Art. 27, para. 1, First Convention;

    (14) [(14) p.834] In this respect the example should be followed of Article 32 of the First Convention, which deals with the return of medical personnel of States not Parties to the conflict, who have fallen into the hands of the enemy of the Party for whose benefit they were carrying out their mission;

    (15) [(15) p.835] On the meaning to be given to this expression, cf. commentary Art. 54, para. 5, supra, pp. 658-659;

    (16) [(16) p.836] Cf. commentary Art. 16, para. 1, supra, pp. 199-202;