ICRC databases on international humanitarian law
  • Print page
Commentary - Activities of the Red Cross and other humanitarian organizations
    [p.935] Article 81 -- Activities of the Red Cross and other humanitarian organizations


    [p.936] General remarks

    3299 The first reference to the different Red Cross organizations in humanitarian treaties dates back to 1929. At that time, when a Diplomatic Conference in Geneva drew up the Convention Relative to the Treatment of Prisoners of War, it primarily codified customary practices which had been established during the First World War. As far as the ICRC is concerned, there was recognition of its right to carry out its humanitarian work for the protection of prisoners of war with the consent of the belligerents concerned (Article 88 ) as well as the opportunity to propose to the Powers concerned the establishment of a Central Agency of Information regarding prisoners of war (Article 79 ).

    3300 In the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the field, as revised in 1929, Article 10 is entirely devoted to the protection of personnel of voluntary aid societies duly recognized and authorized by their governments. That article concerns primarily the National Red Cross and Red Crescent Societies which are, ' par excellence, ' voluntary aid societies and recognized by their governments. However, it is concerned with their activities only in time of armed conflict. Therefore, in the final Act the Diplomatic Conference expressed the following wish:

    "The Conference, recognising the importance of the contribution demanded of National Red Cross Societies and the Voluntary Aid Societies in promoting fellowship between nations, considers it highly desirable that, as far as it may be consistent with municipal law, they should be granted all possible facilities and exemptions for their work in time of peace, particularly as regards accommodation, free passage of personnel and property, and their relief activities."

    3301 After the Second World War the Diplomatic Conference of 1949 confirmed the prerogatives entrusted to the ICRC and extended them to the four Conventions. In addition, the ICRC was granted right of access to prisoners of war and protected civilians. Finally, the Conventions mention the ICRC in a series of articles related to various tasks.

    3302 The National Societies feature prominently in the first Convention (Articles 26 and 44 ) and the Second Convention (Article 24 ). In the Third Convention, Article 125 explicitly deals with relief societies assisting prisoners of war: it is clear that these are primarily National Societies. There is a similar article in the fourth Convention (Article 142 ).

    [p.937] 3303 The fourth Convention explicitly mentions National Societies. First, in accordance with Article 30 , protected persons should have every facility for making application to the National Society of the country where they may be. Finally and above all, Article 63 provides that:

    "Subject to temporary and exceptional measures imposed for urgent reasons of security by the Occupying Power:
    a) Recognized National [...] Societies shall be able to pursue their activities in accordance with Red Cross Principles, as defined by the International Red Cross Conferences [...];
    b) the Occupying Power may not require any changes in the personnel or structure of these societies, which would prejudice the aforesaid activities."

    3304 Under this provision, National Societies gained some degree of international recognition. It was of great importance that they were protected against arbitrary measures an Occupying Power might take, in view of what happened in the Second World War, and since the Board of Governors of the League of Red Cross Societies met in Oxford in 1946, members of the Red Cross Movement had been concerned with these problems. The Constitution of the League now contains a provision (Article 5, paragraph 2) according to which the Assembly, or in an emergency, the Council, may take all measures necessary if an internal or external authority were to interfere with the conduct of activities carried out by a member Society in accordance with the fundamental principles of the Red Cross or if actions of that authority were prejudicial to the Society. The ICRC, either alone or together with the League, must also act to protect and re-establish the integrity of the National Societies.

    3305 From the beginning of the preparatory studies for the Additional Protocols several National Societies wished to see a new provision to confirm the position of the National Societies and of the League. (1) As several governments had expressed their support for this view, the ICRC considered that it would be best for them to present their proposals to the Diplomatic Conference. Thus the draft Additional Protocol submitted by the ICRC did not contain a special provision on Red Cross organizations.

    3306 The XXIInd International Conference of the Red Cross (Teheran, 1973) examined the drafts of the Additional Protocols to the Conventions and adopted Resolution XV on this special point, which states, in particular:

    "[...] having examined the two draft Additional Protocols and taken note of the comments made during the debates, requests the Diplomatic Conference to be held in Geneva in 1974, to introduce the appropriate provisions to strengthen the role and facilitate the humanitarian activities of National Societies and of their federation, for example by adding
    [p.938]
    1. a general provision inviting the parties to a conflict to grant National Societies all the means and help required to enable them to carry out all their humanitarian activities on behalf of the victims of armed conflicts,
    2. special provisions covering the personnel, services and programmes National Societies are in a position to provide in order to make sure that the objectives of the Geneva Conventions and of the Protocols are attained."

    3307 As we know, the Diplomatic Conference opened three months later, in February 1974. Many government delegations included one or more members of the National Society of the country concerned. Very soon these "Red Cross men" met with representatives of the ICRC and the League to examine the points which more particularly concerned the Red Cross. There were lengthy discussions on this article. From the beginning it was clear that such a provision should cover the whole of the Red Cross; and the ICRC, although for its part only concerned with confirming the existing rules, supported these views. Negotiations were conducted with a series of delegations to find out what governments might find acceptable.

    3308 These discussions continued during the second session of the Conference in 1975 and concluded with the presentation of a text for a new article which, with some drafting modifications, became Article 81 . This proposal had 32 co-sponsors from various parts of the world, (2) and thus the article was finally adopted by consensus almost without further discussion by Committee I in 1975, and similarly during a plenary meeting in 1977.

    Paragraph 1

    3309 As we saw, the ICRC considered that the Conventions already provided an adequate and quite precise basis for its main activities: Article 9 /9 /9 /10 common to the Conventions, which recognizes the ICRC's right of initiative; Articles 126 of the Third Convention and 143 of the fourth Convention, which grant it access to prisoners of war and civilians deprived of their liberty; similarly the possibility of organizing a Central Information Agency in accordance with Articles 123 of the Third Convention and 140 of the fourth Convention and the possibility for persons protected under the fourth Convention to make application to the ICRC in accordance with Article 30 of that Convention; finally, the recognition of the special function of the ICRC with regard to providing relief to victims of war contained in Articles 125 (Third Convention) and 142 (Fourth Convention).

    3310 As far as the Protocol is concerned, it mentions some new tasks of the ICRC and grants it the necessary facilities for carrying them out, such as, for example, in Article 5 ' (Appointment of Protecting Powers and of their substitute), ' paragraphs 3 and 4.

    3311 However, the ICRC does not underestimate the importance of the general principle expressed in the first sentence of this paragraph and gratefully welcomed it. The second sentence reiterates the formula contained in Article 9 /9 /9 /10 [p.939] common to the four Conventions, using slightly different words. Article VI, paragraphs 5 and 6, of the Statutes of the International Red Cross provide, with regard to the ICRC:

    "5. As a neutral institution whose humanitarian work is carried out particularly in time of war, civil war, or internal strife, it endeavours at all times to ensure the protection of and assistance to military and civilian victims of such conflicts and of their direct results. [...]
    6. It takes any humanitarian initiative which comes within its role as a specifically neutral and independent institution and intermediary and considers any question requiring examination by such an institution."

    3312 It should also be noted that the first paragraph of the article under consideration here is addressed to the Parties to the conflict, (3) while the aforementioned proposal made by States used the expression "the High Contracting Parties". The reasons for this change are not given in the Official Records. This in no way alters the fact that the ICRC in some cases has had to request aid or consent from States not involved in the conflict, which are therefore Contracting Parties without being Parties to the conflict; in fact, they have a legal obligation to co-operate in the application of the Protocol, since in subscribing to Article 1 of the Conventions and the Protocol, they undertook to respect them and ensure respect for them in all circumstances. (4)

    3313 The first part of the sentence refers to the tasks of giving "protection and assistance to the victims of conflicts", while the second part of the sentence refers to "any other humanitarian activities in favour of these victims".

    3314 It looks as though the first part of the sentence refers to tasks explicitly laid down in specific provisions of the Conventions and the Protocol, while the second part of the sentence covers what the ICRC might be called upon to undertake in favour of victims of war if it went beyond the text of the Conventions and the Protocol, as laid down in Article 9 /9 /9 /10 common to the Conventions.

    Paragraph 2

    3315 The terminology used here is of some importance. The text mentions Red Cross or Red Crescent "organizations" rather than National Societies. (5) This is to cover Red Cross or Red Crescent organizations acting in favour of victims of a conflict when such organizations, because of very precise conditions regarding recognition, cannot be recognized internationally as National Societies, for example, because they are sponsored by entities other than States. In fact, the first of the conditions of recognition provides that any new Society must be [p.940] constituted in the territory of an independent State and must be the only National Red Cross or Red Crescent Society in that State. (6) Moreover, the ICRC, which is responsible for recognizing such Societies, adopted a line of conduct in this field under which there can be no recognition during an armed conflict if the country concerned is involved in the conflict. (7)

    3316 Having said this, it is clear that in time of armed conflict the assistance of a Red Cross or Red Crescent organization may be very valuable, and this provision to some extent codifies what has happened in recent conflicts, for example, during the war in Algeria where the Algerian Red Crescent organization was established fairly rapidly and rendered important services.

    3317 This provision is primarily addressed to public authorities and organizations dependent upon them; they must grant their national organization all facilities necessary for carrying out their humanitarian activities. This recommendation is by no means superfluous, for governments have in the past imposed restrictive measures on their National Societies either through fear or incomprehension. On the other hand, it is quite clear that a Society must show itself to be honest and act impartially.

    3318 During the ' travaux préparatoires ' some National Societies would have liked to obtain greater protection against their own authorities. However, as it concerns wartime conditions, it was difficult to obtain more from governments. The changes that National Societies wanted were particularly concerned with their role in case of internal conflict. On this subject, we would refer to the commentary on Article 18 of Protocol II ' (Relief societies and relief actions). ' One thing is generally accepted -- and this is of paramount importance -- namely, the protection granted National Societies in case of occupation in Article 63 of the fourth Convention.

    3319 Humanitarian activities of National Societies in favour of victims of conflicts largely rest on the Conventions themselves: Article 26 , first Convention; Article 24 , Second Convention; Article 125 , Third Convention, and Articles 30 and 142 , fourth Convention. As regards prisoners of war and civilian internees, National Societies are, by their very nature, relief societies which may come to their aid, irrespective whether the victims concerned are their own nationals or whether the relief is for enemy prisoners of war and civilian internees. The XVIIth International Conference of the Red Cross (Stockholm, 1948) recommended that National Societies should contribute to relief in favour of prisoners of war and civilian internees of enemy nationality, and that such relief should be afforded on the basis of the most complete impartiality. (8) Once again, this recommendation was based on the generous attitude adopted during the Second World War by the few National Societies which had surmounted the hatred engendered by the conflict and acted in the true spirit of the Red Cross.

    [p.941] 3320 This provision invites National Societies to act in accordance with the fundamental principles of the Red Cross as formulated by the International Conferences. Article 63 of the fourth Convention of 1949 has almost the identical wording. That article refers to the "Red Cross principles, as defined by the International Red Cross Conferences". In fact, in 1949 these principles had not yet been explicitly formulated. One of the conditions for recognition of new Societies, which was already in force in 1949, summarized the principles by referring to "the impartiality, the political, religious and economic independence, the universality of the Red Cross and the equality of the National Red Cross Societies".

    3321 Later the Red Cross Movement considered that it was necessary to define its ideals more precisely, and after careful consideration, the XXth International Conference (Vienna, 1965) proclaimed the fundamental principles on which Red Cross activities are based. (9) It also decided that these should be solemnly read out at the opening of every International Conference, and this rule has been duly observed. (10)

    3322 These principles are termed "fundamental principles" because they embody the Red Cross ideal, and also in order to distinguish them from other principles adopted by various International Conferences on specific points. The League, which in 1975 undertook a revision of its Constitution, included these principles in a preamble. It is clear that the principles must be followed by the Red Cross as a whole, and although they are not mentioned in the first paragraph of Article [p.942] 81 , the ICRC, the traditional guardian of the Movement's principles, has also to observe them.

    3323 When this article, and in particular, paragraphs 2 and 3, was adopted by consensus by Committee I, the Israeli delegate in his explanation of vote referred to the situation of the Red Shield of David Society (Magen David Adom). He indicated that that Society had fulfilled the functions and activities of a National Red Cross Society in Israel for many years, but that for historical and religious reasons, it did not use either the red cross emblem or any other emblem accepted at that time. It could not therefore be officially given recognition by the ICRC or be admitted to the League. The delegate expressed the hope that this situation would be rectified and stated that in the interim the Red Shield of David Society would continue to fulfil the functions and obligations of a National Red Cross Society. (11)

    Paragraph 3

    3324 According to the explanations given by the spokesman for the sponsors of the proposal which became the present article, this paragraph is about facilities to be granted Red Cross and Red Crescent National Societies or organizations of countries which are not Parties to the conflict. This point of view was correct, but the text may also refer to the aid which a National Society of a country at war might desire to give to the victims of the conflict in an allied country; in such a situation the friendly relations between the two allied countries would almost certainly make it unnecessary to invoke the present provision, but a situation could arise where recourse to this article would not be without purpose. The provision is addressed to all contracting Parties, including Parties to the conflict, as they can all be called upon to facilitate the assistance covered by this paragraph.

    3325 National Societies often give their aid directly to the National Society of the country where the victims of a conflict to be aided are. However, there may also be cases where several National Societies wish to join efforts and want to ensure that their assistance really does go to the victims for whom it is intended. In such situations they generally address themselves in time of war to the ICRC, or sometimes to the League, which is specifically mentioned here. According to Article VII of the Statutes of the International Red Cross:

    "2. The object of the League is, within the framework of the present Statutes and subject to the provisions of Article VI, (12) to encourage and facilitate at all times the humanitarian action of the National Societies and to assume the responsibilities incumbent upon it as the federation of those Societies.
    3. For this purpose, the functions of the League are:
    a) to act as the permanent organ of liaison, co-ordination and study between the National Red Cross Societies and to co-operate with them [...]"

    [p.943] 3326 As the Statutes of the International Red Cross could lead to situations where both institutions could claim competence to act, the ICRC and the League concluded an Agreement in 1952 which was revised in 1969, with a view to specifying in some detail the extent of their respective powers in certain areas, particularly with regard to relief actions for the civilian population. Under the heading "Red Cross Action in the Event of a Conflict", Article 2 of the Agreement provides:

    "In countries where there is an international war, civil war, blockade or military occupation, the ICRC, in virtue of the functions of a neutral intermediary devolving on it under the Geneva Conventions and the Statutes of the International Red Cross, shall assume the general direction of the Red Cross international action.
    If, in these countries, as a result of special circumstances or in the event of a natural disaster, the League is, at the request of a National Society, called upon to give assistance to the civilian population of its country, the ways and means of the intervention of the League as well as its co-operation with the ICRC and the National Societies concerned shall be defined from case to case in accordance with Articles 4 and 5 of the present Agreement.
    When the intervention of a neutral intermediary is not or is no longer necessary, the ICRC shall reach agreement with the League with a view to associating it with the relief action or even handing over to it the entire responsibility."

    3327 This general provision is subject to rules on application and implementation; in 1974 it was extended by the adoption of specific rules of interpretation. Red Cross relief actions have assumed considerable proportions, and it is important that National Societies know exactly by what means they can despatch aid and how they can ensure that it arrives at its destination intact.

    3328 At 31 December 1984 there were 135 National Red Cross or Red Crescent Societies. They were all members of the League. (13)

    3329 As regards Red Cross or Red Crescent organizations which, for reasons given above, cannot be immediately recognized so as to become National Societies, the ICRC, like the League, maintains de facto relations with them and facilitates their humanitarian activities when they are in accordance with the fundamental principles. Further, it has frequently happened that organizations set up during a conflict have become duly recognized National Societies once hostilities have ceased.

    [p.944] Paragraph 4

    3330 Once again the provision is addressed both to the Parties to the conflict and to the Contracting Parties, and this is understandable. In fact the Societies concerned here may have a national character and work in favour of their own nationals, or they may work from the outside, i.e., operating from a country not involved in the conflict in favour of nationals of one specific State or they may have a truly international vocation by working without distinction in favour of the victims of war or particular categories of such victims (for example, prisoners of war, civilian internees, invalids, members of a particular religion).

    3331 The text reads: "facilities similar to those mentioned in paragraphs 2 and 3". It should be noted that paragraph 2 refers to "necessary" facilities, while paragraph 3 merely talks about "facilitating" certain things. In fact the facilities concerned consist, most of all, of permits for persons and goods, transport facilities for goods and other equipment, exemptions from import taxes and customs duties etc.

    3332 Paragraph 4 uses the term "as far as possible", which is less strong than that contained in the first three paragraphs, i.e., "all facilities within their power", "the facilities necessary", "in every possible way". It may be concluded that the provision under consideration here is less urgent.

    3333 What is meant by the words "humanitarian organizations referred to in the Conventions and this Protocol"?

    3334 This evidently means in the first place voluntary aid societies which, like National Red Cross or Red Crescent Societies are recognized and authorized by their governments within the meaning of the first Convention to give assistance to medical services. We know that in some countries there are, apart from National Red Cross Societies, other recognized aid societies which come to the assistance of medical services. (14) The position of such societies is dealt with in Articles 26 and 27 of the first Convention and Article 24 of the Second Convention, as well as Articles 9 ' (Field of application) ' and 17 ' (Role of the civilian population and of aid societies) ' of Protocol I.

    3335 The Third and fourth Conventions also contain provisions on the assistance which aid societies may provide for prisoners of war and for protected persons deprived of their liberty (Article 125 , Third Convention; Article 142 , fourth Convention). These articles specify that the societies concerned may be constituted in the territory of the Detaining Power or in another country, or they may have an international character. The number of societies permitted to exercise their activities may be limited by the Detaining Power, provided that effective and sufficient aid is provided for the internees. These provisions are of particular importance in occupied territories.

    3336 Finally, Article 30 of the fourth Convention enables protected persons to apply, not only to the Protecting Powers, the ICRC and the National Society, but in addition to any organization that might assist them.

    3337 Aid societies should exercise their humanitarian activities in accordance with the provisions of the Conventions and of the Protocol. In fact these Conventions [p.945] do not contain very much on the subject, but it may be concluded from the provisions as a whole that the activities of aid societies must be impartial and may not compromise military operations. Societies authorized to exercise relief activities must submit themselves to any security rules imposed upon them, and may not use their privileged situation to collect and transmit political or military information.

    3338 It should be noted that this concerns organizations which are duly authorized by the Parties to the conflict. It may also be a branch of a national or international relief organization located in territory under the control of a Party to the conflict, and the branch should then be authorized to undertake or continue to perform humanitarian activities.

    3339 It is appropriate that in addition to the Red Cross institutions Article 81 mentions the other organizations which can assist victims of war. In fact, in time of conflict, suffering and misery are so great that all goodwill should be encouraged and supported.

    ' C.P./J.P. '


    NOTES

    (1) [(1) p.937] See ' CRCE 1971, Report ', pp. 57-59; ibid., 1972, p. 29; ' CE 1971, Report ', pp. 26 and 31; ibid., 1972, Vol. I, p. 52, para. 1.109;

    (2) [(2) p.938] O.R. III, pp. 311-312, CDDH/I/263 and Add.1;

    (3) [(3) p.939] Like para. 2, while paras. 3 and 4 refer to "the High Contracting Parties and the Parties to the conflict";

    (4) [(4) p.939] It should be noted that other articles of the Protocol concern States not Parties to the conflict;

    (5) [(5) p.939] The Conventions refer to "National Societies" (First Convention, Article 44; Fourth Convention, Articles 30 and 63). There is no longer a Red Lion and Sun Society, as the only country to use this emblem, Iran, renounced its use in 1980;

    (6) [(6) p.940] The various provisions of the Statutes of the International Red Cross quoted below are taken from the ' International Red Cross Handbook ', 12th edition, 1983;

    (7) [(7) p.940] This line of conduct was approved by the XXInd International Conference of the Red Cross, Resolution XII;

    (8) [(8) p.940] XVIIth International Conference of the Red Cross, Resolution XXVI;

    (9) [(9) p.941] The text is given below:
    "' Humanity '
    The Red Cross, born of a desire to bring assistance without discrimination to the wounded on the battlefield endeavours - in its international and national capacity capacity - to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship, co-operation and lasting peace amongst all peoples.
    ' Impartiality '
    It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavours only to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress.
    ' Neutrality '
    In order to continue to enjoy the confidence of all, the Red Cross may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature.
    ' Independence '
    The Red Cross is independent. The National Societies, while auxiliaries in the humanitarian services of their Governments and subject to the laws of their respective countries, must always maintain their autonomy so that they may be able at all times to act in accordance with Red Cross principles.
    ' Voluntary service '
    The Red Cross is a voluntary relief organization not prompted in any manner by desire for gain.
    ' Unity '
    There can be only one Red Cross Society in any one country. It must be open to all. It must carry on its humanitarian work throughout its territory.
    ' Universality '
    The Red Cross is a world-wide institution in which all Societies have equal status and share equal responsibilities and duties in helping each other.";

    (10) [(10) p.941] J. Pictet, ' The Fundamental Principles of the Red Cross, Commentary, ' Geneva, 1979;

    (11) [(11) p.942] O.R. VIII, pp. 403-404, CDDH/I/SR.38, paras. 3-8;

    (12) [(12) p.942] deals with the ICRC, see supra, p. 939;

    (13) [(13) p.943] In accordance with the Statutes of the International Red Cross, recognition of new Societies is pronounced by the ICRC. Their admission into the League is decided upon by the League. However, these two parallel procedures are co-ordinated;

    (14) [(14) p.944] Such as the Order of Malta and the Order of St. John of Jerusalem;