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Commentary - Relief societies and relief actions
    [p.1475] Article 18 -- Relief societies and relief actions

    [p.1476] Historical background and general remarks

    4869 Article 18 is aimed at permitting and facilitating humanitarian activities in non-international armed conflicts for the purpose of assisting victims wherever they are and assuring them the protection to which they are entitled. Common Article 3 does not mention relief actions, and this gap has often been apparent in practice: for this reason the ICRC and the Red Cross Movement as a whole have wished to remedy it for a long time. (1) In 1957 the XIXth International Conference of the Red Cross had already adopted a resolution aimed at supplementing common Article 3 in the field of medical assistance. (2)

    4870 In 1969 the XXIst International Conference of the Red Cross adopted a resolution entitled "Declaration of Principles for International Humanitarian Relief the Civilian Populations in Disaster Situations". (3) No distinction was made between international and non-international armed conflicts, and States were

    "requested to exercise their sovereign and other legal rights so as to facilitate the transit, admission and distribution of relief supplies provided by impartial international humanitarian organizations for the benefit of civilian populations in disaster areas when disaster situations imperil the life and welfare of such populations". (4)

    Subsequently the United Nations General Assembly indicated that this statement was also applicable in situations of armed conflict. (5) Although the suffering and the needs of civilian populations are much the same, irrespective of the type of conflict, the legal framework for organizing relief actions is much more difficult to set up in case of internal armed conflict. During the Diplomatic Conference, States in many cases showed themselves to be more concerned with preserving their national sovereignty than with undertaking to facilitate relief actions in all circumstances. This concern resulted in the adoption of a single provision with regard to assistance and relief: Article 18, which merely sets out the fundamental principles on which relief actions are based, without elaborating in any detail how they are to be implemented. The article lays down the conditions under which [p.1477] victims of conflicts may be assisted and protected while giving States every guarantee of non-intervention; it consists of two paragraphs which each have a separate scope and purpose though they complement each other. Paragraph 1 deals with humanitarian assistance within the frontiers of the State in whose territory the armed conflict is taking place, while paragraph 2 provides for the possibility of organizing international relief actions there. (6)

    Paragraph 1 -- Activities of relief societies

    4871 The whole of this provision is based on the principle that States are primarily responsible for organizing relief. Relief societies such as the Red Cross and Red Crescent organizations (7) are called upon to play an auxiliary role by assisting the authorities in their task.

    4872 The term "relief society" should be understood in its traditional broad sense. (8) The Red Cross Movement, while playing a role of prime importance, does not have a monopoly on humanitarian activities, and there are other organizations capable of providing effective assistance. (9)

    4873 As regards the activities of the Red Cross, it has proved particularly important to ensure the continuity of activities during a conflict so that assistance may be available to victims wherever they are. Article 63 of the Fourth Convention already met this concern in occupied territories. (10) In a non-international armed conflict the central organization may be paralysed as a result of hostilities and local sections must be able to act independently when necessary. It was for this reason that the term "Red Cross organizations" was chosen, as it covers not only National Society in a narrow sense, but also its divisions, which may be located in part of the territory under the control of the adverse party. The same term also covers the case of a "Red Cross Society" set up during the hostilities which, while not recognized as such, nevertheless acts in accordance with the fundamental principles of the Red Cross as laid down by the International Conferences of the Red Cross. (11)

    [p.1478] ' Role of the civilian population '

    4874 This paragraph provides in fine for the role which may be played by the civilian population by collecting and caring for the wounded, sick and shipwrecked. (12) This idea, which is new in the regulation of non-international armed conflict, actually follows from the original tenets of humanitarian law; the original Convention of 1864 already provided that "inhabitants of the country who bring help to the wounded shall be respected and shall remain free". (13)

    4875 Article 18, paragraph 2 , of the First Convention of 1949, provides that:

    "The military authorities shall permit the inhabitants and relief societies, even in invaded or occupied areas, spontaneously to collect and care for wounded or sick of whatever nationality."

    The phrase "collect and care for" was retained in Protocol II, and has kept the same meaning. (14)

    4876 However, this article does not go as far as the Conventions, as it merely authorizes the civilian population to offer its services on its own initiative, and allows the authorities the possibility of declining such an offer. As drafted, the same restriction applies to the first sentence as regards activities of relief societies. This was a last minute reticence, as the draft put forward by the Committees of the Conference provided that the civilian population and relief societies "shall be permitted [...] to care for". (15) However, this wording should have no detrimental effect if the parties to the conflict fulfil their obligations. In fact, all possible measures must be taken to search, collect and care for the wounded, sick and shipwrecked; (16) it is clear therefore that the authorities cannot arbitrarily refuse offers of assistance from relief societies and the civilian population in the face of urgent needs. It is also clear -- though perhaps a reminder is in order -- that the civilian population, whether or not directly participating in helping victims, must in all circumstances respect the wounded, sick and shipwrecked of either party. (17)

    Paragraph 2 -- International relief actions

    4877 This paragraph lays down the principle that international relief actions should be undertaken in cases where "the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival".

    [p.1479] 4878 Such external aid is complementary; it is only provided when the responsible authorities can no longer meet the basic necessities of the civilian population whose survival is in jeopardy.

    4879 What is meant in particular is relief actions which may be undertaken by the ICRC or any other impartial humanitarian organization.

    4880 The beneficiaries of such actions are civilians. The civilian population means all persons who do not or no longer participate in hostilities, including those deprived of their liberty for having committed an act related to the conflict. For that matter, Protocol II expressly recognizes the right of persons deprived of their liberty to receive relief. (18)

    4881 Clearly it is not possible to draw up an exhaustive list of criteria to determine at what point the population is suffering undue hardship", but it is appropriate to take into account the usual standard of living of the population concerned and the needs provoked by hostilities, (19) particularly medical requirements which are covered by the very general term "medical supplies". In such circumstances consignments of relief are essential.

    4882 International relief actions are based on fundamental conditions which provide every guarantee of non-intervention: i.e., that they are "of an exclusively humanitarian and impartial nature and [...] are conducted without any adverse distinction". (20)

    4883 When these two conditions are fulfilled, relief actions "shall be undertaken subject to the consent of the High Contracting Party concerned".

    4884 In principle the "High Contracting Party concerned" means the government in power. In exceptional cases when it is not possible to determine which are the authorities concerned, consent is to be presumed in view of the fact that assistance for the victims is of paramount importance and should not suffer any delay.

    4885 The fact that consent is required does not mean that the decision is left to the discretion of the parties. If the survival of the population is threatened and a humanitarian organization fulfilling the required conditions of impartiality and non-discrimination is able to remedy this situation, relief actions must take place. In fact, they are the only way of combating starvation when local resources have been exhausted. The authorities responsible for safeguarding the population in the whole of the territory of the State cannot refuse such relief without good grounds. Such a refusal would be equivalent to a violation of the rule prohibiting the use of starvation as a method of combat as the population would be left deliberately to die of hunger without any measures being taken. Consequently this would be a violation of Article 14 of the Protocol ' (Protection of objects indispensable to the survival of the civilian population) ' (21)

    [p.1480] 4886 Moreover, it should be noted that this provision requires that relief actions "shall be undertaken". The use of the future tense implies an obligation which appears also in other versions of the text, for example, the French one: "seront entreprises".

    4887 If relief actions were carried out with great care and precision as to technical detail, it may be possible to overcome political or security objections which might be raised. The actions would have to strictly comply with any conditions that might be imposed (examples: arrangement of transits in accordance with a precise timetable and itinerary, checking on convoys).

    4888 Implementation in such a way would serve to clearly establish responsibilities. Once relief actions are accepted in principle, the authorities are under an obligation to co-operate, in particular by facilitating the rapid transit of relief consignments and by ensuring the safety of convoys.

    4889 In return, assistance by a humanitarian organization provides some important guarantees, for such organizations are run in such a way as to undertake and share responsibilities with the authorities at various levels:

    1) ' Vis-à-vis the victims: ' The humanitarian organization ensures that the assistance goes only to the beneficiaries, giving priority to the most vulnerable among them (women, children etc.). Professional methods and experience are valuable aids (for example, supervision of the distribution by means of marking recipients' hands with indelible ink).
    2) ' Vis-à-vis the authorities themselves: ' The humanitarian organization guarantees that there will be no illegal traffic and the authorities control its activities.
    3) ' Vis-à-vis the donors: ' The humanitarian organization is in a position to give guarantees to those providing the relief that consignments will not serve any other purposes than those for which they are intended; its presence and its action, for which it must render accounts, will vouch for that.

    4890 Such a guarantee of the proper use of relief is likely to enable the authorities to get more support from the international community.

    4891 Article 18, paragraph 2, does not in any way reduces the ICRC's right of initiative, as laid down in common Article 3 (22) since the conditions of application of the latter remain unchanged. (23)

    4892 Consequently the ICRC continues to be entitled to offer its services to each party without such a step being considered as interference in the internal affairs of the State or as infringing its sovereignty, whether or not the offer is accepted.

    4893 In a case where the Protocol were no longer be applied, the ICRC, by the very nature of the mandate entrusted to it by the international community, would hav [p.1481] to do all it could to ensure that the general principles of humanitarian law were safeguarded.

    4894 With a view to the interests of victims it could undertake a relief action to assist them, wherever they are, while fully meeting its responsibilities, in particular as regards impartiality and non-discrimination.

    ' S.J. '

    * (1) [(1) p.1476] ' CE 1972, Report ', Vol. I, p. 57, para. 2.23;

    (2) [(2) p.1476] Resolution XVII on medical care, XIXth International Conference of the Red Cross, New Delhi, 1957;

    (3) [(3) p.1476] Resolution XXVI, XXIst International Conference of the Red Cross, Istanbul, 1969, ' International Red Cross Handbook, ' op. cit., 12th ed., p. 661. See also introduction to Part IV, Section II, Protocol I;

    (4) [(4) p.1476] Resolution XXVI, sub-para. (5), XXIst Conference, Istanbul, 1969;

    (5) [(5) p.1476] Resolution 2675 (XXV) of the United Nations, Principle 8: "The provision of international relief to civilian populations is in conformity with the humanitarian principles of the Charter of the United Nations, the Universal Declaration of Human Rights and other international instruments in the field of human rights. The Declaration of Principles for International Humanitarian Relief to the Civilian Population in Disaster Situations, as laid down in Resolution XXVI adopted by the twenty-first International Conference of the Red Cross, shall apply in situations of armed conflict, and all parties to a conflict should make every effort to facilitate this application.";

    6) [(6) p.1477] In Protocol I, these rules are developed in the following Articles: Art. 17: Role of the civilian population and of aid societies, Art. 70: Relief actions and Art. 81: Activities of the Red Cross and other humanitarian organizations, supra, pp. 209, 815 and 935;

    (7) [(7) p.1477] On the name and the emblem of the red lion and sun, cf. supra, commentary Art. 9, note 10, p. 1419;

    (8) [(8) p.1477] The term "relief societies" originated in the Hague Regulations of 1899 Respecting the Laws and Customs of War on Land (Art. 15). It was used in the 1907 Regulations, and again in all the Geneva Conventions 1906: Art. 10; 1929: Art. 10; 1949: Arts. 18 and 26 of the First Convention, for example);

    (9) [(9) p.1477] See ' Commentary I, ' p. 225 (Art. 26);

    (10) [(10) p.1477] See ' Commentary IV, ' p. 330 (Art. 63);

    (11) [(11) p.1477] See O.R. pp. 348-354, CDDH/II/SR.88, paras. 24-50;

    (12) [(12) p.1478] Originally the role of the civilian population was dealt with in a separate article in the draft (Art. 14); it was subsequently incorporated into Art. 18 of Protocol II; see O.R. XIII, p. 194, CDDH/221/Rev.1, and O.R. IV, p. 51, CDDH/427;

    (13) [(13) p.1478] Geneva Convention of 22 August 1864 for the Amelioration of the Condition of the Wounded in Armies in the Field, Art. 5, para. 1;

    (14) [(14) p.1478] The words "care for" implies "leaving the inhabitants completely free to undertake the entire treatment of a wounded or sick person until the time of his final recovery, if they wish to do so and possess the necessary means". "To "collect" a wounded man is to receive him into one's house. But it may also mean to bring him in from where he is lying wounded." ' Commentary I ', p. 187 (Art. 18);

    (15) [(15) p.1478] O.R. XIII, p. 194, CDDH/221/Rev.1;

    (16) [(16) p.1478] Art. 7: Protection and care, and Art. 8: Search, see supra, pp. 1407 and 1413;

    (17) [(17) p.1478] Art. 7, para. 1;

    (18) [(18) p.1479] Art. 5, para. 1(c), supra, p. 1388;

    (19) [(19) p.1479] See ' Commentary Drafts, ' p. 166;

    (20) [(20) p.1479] For the interpretation of this term see commentary Art. 70, Protocol I, supra, p. 815. It should be noted that a general guarantee of non-interference is explicitly laid down in Art. 3, para. 2, of Protocol II, which reads as follows: "Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs."; see supra, p. 1363;

    (21) [(21) p.1479] See the commentary on the article, supra, p. 1455;

    (22) [(22) p.1480] "An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict." (para. 2);

    (23) [(23) p.1480] Art. 1, para. 1; see commentary Art. 1, supra, p. 1347;