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Commentary - Art. 23. Part II : General protection of populations against certain consequences of war
    ARTICLE 23. -- CONSIGNMENTS OF MEDICAL SUPPLIES, FOOD AND
    CLOTHING


    [p.178] GENERAL BACKGROUND

    In consequence of the growing economic interdependence of States the blockade has become a most effective weapon. A ban on all trade with the enemy or with any country occupied by the enemy, strict regulations governing trade with neutral countries, and a extension of the idea of "war contraband" are measures whose object is to place the adverse party in a state of complete economic and financial isolation; such measures cause suffering to the population as a whole, as they affect combatants and non-combatants indiscriminately.
    After the First World War several International Red Cross Conferences discussed this problem and recommended that combatants should come to an agreement to allow medicaments, medical equipment, food and clothing through any blockade when they were intended for certain categories of the civilian population (1).
    From the very beginning of the Second World War the International Committee of the Red Cross tried to persuade the authorities responsible to relax the blockade in order to relieve the distress among millions of human being who were exposed to famine or epidemics. Undaunted by the difficulties and the many refusals, the Committee made untiring efforts which were finally rewarded when it was able [p.179] to arrange for relief supplies to pass through the blockade to the civilian population which had been tried most sorely -- in Greece, the Channel Islands, the Netherlands, the "pockets" on the Atlantic coast etc. This assistance was given almost entirely to the populations of occupied countries: help could not be brought to those of the belligerent countries themselves until hostilities ended (2).
    In order to provide a legal basis for future action of this kind, the International Committee proposed inserting in the new Civilian Convention provisions designed to save certain categories of civilian from the unfortunate consequences of the blockade, the categories in question being the most vulnerable and most worthy of protection and assistance. The Committee prepared a draft Article prescribing free passage for any consignment of medicaments or medical equipment on its way to another contracting State, even an enemy. A second paragraph provided for the free passage of any consignment of food, clothing and tonics for the exclusive use of children under fifteen and expectant mothers, subject to supervision by the Protecting Powers as a safeguard for the interests of the State authorizing passage.
    The Committee's draft was approved by the XVIIth International Red Cross Conference (3) and submitted to the Diplomatic Conference in 1949. After lengthy discussion the Diplomatic Conference adopted the general principle but considerably expanded the stipulations concerning supervision.

    PARAGRAPH 1. -- RIGHT TO FREE PASSAGE

    1. ' Principle -- Distinction between two kinds of consignment '

    The right to free passage means that the articles and material in question may not be regarded as war contraband and cannot therefore be seized. This right is subject to numerous conditions which are laid down in the Article.
    [p.180] One condition relating to the nature of the consignment and the category of people for whom they are intended, appears in paragraph 1. A distinction is drawn between two classes of consignment: (1) consignments of medical and hospital stores and objects necessary for religious worship; (2) consignments of essential foodstuffs, clothing, and tonics. The former cannot be a means of reinforcing the war economy and can therefore be sent to the civilian population as a whole. On the other hand, consignments which fell into the second category are only entitled to free passage when they are to be used solely by children under fifteen, expectant mothers and maternity cases.
    This distinction is based on military considerations. The intention is to keep a strict check on the destination of provisions which might reinforce the economic potential of the enemy if used for other purposes.
    It is well to point out, as the International Committee had already done in the pamphlet "Remarks and Proposals" published on the eve of the Diplomatic Conference, that the words "intended only for civilians" cannot be interpreted a contrario as meaning that that right does not apply to medical consignments intended to be used for the treatment of wounded and sick of the armed forces. When such consignments are sent by sea, they are in fact entitled to free passage under Article 38 of the Second Geneva Convention of 1949. Such an interpretation is in full accordance with the general idea underlying the Geneva Conference, which, as we have mentioned on several occasions, tends to put the wounded and sick, whether civilians or members of the armed forces, on a footing of equality in the matter of relief. It would, therefore, be perfectly possible, if the present Article and the Article of the Second Convention mentioned were applied in conjunction, for a medical consignment to be intended both for civilians and for wounded and sick members of a
    belligerent's armed forces.
    It should also be noted that the expression "consignments of medical and hospital stores" covers consignments of any pharmaceutical products used in either preventive or therapeutic medicine, as well as consignments of medical, dental or surgical instruments or equipment.
    The paragraph stipulates that only essential foodstuffs are entitled to free passage. That should be understood to mean basic foodstuffs, necessary to the health and normal physical and mental development of the persons for whom they are intended, viz. children under fifteen, expectant mothers and maternity cases. Examples are milk, flour, sugar, fats and salt.
    [p.181] The term "tonics" covers any pharmaceutical products which are intended to restore normal vitality to the human organism (4).

    2. ' Scope of the provisions '

    The principle of the free passage of the consignments mentioned in paragraph 1, is general in scope. It applies to all such consignments, when they are intended for the civilian population of another contracting party, whether that party is an enemy, allied, associated or neutral State.
    It is the words "even if the latter is its adversary" which give this Article its full significance, since almost insurmountable obstacles have up to the present time been placed in the way of consignments intended for an enemy State. The provision is certainly intended to refer primarily to the relations between the States carrying out a blockade -- especially the great maritime powers, as they are the traditional blockading powers -- and the States against whom the blockade is directed.
    Furthermore, the principle of free passage applies to any consignment sent on any grounds whatever within the meaning of this Article. No distinction will be made between relief consignments in the strict sense of the term, sent by States or humanitarian organizations or private persons, and the imports of merchandise which a belligerent has acquired regularly through trade channels from allied or neutral States. The general character of the Article under discussion here distinguishes it from Article 59 and those following it, which are more limited in scope and refer only to relief consignments for the population of occupied territories.

    PARAGRAPH 2. -- SAFEGUARDS

    Paragraph 2 brings together, under (a) to (c), a number of conditions offering guarantees to the belligerents granting free passage that the consignments will not serve any purpose other than those for which provision is made in the Convention. Those guarantees are as follows:

    [p.182] A. ' Danger of misappropriation '. -- A doubt as to the destination of consignments would not be sufficient reason for refusing them free passage; the fears of the Power imposing the blockade must be based on serious grounds, i.e. they must have been inspired by the knowledge of certain definite facts. On the other hand, supervision by a neutral intermediary, e.g. by the Protecting Powers or the International Committee of the Red Cross, should afford the blockading Power adequate assurances. The question will be discussed again in the commentary on paragraph 3.

    B. ' Supervision '. -- It is essential that consignments should be subject to strict and constant supervision from the moment they arrive until they have been distributed. That task is primarily the responsibility of the Power to whom the Consignments are sent, but quite obviously only a disinterested organization, independent of the State receiving the consignment, will be in a position to offer the degree of efficiency and impartiality which the State granting free passage is entitled to demand.

    C. ' Ban on undue advantage '. -- The Diplomatic Conference completed this series of safeguards by a last condition, under which the right of free passage would not be grated to consignments through which a definite advantage might accrue to the enemy.
    This condition refers to the indirect effect the consignments in question might have on the enemy's position. It is true that any consignment of medical and hospital stores, food and clothing, always benefits the receiving Power in one way or another. The Convention does not disregard that fact ad to avoid a belligerent using it as a pretext for refusing to authorize any free passage of goods, it lays down that there must be some "definite advantage" (avantage manifeste). It will be agreed, generally speaking, that the contribution represented by authorized consignments should be limited: in the majority of cases, such consignments will be hardly sufficient to meet the most urgent needs and relieve the most pitiable distress; it is hardly likely, therefore, that they would represent assistance on such a scale that the military and economic position of a country was improved to any appreciable extent.
    Nevertheless, if, however unlikely it may seem, a belligerent has serious reason to think that the size and frequency of the consignments are likely to assist the military or economic efforts of the enemy, he would be entitled to refuse free passage.
    The conditions laid down in paragraph 2 have been criticized as leaving too much to the discretion of the blockading Powers. Such objections appear to be only too well justified. The wording of [p.183] paragraph 2 is vague and there is a danger that it may seriously jeopardize the principle set forth in paragraph 1. Nevertheless the Diplomatic Conference of 1949 had to bow to the harsh necessities of war; otherwise they would have had to abandon all idea of a general right of free passage. Some delegations had originally intended to accept the principle of free passage only in the form of an optional clause. It was only after the insertion of the safeguards set out under (a), (b), and (c) above, that it was possible to make the clause mandatory. It is doubtless true that the conditions in question cannot be gauged with mathematical precision and that the value of the principle will depend to a very large extent on the use which the Powers imposing the blockade make of their discretionary powers. It is to be hoped that they will use
    those powers in full awareness of their responsibilities.

    PARAGRAPH 3. -- PROTECTING POWERS

    The intervention of a neutral and independent intermediary is the best way to ensure that goods passing through the blockade actually reach the addressees named in the Convention. This supervision is one of the duties laid upon the Protecting Powers under Article 9 , which states that the Convention is to be applied with the cooperation and under the supervision of the Protecting Powers. Supervision of this kind often raises delicate problems. If it is to be effective, it must be carried out on the spot, at the very place where the goods are handed over to the beneficiaries: constant surveillance is necessary to ensure that the articles are in actual fact received by those for whom they are intended and that any illegal trafficking is made impossible. Receipts for individual consignments, frequent spot checks in depots and warehouses, periodical verification of distribution plans ad reports and other measures of supervision will make it possible to avoid abuses, the consequences of which would be borne in the first instance by those
    categories in the greatest distress and who could not possibly be held responsible for any unlawful acts which may have been committed.
    Although the Convention expressly mentions only the Protecting Powers, they are not alone in being able to assume responsibility for supervising the distribution of the consignments. Recourse might also be had to the good offices of another neutral State or any impartial humanitarian organization. Among the latter the International Committee of the Red Cross would appear to be particularly qualified to assume such a responsibility, by virtue of its independent position and its experience. Mention may be made in this connection of the [p.184] role played by the International Committee in the Second World War, during which the Allies only authorized relaxation of the blockade in cases where the Committee was able to supervise the forwarding and distribution of consignments.

    PARAGRAPH 4. -- METHODS OF FORWARDING

    Once free passage has been authorized, the consignments must be forwarded as rapidly as possible. This stipulation is justified in view of the charitable nature of the work. It reminds those responsible of the special character of the ship's cargoes or vehicle loads for which the blockade is raised.
    The State authorizing free passage is nevertheless entitled to prescribe the technical arrangements. No mention is made of the points on which its instructions will bear, but it will be agreed that the Power authorizing free passage is entitled to check the consignments and arrange for their forwarding at prescribed times and on prescribed routes. That will ensure the safety of the convoys and at the same time adequately safeguard the belligerents against abuses. The making of these technical arrangements presupposes the conclusion of an agreement between the Powers concerned in each case; a general agreement might be concluded, covering a certain period of time. The essential is that the arrangements should not run counter to the rule that the consignments should be forwarded as rapidly as possible.


    Notes: (1) [(1) p.178] See in particular, Resolution XII of the 1921
    Conference at Geneva, Resolution IX of The Hague
    Conference in 1928 and Resolution XXIV of the Brussels
    Conference of 1930;

    (2) [(1) p.179] One case may, however, be mentioned here: at
    the very beginning of the war, when the restrictions
    imposed by the blockade were still comparatively light,
    consignments of food from Latin America were able to pass
    through the blockade into Germany as a result of
    representations made by the International Committee of the
    Red Cross; they were then distributed to the wounded and
    sick by the German Red Cross: see ' Report of the
    International Committee of the Red Cross on its activities
    during the Second World War, ' Vol. III, p. 370.
    Relief actions in behalf of the populations of
    occupied territories and the role played by International
    Red Cross organizations are discussed. See ' Commentary '
    on Articles 59 ff.;

    (3) [(2) p.179] ' XVIIe Conférence internationale de la
    Croix-Rouge, résumé des débats des sous-commissions de la
    Commission juridique '; and ' Final Record of the
    Diplomatic Conference of Geneva of 1949, ' Vol. I, p. 117;

    (4) [(1) p.181] As an indication, Article 24 of the London
    Declaration of 1909 on the laws of maritime warfare,
    declares that food, clothing, clothing material and
    footwear suitable for military use are conditional
    contraband as opposed to absolute contraband. Article 29
    of the Declaration proclaims that articles and material
    used solely for treating the sick and wounded cannot be
    regarded as war contraband. The Declaration, however, was
    not ratified;