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Commentary - Civilian civil defence organizations of neutral or other States not Parties to the conflict and international co-ordinating organizations
    [p.759] Article 64 -- Civilian civil defence organizations of neutral or other States not Parties to the conflict and international co-ordinating organizations


    [p.760] Paragraph 1 -- Civilian civil defence organizations of States not parties to the conflict

    2538 Paragraph 1 deals with civilian civil defence organizations of States not Parties to the conflict which perform civil defence tasks in the territory of a Party to the conflict.

    2539 It is similar to Article 27 of the First Convention, which concerns ' medical ' personnel and units in comparable circumstances. (1)

    ' First sentence '

    2540 It follows from this sentence that:

    - only personnel and ' matériel ' of ' civilian ' civil defence organizations may be sent into the territory of a Party to the conflict. This therefore excludes support provided on an individual basis and any that might be provided by ' military ' civil defence organizations;
    - ' matériel ' (2) and personnel of such organizations cannot be sent into the territory of the Party to the conflict for which they are intended without the consent of the latter;
    - that Party ' controls ' the use of such ' matériel ' and the work carried out by such personnel which are thus placed ' under its responsibility: ' this is important particularly in case of abuse.

    2541 Moreover, it is indicated that such personnel and ' matériel ' may come from any State not Party to the conflict, whether or not it enjoys the status of neutrality or of permanent neutrality. (3)

    [p.761] 2542 On the other hand, it is not specifically stated, though it must be assumed that:

    -- such personnel act with the consent of their own State. This is explicitly mentioned in Article 27 of the First Convention with regard to a similar situation and follows, moreover, from the fact that civil defence organizations must be set up, or authorized to perform their tasks, by the authorities of the Party to which they belong;
    -- such personnel and ' matériel ' are exclusively assigned to, and used for civil defence tasks: this follows from the definition of civil defence organizations. (4)

    2543 The protection accorded the personnel and ' matériel ' covered by this paragraph is the same as that which they enjoy when performing their tasks in their own territory: this is achieved simply by including the reference to the relevant articles, i.e., Articles 62 ' (General protection), ' 63 ' (Civil defence in occupied territories), ' 65 ' (Cessation of protection) ' and 66 ' (Identification). ' However, a detailed examination of these articles reveals that certain points require clarification:

    -- while civil defence organizations are "entitled to perform their civil defence tasks" as provided in Article 62 ' (General protection), ' paragraph 1, this right is nevertheless more restricted for an organization acting in territory of a State which is not its own: the Party giving its consent may withdraw such consent without having to give a reason for its decision, with the possible exception of occupied territories; (5)
    -- Article 62 ' (General protection), ' paragraph 2, regarding appeals to civilians who are not members of civil defence organizations, does not in principle concern civilians of a State not Party to the conflict;
    -- In accordance with Article 63 ' (Civil defence in occupied territories), ' paragraphs 4 and 5, the Occupying Power cannot requisition ' matériel ' of civil defence organizations of States not Parties to the conflict. If such ' matériel ' is no longer necessary to perform civil defence tasks in occupied territories, it should be returned to the State from which it came.

    ' Second sentence '

    2544 The question which was raised here is whether the adverse Party to that receiving assistance from civil defence organizations of States not Parties to the conflict should give its consent to such assistance, or whether it should only be informed of it. (6)

    2545 Some were in favour of "the agreement of all conflicting Parties concerned" with a view to ensuring the personnel concerned "the fullest possible protection". (7)

    [p.762] 2546 However, the case for a need to obtain the consent of the adverse Party was defeated, particularly because of the difficulty of obtaining it and the delays this would cause, and because it "would confer upon one Party powers over territory which did not belong to it". (8) This last point of view prevailed.

    2547 Furthermore, the sentence finally adopted requires clarification on two points: is it the Party receiving the assistance or the State granting it which must give the notification? In submitting the draft of Article 57 the ICRC expert had indicated that there was an obligation to do so for the State from which the assistance came. (9) This approach was justified by the fact that in the draft text notification was a condition of protection (10)

    2548 In the text which was finally adopted this is clearly not the case, since notification must be given "as soon as possible". This leads to the conclusion that the ' obligation ' to give notification is imposed on the benefitting State even though it is also for obvious reasons in the interests of the State sending the assistance to transmit that information itself: on the one hand, to increase the safety of the personnel it has sent, and on the other, to maintain good relations with the Party which is to receive the notification.

    2549 If necessary, notification by the benefitting Party can be given through the intermediary of the Protecting Power, its substitute or an impartial humanitarian organization.

    2550 The notification must be given to every adverse Party "concerned". In general an adverse Party is concerned a priori from the time that it is involved in direct hostilities with the benefitting Party.

    2551 Thus it is only in a large-scale conflict involving several States that there may be adverse Parties which are not concerned, e.g., because they have no direct contact with the benefitting Party.

    ' Third sentence '

    2552 This sentence repeats the concept expressed in Article 27 , paragraph 3, of the First Convention. It was taken with a slight textual modification from the 1973 draft. As stated in the commentary on Article 27 mentioned above, this sentence is intended to prevent the assistance concerned from being "wrongly interpreted" and "the subject of criticism based on ignorance or malevolence". (11)

    2553 The phrase "interference in the conflict" means "participation in hostilities" or "a breach of neutrality". (12)

    2554 The proposal presented to the Conference of Government Experts to replace the expression "interference in the conflict" with "hostile act" (13) was not discussed.

    [p.763] 2555 In fact, a treaty affects only the ' legal ' relations between States Parties to that treaty, and to that extent the activity concerned in no way modifies the relations between the Party from which the assistance comes and the adverse Party of the benefitting State.

    ' Fourth sentence '

    2556 This sentence, which supplements the preceding sentence was added to take into account a proposal to replace the third sentence by: "in no circumstances shall this activity be of such a nature as to constitute interference in the conflict". (14) This proposal fundamentally altered the preceding sentence, (15) in that it implied that civil defence activities ' could ' be interference in the conflict, and that precautions should always be taken to ensure that they were not. The adoption of such a provision would have rendered any civil defence activity undertaken by a State not Party to the conflict very risky.

    2557 The compromise which was finally achieved therefore consisted of adding the sentence under consideration here to the third sentence, which could then be retained in its original form (16)

    2558 The fourth sentence clarifies the preceding sentence, though without diminishing its scope. In other words, if, for one reason or another, the civil defence activity concerned were carried out without due regard to "the security interests of the Parties to the conflict concerned", this could still not be termed interference in the conflict. In fact, it is only a recommendation. (17)

    2559 However, there is a limit: the activity must be ' civil defence activity. ' In this respect great care should be taken to ensure in particular that personnel of civil defence organizations of States not Parties to the conflict are only assigned to tasks which manifestly belong to civil defence and which do not entail any risk of such personnel getting involved in performing other tasks (18)

    2560 In this context the expression "Parties to the conflict concerned" refers to the adverse Parties of the benefitting Party. In fact, the interests of the benefitting Party are ensured by the fact that the activities are placed under its control -- so that, for example, it can prevent access of the personnel concerned to areas containing strategic objectives.

    Paragraph 2 -- International co-ordination

    2561 This paragraph lays down the principle of international co-ordination of civil defence actions and of the protection of international civil defence organizations. [p.764] These two things should be distinguished, however, since co-ordination may take place even in the absence of international organizations.

    ' First sentence '

    2562 Although protection of international organizations was provided for in the 1973 draft, the question of co-ordination had not been broached. This concept was introduced by Committee II. It was the result of a compromise, (19) as some were afraid to grant international civil defence organizations the power to coordinate actions. For them, "relief actions could not be compared with civil defence actions. The latter might constitute interference in the conflict" (20)

    2563 This point of view was contested by others who considered that "there were [...] no grounds for any misgivings about the scope of the aid envisaged" (21)

    2564 Finally, international co-ordination of civil defence activities is only ' recommended ' (in contrast with the international co-ordination of relief actions (22)) to Parties receiving assistance and those providing it, if there is reason to do so. In other words, it is admitted that there are cases in which co-ordination is pointless, particularly when only one State supplies aid to a Party to the conflict. In addition, it is agreed that when co-ordination is useful, i.e., particularly if the aid comes from various different sources, it should not be ' imposed ' upon the Parties concerned.

    2565 Ideally co-ordination should be carried out, on the one hand, between those providing aid, so as to deal with all the needs of a particular conflict as a whole and avoid overlapping, and on the other hand, in each benefitting Party and under the responsibility of the latter, in order to organize all the activities coherently, taking into account the respective skills and specialized knowledge of the various organizations providing aid. (23)

    ' Second sentence '

    2566 The reference to international organizations led to some discussion, on the one hand, because of the distrust felt by some with regard to co-ordination, as seen above, and on the other, because of the lack of specialized organizations capable of ensuring such co-ordination. The reference was introduced in the 1973 draft from a concern to provide for the future. (24) In fact, an international organization does already exist: the International Civil Defence Organization (ICDO). The observer for the ICDO indicated in Committee II that his organization "had been seeking to promote the organization by the countries in a given geographical [p.765] region of civil defence centres capable of intervening in the event of natural disasters in peacetime", but that it did not "possess [...] civil defence equipment". (25) The expectation that certain bodies already set up in peacetime would be used in future in times of armed conflict, was also raised as an argument in favour of referring to such organizations. (26)

    2567 The meaning of the expression "in such cases" at the beginning of the sentence is not quite clear. The question is whether the provisions of this Chapter apply to relevant organizations whenever there are matters to be co-ordinated (i.e., "when appropriate"), or only when the Parties concerned ' effectively ' facilitate coordination. In fact, the apparently automatic application of the second sentence once the conditions of the first sentence are fulfilled, is deceptive. As there is only a recommendation to facilitate international co-ordination, there cannot be an obligation to accept relevant international organizations. Thus this provision simply means that if such organizations are accepted -- a decision which rests solely with the benefitting State (27) -- they must be protected in accordance with this Chapter.

    2568 Thus, apart from the ICDO to the extent that it is operational, "relevant international organizations" comprise organizations which might be created in the future. Although some other international organizations, both governmental and non-governmental organizations, have already performed tasks which might be considered civil defence tasks, particularly in the field of evacuation, it should not be forgotten that the protection of this Chapter is confined to organizations assigned ' exclusively ' to such tasks, which therefore eliminates these organizations.

    2569 The word "relevant" is used here in the sense of being "specialized in the field". The French text uses the word "compétent", but, as the English version shows, this is not intended to give any value judgment and is not used as the opposite of the term "incompétent".

    2570 Moreover, it is self-evident that the organizations concerned must be civilian organizations. (28)

    2571 The reference to "the provisions of this Chapter" is imprecise. What was said with regard to organizations of States not Parties to the conflict in respect of the reference to Articles 62 ' (General protection), ' 63 ' (Civil defence in occupied territories) ' (29), 65 ' (Cessation of protection) ' and 66 ' (Identification) ' also applies here mutatis mutandis.

    2572 Incidentally, as the organizations under consideration are necessarily civilian, Article 67 ' (Members of the armed forces and military units assigned to civil defence organizations) ' cannot apply.

    [p.766] Paragraph 3

    2573 The object of Article 63 ' (Civil defence in occupied territories) ' is basically to determine the relationship between the Occupying Power and the civilian civil defence organizations in occupied territory. Therefore it does not clearly lay down the responsibility which falls upon the Occupying Power vis-à-vis the civilian population for ensuring that the necessary civil defence tasks are effectively performed.

    2574 In fact, this paragraph highlights this responsibility: it imposes on the Occupying Power the obligation to accept aid from outside if it cannot "ensure the adequate performance of civil defence tasks", which therefore implies the obligation to ensure that such tasks are performed one way or the other.

    2575 This paragraph was not contained in the 1973 draft. It was proposed in an amendment (30) and adopted with only some minor drafting modifications.

    2576 As the sponsor of this proposal stated, it was "designed to ensure that an Occupying Power could exclude or restrict the civil defence activities" of the organizations concerned only if it could "ensure the adequate performance of those activities itself". (31)

    2577 However, this apparently quite strict obligation requires some clarification.

    2578 First, it only arises when the Occupying Power cannot "ensure the adequate performance of civil defence tasks", either itself or through existing means available in occupied territory which under Article 63 ' (Civil defence in occupied territories) ' should stay in operation.

    2579 This is comparable to the obligation that it has to accept relief actions if it is not able itself to ensure the supplying of objects indispensable for the survival of the civilian population. (32) However, it must be admitted that it is difficult to establish exactly what the obligation entails, even more so than in the case of relief actions. In any case it seems clear that there could only be an ' obligation ' to accept aid in extreme cases, such as the evident inability to evacuate flood victims, to get fires under control or to rescue victims of air raids or earthquakes from under the rubble.

    2580 Does a State not Party to the conflict or an international co-ordinating organization (33), in such cases, have a right to ' impose ' aid, even against the wishes of the Occupying Power? It would have been unrealistic to claim that this was the case, and when it adopted its report, Committee II also adopted the following commentary:

    [p.767] "It is understood that the activities of civil defence bodies of neutral or other States not Parties to the conflict or of international co-ordinating organizations in occupied territories are subject to the consent and control of the Occupying Power." (34)

    2581 This statement is only apparently in contradiction with the text of the paragraph itself. In fact, there is indeed an obligation on the Occupying Power to ensure that civil defence tasks are performed adequately, if necessary by outside aid: if this is needed, the Protecting Power or its substitute will remind the Occupying Power of it. However, methods of implementation of this obligation cannot be prescribed to the Occupying Power, i.e., which State or States or organizations it should choose to provide the aid required. This involves compelling security considerations which it would not have been wise to ignore.

    ' Y. S. '


    NOTES

    (1) [(1) p.760] In this sense, cf. O.R. XII, p. 60, CDDH/II/SR.60, para. 36, which emphasizes, moreover, the usefulness of assistance from neutral countries "especially in conflicts taking place in countries which did not possess civil defence services". Cf. also ibid., p. 127, CDDH/II/SR.66, para. 2;

    (2) [(2) p.760] On the meaning to be given to this word, cf. commentary Art. 61, sub-para. (d), supra, p. 736;

    (3) [(3) p.760] On the meaning of the expression "neutral and other States not Parties to the conflict", cf. commentary Art. 2, sub-para. (c), supra, p. 61. In addition one delegation expressed its hesitation because it was afraid of abuses if this were made possible for all States not Parties to the conflict, and not only those enjoying permanent neutrality: cf. O.R. VI, p. 229, CDDH/SR.42, Annex (Indonesia, Art. 57);

    (4) [(4) p.761] Cf. commentary Art. 61, sub-para. (b), supra, pp. 732-733. Cf., in addition, commentary on the fourth sentence of this paragraph, infra, p. 763;

    (5) [(5) p.761] Cf. commentary para. 3, infra, pp. 766-767;

    (6) [(6) p.761] Cf. O.R. XII, p. 130, CDDH/II/SR.66, para. 19;

    (7) [(7) p.761] Cf. O.R. III, p. 260, CDDH/II/349, and O.R. XII, p. 70, CDDH/II/SR.61, para. 5;

    (8) [(8) p.762] Cf. O.R. XII, p. 129, CDDH/II/SR.66, paras. 15-16;

    (9) [(9) p.762] Ibid., p. 128, para. 3;

    (10) [(10) p.762] Cf. draft Art. 57, para. 1;

    (11) [(11) p.762] ' Commentary I, ' p. 233;

    (12) [(12) p.762] Ibid., p. 232;

    (13) [(13) p.762] Cf. ' CE 1972, Report ', Vol. I, p. 168, par. 3.331; Vol. II, p. 94, CE/COM III/OPC 14;

    (14) [(14) p.763] Cf. O.R. XII, p. 385, CDDH/II/SR.92, para. 16;

    (15) [(15) p.763] In this sense, cf. ibid., pp. 386-387, paras. 24-27;

    (16) [(16) p.763] On this subject, cf. O.R. XIII, p. 374, CDDH/406/Rev.1, para. 51; O.R. XII, pp. 385-389, CDDH/II/SR.92, paras. 16-44;

    (17) [(17) p.763] In this sense, cf. O.R. XII, p. 389, CDDH/II/SR.92, paras. 42-44;

    (18) [(18) p.763] On this subject, cf. commentary Art. 61, sub-para. (b), supra, pp. 732-735;

    (19) [(19) p.764] Cf. O.R. XIII, p. 370, CDDH/406/Rev.1, para. 51;

    (20) [(20) p.764] Cf. O.R. XII, p. 387, CDDH/II/SR.92, para. 28;

    (21) [(21) p.764] Ibid., para. 29;

    (22) [(22) p.764] Cf. Art. 70, para. 5;

    (23) [(23) p.764] Cf. also commentary Art. 70, para. 5, infra, p. 829;

    (24) [(24) p.764] Cf. O.R. XII, p. 128, CDDH/II/SR.66, para. 4;

    (25) [(25) p.765] Ibid., p. 62, CDDH/II/SR.60, para. 48;

    (26) [(26) p.765] Ibid. p. 384 CDDH/II/SR.92, paras. 5-8;

    (27) [(27) p.765] In this sense, cf. ibid., p. 385, para. 15;

    (28) [(28) p.765] Ibid;

    (29) [(29) p.765] Cf. commentary para. 1, first sentence, supra, pp. 747-749;

    (30) [(30) p.766] Cf. O.R. III, p. 259, CDDH/II/324 (Art. 57, para. 2);

    (31) [(31) p.766] O.R. XII, p. 129, CDDH/II/SR.66, para. 9;

    (32) [(32) p.766] Cf. particularly Art. 59, Fourth Convention, and Art. 69, para. 2, of the Protocol;

    (33) [(33) p.766] The reference here to "international co-ordinating organizations" rather than to "relevant international organizations", as in the preceding paragraph, is not intended to imply different organizations. The organizations referred to here are basically those mentioned in paragraph 2, which do not as yet really exist in practice;

    (34) [(34) p.767] O.R. XIII, p. 370, CDDH/406/Rev. 1, para. 53;