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Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.
Art. 9. Chapter I : General provisions
[p.66] ARTICLE 9
. -- ACTIVITIES OF THE INTERNATIONAL
COMMITTEE OF THE RED CROSS
This provision reproduces Article 88 of the 1929
Convention relative to the Treatment of Prisoners of War in a more general form applicable to all four 1949 Conventions (1).
On the basis of that provision the International Committee of the Red Cross undertook and successfully carried out a considerable amount of work during the Second World War. There is no need to describe that work here, even briefly (2).
It should be noted that that work, with all it entailed in the way of initiative, negotiations and effort (even including the formation of a fleet to carry relief supplies) was only possible, with very few exceptions, where the 1929 Prisoners of War Convention was in force (3).
[p.67] At the Diplomatic Conference the discussion on this provision was very short. No one contested the principle involved. On the contrary, the draft was expanded to include a reference to "any other impartial humanitarian organization" after the words "the International Committee of the Red Cross". This addition was justified, and the Article thus amended was accordingly adopted in plenary assembly without discussion or opposition.
COMMENTS ON THE ARTICLE
The reference in Article 9
of the new Conventions, among the general Articles, to the right of humanitarian initiative gives it wide scope. It means that ' none ' of the provisions of the Convention excludes humanitarian activities on the Part of the International Committee of the Red Cross (4).
In theory, therefore, all humanitarian activities are covered. They are, however, covered subject to certain conditions relating to the character of the organization undertaking them, the nature and object of the activities concerned and, lastly, the consent of the Parties to the conflict.
1. ' Approved organizations '
If they are to be authorized, the humanitarian activities must be undertaken by the International Committee of the Red Cross or by any other ' impartial humanitarian ' organization. The International Committee is mentioned in two capacities -- firstly on its own account, because of its special character and its earlier activities (which it is asked to renew should occasion arise, and which it is desired to facilitate); and secondly, as an example of what is meant by "impartial humanitarian organization". Being the founder body of the Red Cross and the promoter of the Geneva Conventions, it is by tradition and organization better qualified than any other body to help effectively in safeguarding the principles expressed in the Conventions.
[p.68] The organization must be ' humanitarian '; in other words it must be concerned with the condition of man, considered solely as a human being, regardless of his value as a military, political, professional or other unit. It must also be ' impartial '. Article 9 does not require it to be international. The International Committee of the Red Cross itself is international only so far as its activities are concerned; its membership is not international, for it is composed solely of Swiss citizens. Furthermore, the Convention does not require the organization in question to be neutral, but it is obvious that impartiality benefits greatly from neutrality.
2. ' Activities authorized '
In order to be authorized, the organization's activities must be purely humanitarian in character; that is to say, they must be concerned with human beings as such and must not be affected by any political or military considerations. The whole Convention is designed with a view to the application of the principle contained in Article 12
. Within those limits, any subsidiary activity which helps to implement the principles of the Convention is not only authorized but desirable under Article 9. Such activities may take the form of:
1. Representations, interventions, suggestions and practical measure
affecting the ' protection ' accorded under the Convention;
2. The sending of medical and other personnel and equipment;
3. The sending and distribution of relief (foodstuffs, clothing and
medicaments) -- in short, anything which can contribute to the humane
treatment of those to whom the Convention is applicable.
These activities must be impartial, but it should be emphasized that impartiality does not necessarily mean mathematical equality. If a rescuer has only ten life-belts to distribute among a hundred shipwrecked persons, the condition of impartiality does not in any way require him to divide them into one hundred unusable pieces, still less to refrain from distributing them for fear of being unfair. It means that he must not allow his choice to be governed by prejudice or by considerations regarding the person of [p.69] those to whom he gives or refuses assistance. The condition of impartiality is fulfilled if he gives the life-belts to the ten persons within his reach who seem in greatest danger, making no distinction between friends, allies or enemies.
All these humanitarian activities are subject to one final condition -- the consent of the Parties to the conflict. This condition is harsh but inevitable. The belligerent Powers do not have to give a reason for their refusal; but being bound to apply the Convention they alone must bear the responsibility if they refuse help in carrying out their commitments.
The "Parties concerned" must be taken to mean those upon which the possibility of carrying out the action contemplated depends. For example, when relief consignments are forwarded, it is necessary to obtain the consent not only of the State to which they are being sent, but also of the State from which they come, of the countries through which they pass in transit and, if they have to pass through a blockade, of the Powers which control that blockade.
3. ' Scope of the Article '
The scope of Article 9 of the present Convention is obviously less than that of the corresponding Article in the Third
Conventions. Nevertheless, the provision has its own value. No one can foretell what a future war will consist of, under what conditions it will be waged and to what needs it will give rise. It is therefore right that a door should be left open for any initiative or action, however unforeseeable today, which may be of real assistance in protecting, caring for and aiding the wounded, sick and shipwrecked (5).
Lastly, Article 9 is of value from the point of view of principle, since it provides a corner for something which no legal text can [p.70] prescribe, but which is still one of the most effective means of combating war -- namely charity, or in other words the spirit of peace. And through this Article which is common to all of them, the four Geneva Conventions of 1949 perpetuate Henry Dunant's gesture on the field of battle. Article 9 is more than a tribute paid to Henry Dunant; it is an invitation to all men of goodwill to renew his gesture.
* (1) [(2) p.66] See ' Commentary I ', pp. 103-107;
(2) [(3) p.66] Central Prisoners of War Agency: approximately
40,000,000 index-cards; number of visits to
prisoner-of-war camps: 11,000; relief transported and
distributed in prisoner-of-war camps: 450,000 tons. See on
this subject ' Report of the International Committee of
the Red Cross on its activities during the Second World
War ', in three volumes, Geneva, 1948. Vol. I -- General
Activities, 736 pages; Vol. II -- The Central Agency for
Prisoners of War, 320 pages; Vol. III -- Relief
Activities, 359 pages;
(3) [(4) p.66] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War ', Vol. I, Part III, Chapters XI and XII. Thus, at a
time when certain prisoner-of-war camps were being visited
daily by its delegates and received whole trainloads of
relief supplies, access to other camps or sections of
camps was barred to the International Committee of the Red
Cross, and it could not secure the entry into them of a
single gramme of food, owing to the fact that they
contained prisoners of war whose countries of origin were
not bound by the Convention in their relations with the
Detaining Power. See also ' Inter Arma Caritas ': The Work
of the International Committee of the Red Cross during the
Second World War, Geneva, 1947;
(4) [(1) p.67] See ' Final Record of the Diplomatic Conference
of Geneva of 1949 ', Vol. II-B, p. 60;
(5) [(1) p.69] The importance of this Article is illustrated
by Article 125, paragraph 3, of the Third Convention and
Article 142, paragraph 3, of the Fourth Convention, which
state: "The special position of the International
Committee of the Red Cross in this field shall be
recognized and respected at all times". On the basis of
those Articles in particular, the Swiss Federal Council
has declared, for its part, that it recognizes the
international rôle of the International Committee of the
Red Cross and has requested the Swiss authorities to
assist it in carrying out its duties in all circumstances;