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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Art. 9. Part I : General provisions
. -- ACTIVITIES OF THE INTERNATIONAL COMMITTEE
OF THE RED CROSS
This provision reproduces Article 88
of the 1929 Convention in a more general form applicable to all four 1949 Conventions. Its origin goes back to the activities of the International Committee of the Red Cross during the First World War. At the beginning of the conflict [p.104] in 1914, the International Committee, following earlier precedents, opened an Agency which, by centralizing information on prisoners of war, re-established contact between prisoners of war and their families and helped to trace those who were missing. In addition, taking advantage of the fact that the Hague Regulations authorized approved relief societies to carry out their charitable activities, the Agency sent delegates to visit internment camps. These visits not only enabled it to ascertain the needs of the prisoners of war and bring them relief and moral comfort, but also served as a means of checking the application of the Hague Regulations of 1907 (1). Incomplete as it was, this spontaneous and gratuitous supervision often helped to bring about considerable
improvements in the situation of prisoners of war.
The terms of reference established by Article 88
for the activities of the International Committee were wide from one point of view and restricted from another. Wide because they did not specify the tasks to be carried out by the International Committee of the Red Cross, and so did not limit them. Restricted because this vagueness, and the fact that the provisions were not mandatory in character, meant that the International Committee of the Red Cross could not impose the action it wished to take upon the Parties concerned.
Reflection showed, however, that that was all that was necessary. In the first place, it would at that time have been almost inconceivable to entrust official duties to an organization which was not an international institution of an intergovernmental character but, in law, merely a private association of Swiss citizens. In the second place, had specific duties been entrusted to the International Committee of the Red Cross and its activities imposed upon the belligerent parties, the latter might have been tempted to shift to the Committee the responsibility for carrying out their own obligations.
The wording adopted did not affect the independence of the International Committee of the Red Cross and the very fact that the Committee was specifically mentioned in the Article amounted to recognition of its activities.
It was on the basis of this provision that 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 point in describing that work here, even briefly (2). A few figures will suffice:
[p.105] Central Prisoners of War Agency: approximately 40,000,000 index cards;
Number of visits to prisoner-of-war camps: 11,000;
Relief transported by the International Committee of the Red Cross and distributed in prisoner-of-war camps: 450,000 tons (equivalent to 90,000,000 parcels of 5 kilogrammes each).
And above all let us remember that this work, with all that it entailed in the way of initiative, negotiations and efforts (even including the formation of a fleet to carry the relief), was only possible thanks to the 1929 Convention (3).
Although it was only in the 1929 Prisoners of War Convention that its right of initiative was recognized, the International Committee of the Red Cross tried to intervene in behalf of other war victims. There again, however, its unremitting efforts in behalf of those detained in concentration camps met with constant refusal and even hostility (4), although it was successful, in certain cases, in protecting thousands of human beings and, alone or in co-operation with others, was able to carry out some major projects in connection, more particularly, with the supply of relief for civilian populations.
The 1947 Conference of Government Experts realized that Article 88
did not cover the activities of the International Committee of the Red Cross in the field of relief and considered that the provision should therefore be expanded.
At the Diplomatic Conference the discussion on this provision was very short (5). 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 only too well justified, and the Article thus amended was accordingly adopted in plenary assembly without discussion or opposition.
[p.106] COMMENTS ON THE ARTICLE
In the 1929 Convention, the right of initiative of the International Committee of the Red Cross was mentioned in connection with specific activities -- Articles 79
(Central Prisoners of War Agency), 86
(Organization of control).The reference to this right among the general Articles of the new Conventions gives it much greater 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. That is of importance in the case of the present Convention, which mentions the International Committee of the Red Cross in connection with a large number of specific provisions (6).
[p.107] Thus, in addition to those activities for which specific provision is made, all other humanitarian activities are covered in theory. 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 '
The humanitarian activities authorized 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". It must be remembered that the International Committee of the Red Cross is today, as when it was founded, simply a private association with its headquarters at Geneva, composed solely of Swiss citizens recruited by co-optation. It is therefore neutral by definition and is independent of any Government and any political party. Being the founder body of the Red Cross and the promoter of all 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.
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. As the United States delegate at the Conference remarked, it would have been regrettable if welfare organizations of a non-international character had been prevented from carrying out their activities in time of war (7). The International Committee of the Red Cross is not itself international so far as its membership is concerned, but only in its activities. Furthermore, the Convention does not require the organization 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 [p.108] with human beings as such, and must not be affected by any political or military consideration. 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 measures
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 noted that impartiality does not necessarily mean mathematical equality. If a rescue worker has only ten dressings to distribute to a hundred wounded, the condition of impartiality does not in any way mean that he must divide each dressing into ten equal -- but unusable -- fragments, and even less that he must not distribute 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 those to whom he gives or refuses assistance. The condition of impartiality is fulfilled, when the hundred wounded are dispersed, if the rescuer gives the dressings to the first ten wounded he is able to reach, irrespective of who they are, or, when they are all within his reach, if he is guided in his choice by the apparent gravity of the wounds, making no distinction between friends, allies and enemies. The ideal would be to be able to base the distribution of relief solely on the actual needs.
During the Second World War the action of the International Committee of the Red Cross itself, although impartial, was in actual fact very unequal. Should the International Committee have refrained from making its 11,000 visits to camps to which it had access, on the grounds that other camps were closed to it? Of course not. Its impartiality resided in the fact that it had offered its services equally to all the belligerent Powers. In the same way the 450,000 tons of relief sent to prisoner-of-war camps and distributed under the Committee's auspices were very unequally divided amongst prisoners of different nationalities. The reason in this case was that the International Committee of the Red Cross was not the donor, but merely an intermediary -- the only channel by which the parcels could pass through the blockade. Should it then have refused to transmit parcels which mothers had prepared for their sons, or the packages which a certain National Red Cross Society was sending to compatriots, simply because other mothers could not send such parcels or
because [p.109] those sent by other National Societies were more meagre? The answer again is no. The action of the International Committee of the Red Cross was impartial in that it was equally available as an intermediary to ' all ' mothers and ' all ' National Societies. But that did not prevent it from drawing the attention of the donor Societies, on several occasions, to inequalities which it had noted or, when whole camps were hurriedly closed during the last days of the conflict, from obtaining authority to distribute the parcels, whatever their origin or destination, to convoys of prisoners of war who were suffering from hunger and cold by the roadside.
All these humanitarian activities are subject to one final condition -- the consent of the Parties to the conflict concerned. 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 '
During the Second World War, it was on this right of initiative that the International Committee based all its activities in behalf of prisoners of war, according to the requirements of circumstances and the means at its disposal.
Article 9 is therefore an essential provision. Despite the specific provisions in the Convention relating to collective relief, special means of transport and the distribution of relief, no one can foretell what a future war may be. It is therefore right that a door should be left open for any initiative or action which, whatever the circumstances, may help in protecting and supporting prisoners of war.
Lastly, Article 9 is of great value from the point of view of principle, since it provides a corner for something which no legal text can prescribe, but which is nevertheless 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 [p.110] the field of battle. Article 9 is more than a tribute paid to Henry Dunant, it is an invitation to all men of good will to renew his gesture (8).
* (1) [(1) p.104] See above, on Article 8, pp. 93 ff.;
(2) [(2) p.104] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War, ' in three volumes, Geneva, 1948. Volume I -- General
activities, 736 pages; Volume II -- The Central Agency for
Prisoners of War, 320 pages; Volume III -- Relief
activities, 539 pages;
(3) [(1) p.105] 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 ' Report
of the International Committee of the Red Cross on its
activities during the Second World War, ' especially
Volume I, Part III, Chapters XI and XII. See also ' Inter
Arma Caritas: ' The Work of the International Committee of
the Red Cross during the Second World War, Geneva, 1947;
(4) [(2) p.105] See ' Documents sur l'activité du Comité
international de la Croix-Rouge en faveur des civils
détenus dans les camps de concentration en Allemagne
(1939-1945). ' See also ' Inter Arma Caritas, ' Chapter
(5) [(3) p.105] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-B, pp. 20-21, 29,
60, 111 and 346;
(6) [(1) p.106] In addition to Article 3, which constitutes a
convention applicable to conflicts not of an international
character, these provisions are as follows:
Art. 11, para. 2: Conciliation procedure, participation by
a person delegated by the International Committee of the
Art. 56, para. 3: Record of labour detachments, to be
communicated to the delegates of the International
Committee of the Red Cross;
Art. 72, para. 3: Right of the International Committee of
the Red Cross to propose limits on relief shipments, on
account of exceptional strain on transport or
Art. 73, para. 3: Right of the International Committee of
the Red Cross to supervise distribution of collective
relief, and prohibition of restriction on this right by
special agreements between the Parties to the conflict;
Art. 75, paras. 1: Organization by the International
& 2 (a) and (b): Committee of the Red Cross of special
means of transport for relief shipments;
Art. 79, para. 1: Election of prisoners' representatives
entrusted, ' inter alia, ' with representing prisoners of
war before the International Committee of the Red Cross;
Art. 81, para. 4: Facilities accorded to prisoners'
representatives for communication with the International
Committee of the Red Cross;
Art. 123, paras. 1 and 4: Right of initiative of the
International Committee of the Red Cross in proposing the
organization of a Central Agency, without restricting the
humanitarian activities of the International Committee;
Art. 125, para. 3: Recognition and respect, at all times,
of the International Committee of the Red Cross in the
field of assistance for prisoners of war;
Art. 126, para. 4: Prerogatives of delegates of the
International Committee of the Red Cross.
In addition, a number of provisions make specific
reference to the Central Prisoners of War Agency: Art. 30,
para. 4 (medical certificate); Art. 54, para. 2 (working
pay; occupational accidents and diseases); Art. 68, para.
2 (claims for compensation); Art. 70, para. 1 (capture
cards); Art. 74, para. 2 (exemption from postal and
transport charges); Art. 75, para. 2 (special means of
transport); Art. 77, para. 1 (legal documents); Art. 120,
para. 1 (wills); Art. 122, para. 3 (National Bureaux);
Art. 124 (exemption from charges); Annex IV.B. (capture
(7) [(1) p.107] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-B, p. 60;
(8) [(1) p.110] On the basis of this Article, and also Article
125, paragraph 3, below, the Swiss Federal Council has,
for its part, formally recognized the international rôle
of the ICRC and requested the Swiss authorities to
facilitate its action in all circumstances;