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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
. -- APPLICATION TO PROTECTING POWERS AND
The Diplomatic Conference adopted Article 30 without making any change of importance to the text based on the Government experts' recommendations. The Article is placed in this Section as all protected persons, both in the territory of a belligerent power and in occupied territory, are entitled to communicate with the Protecting Powers and with relief organizations. It should be read in conjunction With Article 142
, one of the general provisions concerning the execution of the Convention, which establishes the status of relief organizations [p.214] and other bodies. The two Articles are inter-dependent and complementary; in fact, they overlap to some extent, so that the commentary on one forms part of the commentary on the other.
Since the section with which we are dealing is concerned with the treatment of protected persons, Article 30 might merely have mentioned the right of such persons to appeal to the Protecting Power and to relief societies. In view of the importance of the subject, however, the authors of the Convention, when stating the general principle involved, had no hesitation in giving certain details concerning its application in practice.
PARAGRAPH 1. -- RIGHT OF COMMUNICATION
1. ' Principle '
As the Rapporteur of Committee III of the Diplomatic Conference very rightly pointed out, "it is not enough to grant rights to protected persons and to lay responsibility on the States: protected persons must also be furnished with the support they require to obtain their rights; they would otherwise be helpless from a legal point of view in relation to the Power in Whose hands they are. Article 30 therefore charges such Powers to afford protected persons every faculty for making application to the Protecting Power, the International Committee of the Red Cross etc." (1)
The right in question is an absolute right, possessed by all protected persons both in the territory of a Party to the conflict and in occupied territory, whether they are not detained, or are internees, persons placed in assigned residence or detained. The communication may have a wide variety of causes, and it may take the form of an application, suggestion, a complaint, a protest, a request for assistance, etc.; it is not even necessary for an infringement of the Convention on the part of the authorities to have occurred. The right of communication may be exercised under all circumstances. It must be pointed out, however, that this right may be suspended if the seriousness of the circumstances so demands (2).
The provision under consideration will not be really effective unless the right of communication can be exercised without hindrance; the Diplomatic Conference therefore wished to give it an essentially practical form; hence the absence of procedural clauses. The Conference [p.215] considered that the right of communication is justified by the mere fact of a protected person needing assistance.
The fact that the new Convention grants civilian war victims a formal and absolute right of appeal to supervising and relief agencies, a facility which up till then had depended solely on the goodwill of the Parties to the conflict, is of great significance; the certainty of being able to avoid isolation, of being able to establish contact with impartial charitable agencies, together with the hope of sympathy and relief in cases of distress, is psychologically most valuable to protected persons for the moral support it gives them. On the other hand, the obligation laid on the belligerents represents a warning and will encourage a scrupulous observation of the provisions of the Convention.
2. ' Organizations '
A. ' The Protecting Powers '. -- Article 9
provides the legal basis for the action of Protecting Powers in favour of protected persons, since it gives them the task of supervising the application of the Convention. Thirty-two other Articles provide for the intervention of those Powers in specific cases. Article 30 is a very valuable addition to this system of intervention lex conventione, since it gives the protected persons an opportunity of themselves making the Protecting Power act, by means of a simple individual request.
B. ' Humanitarian organizations '. -- In addition to the Protecting Powers, Article 30 mentions the International Committee of the Red Cross and the National Red Cross Societies. It is not intended to consider here the general problems connected with the admission and status of relief organizations within the territory of the Parties to the conflict (3), but merely to emphasize one of the essential aspects of their work.
(a) ' The International Committee of the Red Cross ' appears to be particularly well qualified to receive complaints, requests and suggestions of various kinds from protected persons. Because of its traditional neutrality and impartiality and its independence it is in a unique position as a neutral intermediary for all categories of protected person. Its position, in fact, is very different from that of the Protecting Powers, which, being agents of belligerent States, can only receive applications from people who owe allegiance to those State. Thus during past wars the International Committee has brought assistance and relief to millions of people in distress. For some of [p.216] these unfortunates the Committee represented their last defence against arbitrary action by the enemy authorities.
Although the Convention leaves protected persons complete freedom of choice, there are some cases which naturally fall to a specific organization. Certain matters of an official nature in general form part of the duties of the Protecting Powers; examples are legal aid, the issue and renewal of passports, the attestation of documents, the issue of birth, marriage and death certificates, the laws of inheritance, the protection of private property and many other questions Which are dealt with in peacetime by the diplomatic or consular service.
On the other hand humanitarian Organizations will be qualified to intervene and to bring relief in response to appeals from human beings in distress or in order to come to the spiritual or material aid of protected persons.
(b) The Diplomatic Conference also mentioned the ' National Red Cross (Red Crescent, Red Lion and Sun) Societies ' of the countries where the protected persons are living, as a tribute to the enormous amount of Work which they accomplished in behalf of civilian victims Of the War.
The Societies, however, are under certain circumstances in a position different from that of the Protecting Powers or the International Committee. In a belligerent country or a country involved in the conflict, the National Red Cross Society has not the same degree of independence as the Protecting Powers (which cannot of course be Parties to the conflict) or the International Committee of the Red Cross (whose members are citizens of a neutral State). The National Societies have in fact close bonds with the country in which they do their work. It is therefore necessary to distinguish between two different situations:
1. ' In the territory of Parties to the conflict, ' the protected persons within the meaning of Article 4
of the Convention are aliens, and generally of enemy nationality. National Societies which extend their relief programme to cover all victims of the war (4) are worthy of the highest praise. It must be recognized, however, that it will sometimes be difficult for a National Society to respond to appeals from enemy subjects. Their attitude might be misunderstood by public opinion and courage and integrity would be needed to have it accepted. Nevertheless every effort must be made to ensure that the principles of humanitarian aid, without discrimination, whose [p.217] moral value is so high, take precedence over national interests and are applied to everyone, friend and foe with the same solicitude, the same devotion, disregarding all national, racial, political, religious, social and other considerations. That is the National Societies' most noble task -- one which is inspired directly by the idea on Which the Red Cross is based.
Consequently, National Red Cross Societies which have not already done so, will no doubt feel called upon to modify their statutes with a view to organizing this charitable work in behalf of civilians. It would be desirable to complete all such arrangements in peacetime, as the operation of relief services requires detailed organization, effective leadership and a large and well-qualified staff, if the work is to be done properly.
2. ' In occupied territories, ' the protected persons will represent nearly the whole of the population. The activities of the National Society of the occupied territory will therefore be mainly concerned with their fellow countrymen. There is no need to emphasize the importance of the privilege given to such a society. How much suffering could have been relieved if this formal right had existed before the last war, during which people were detained and imprisoned without being able to inform anyone or apply to any organization which could help them.
It is in occupied territories that this right to communication is of greatest importance; it opens up a wide field of activities for National Red Cross Societies, but they must be careful not to promote hostile action against the occupation forces, under the cover of relief activities. Patriotic feelings may make this temptation a strong one; but to give way to it would inevitably cause the collapse of a system built up with such pains.
(c) The paragraph provides, lastly, that protected persons may apply to any other organization that might assist them.
The National Red Cross Societies of countries other than that in which the protected persons are living will certainly be included among those organizations. The Red Cross Societies in question, particularly those of neutral countries, will sometimes be in a better position to take action than local Red Cross organizations, for the reasons given above. The Diplomatic Conference deliberately refrained from making the assistance of such organizations subject to any condition, other than that of being capable of assisting those Who ask for their help (5). Under circumstances where distress assumes such proportions that [p.218] there can never be enough assistance, it is essential to call upon all possible sources of relief. These organizations, however, whether national or international, must likewise strictly avoid, in their humanitarian activities, any action hostile to the Power in whose territory they are working or to the Occupying Power. These principles, needless to repeat, govern all forms of relief organized in connection
with the Geneva Convention (6).
PARAGRAPH 2. -- FACILITIES. RESERVATION
The Convention requires the Parties to the conflict to grant all facilities to the Protecting Powers and relief organizations. That means that it will not be enough merely to authorize them to carry out their work; their task must be facilitated and promoted. It is the duty of the authorities to take all necessary steps to allow approved organizations to take rapid and effective action wherever they are asked to give assistance. Among examples of such measures can be mentioned the provision of facilities for delegates to move about and carry on correspondence, to have free access to all places where protected persons are living, transport facilities and facilities for distributing relief, etc. (7). The obligation to facilitate this work is limited however by military or security considerations, as stated in the reservation at the end of the paragraph. It is essential, however, that the belligerents, who will be sole judges o the validity of the reasons put forward, should show moderation in the use they make of this reservation and only apply
it in cases of real necessity. Moreover limitations should only continue as long as the reasons for them continue to exist. States should only resort to them as an exceptional and temporary measure and not use them as a pretext for paralysing the Whole work of relief. The right of communication of protected persons may, for instance, be temporarily restricted by means of exceptional measures taken to ensure the secrecy of military operations in certain specified areas; but such restrictions should never be applied generally and they should be lifted as soon as circumstances allow; in the meantime the responsible authorities should make suitable arrangements in behalf of the protected persons in the areas concerned.
It should be noted also that the reservation in regard to military or security considerations is merely a repetition of a reservation already discussed in regard to Article 9
in connexion with the general [p.219] activities of the Protecting Powers. The same reservation is also found at the beginning of Article 142
PARAGRAPH 3. -- VISITS
Paragraph 3 begins with a reference to Article 143
, which authorizes representatives or delegates of the Protecting Powers and delegates of the International Committee of the Red Cross to go to all places where protected persons are, particularly to places of internment, detention and work (8).
The object of the clause under discussion is to grant the same prerogatives to organizations not mentioned in Article 143
, which are also able to give protected persons moral or practical assistance. The Convention does not however place the "other organizations" on a par with the Protecting Power and the International Committee. So far as they are concerned, the Power exercising authority over the territory where they wish to do their work is left with certain discretionary and restrictive powers, based on the terms of Article 142
. That Power, however, is under a moral obligation to give its consent to the work of any organization which is capable of performing the tasks and is impartial.
Notes: (1) [(1) p.214] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. Il-A, p. 822;
(2) [(2) p.214] See Article 5;
(3) [(1) p.215] See Articles 10, 63 and 142;
(4) [(1) p.216] See in this connection XVIIth International
Conference of the Red Cross, Resolutions 25 and 26;
(5) [(1) p.217] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 644-645;
(6) [(1) p.218] This obligation is enforceable through the
Detaining Power's right to limit the number of such
organizations (see Article 142, para. 2);
(7) [(2) p.218] See Commentary on Article 142;
(8) [(1) p.219] Similar facilities, subject to certain
conditions, are provided under Article 142 for religious
organizations, relief societies or any other organizations
assisting the protected persons. Article 142 might
therefore have been mentioned here as well as Article 143.
The omission is apparently due to the fact that Article
142 was inserted in the Convention by the Diplomatic
Conference. It was not contained in the Stockholm Draft.
The Article under discussion, based in this respect on the
Stockholm Draft, was adopted as it stood and consequently
does not refer to the new Article 142;