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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- RELIEF SOCIETIES AND OTHER ORGANIZATIONS
GENERAL REMARKS AND HISTORICAL SURVEY
When the Franco-German war of 1870 involved the internment in Germany of a large number of French prisoners, committees were founded, including one at Basle and one in Brussels, to bring relief [p.594] to them. Certain liberal-minded persons tried to have a clause concerning such committees inserted in the Brussels Declaration of 1874 in order to provide a basis in international law for their activities. The proposal was rejected. It was repeated in identical terms, however, and this time with success, at the Hague Conferences of 1899 and 1907. As Article 15
of the Hague Regulations, and Article 78
of the 1929 Convention, it served during two world wars as a legal basis for the relief activities of charitable societies, particularly national Red Cross Societies and the International Committee of the Red Cross.
During the preparations for revising the Conventions, the societies covered by the provision expressed the wish that its wording should be brought up to date without altering its spirit; that basic principle therefore retains all its value and upholds direct voluntary assistance given by individuals to the victims of conflicts. Of course, this assistance has had to take organized shape and be subjected to certain conditions before embodiment in the Conventions. Nevertheless, it has remained intact in the 1949 Conventions and it is that which makes this Article so valuable for relief societies in particular and for the whole Red Cross movement.
PARAGRAPH 1. -- DESCRIPTION AND TASKS OF RELIEF SOCIETIES
1. ' First sentence -- Description of relief societies --
Obligations of Detaining Powers '
A. ' Description of relief societies. ' -- Article 78
of the 1929 Convention (1) did not make clear to what societies it was to apply. It might have seemed difficult to apply it to international relief organizations, since it had first been inspired by the activities of purely national relief committees, set up on neutral territory.
How could the activities of the various relief societies, and particularly the Red Cross, in behalf of war victims be covered? The 1912 International Red Cross Conference had proposed one solution: the activity of a national society in behalf of prisoners would consist in collecting relief and forwarding it to the International Committee of the Red Cross for distribution to prisoners belonging to the same country as the society. According to that idea, it was primarily to the International Committee that the Article concerning relief societies should apply; although that interpretation was never disputed, it [p.595] was stated on several occasions that the clause should be made more precise when the Conventions were revised.
The increasingly important part played by public institutions in the national life resulted in the appearance, during the last world war, of institutions for relief to war victims which were of a public or semi-public character, but could in no way be called relief societies.
It was therefore necessary to extend the scope of the traditional expression but not to abandon it. For that reason, the phrase "or any other organization assisting prisoners of war" was first sentence of the paragraph. The wording was designed to be applicable to bodies whose principal and continuing purpose was not assistance to prisoners of war, but which during a conflict might include such assistance among their tasks; the humanitarian character of the organization may therefore be temporary. On the other hand, mere sporadic activities on the part of an organization could not be considered as conferring on it the standing and privileges of a relief society.
The national Red Cross Societies at one time wondered whether they would not be justified in claiming special mention among the relief societies, and they are in fact mentioned in Article 26
of the First (Wounded and Sick) Convention of 1949. Realizing, however, that other institutions had also made what was often a very considerable contribution to relief for the victims of conflicts, and anxious to avoid any competition, the Red Cross itself gave up the idea of being thus mentioned in the 1949 Conventions (2).
The expression "relief" includes spiritual assistance. During the Second World War, certain religious bodies were able to carry on activities in behalf of war victims on the basis of the Article relative to relief societies. They therefore wished this point to be mentioned expressly in the new Conventions and the Diplomatic Conference complied by referring to them in the first sentence of paragraph 1 (3).
Although the mention of religious bodies precedes that of "relief societies or any other organizations", that does not mean that the facilities envisaged must necessarily and always be granted primarily to religious organizations. The order in the list is simply based on the idea that spiritual matters should have precedence in an enumeration.
[p.596] B. ' Attitude and obligations of the Detaining Powers '. -- The paragraph begins with a reservation of the rights of the Detaining Powers.
While the Convention obliges the Detaining Power to threat the relief societies correctly and thus gives the most important humanitarian right to private societies, even foreign societies in most cases to enter its territory -- i.e. the territory of a belligerent -- it would not be reasonable to expect this to be done unless solid guarantees were given to the Power concerned. Even the old Article on relief societies (4) placed certain limits on their activities: overriding military necessity, the need for their delegates to obtain a permit from the military authorities and to observe the routine and police regulations prescribed.
The new Convention formulates all these restrictions in general terms in the opening sentence of the present paragraph.
On the other hand, Article 125 omits the requirement that such relief societies must be properly established according to the law of their country. Quite apart from the fact that international organizations sometimes find it difficult to fulfil this condition, it is, when all is said and done, of no interest to the Detaining Power and cannot be allowed to serve as a pretext for refusal.
The Detaining Power, therefore, can only base opposition to the activities of a relief society on the reservation mentioned above and on condition that the reservation is invoked in good faith. It is probable that a belligerent will only grant the right to carry out charitable work in behalf of prisoners of war in its territory to organizations whose traditions, constitution and quality of work inspire confidence.
Finally, in addition to the permission granted to the societies themselves, the Convention provides, as did the 1929 Convention, that delegates may carry out their duties in the territory of the Detaining Power or in a country it has occupied only if they have been duly accredited to that Power. This means that permission must be granted twice, once for the relief society and the second time for its delegates.
2. ' Second sentence -- Tasks of the relief societies '
The 1929 Convention referred to the activities of the relief societies in a very general way as "their humane task". It added, however, that representatives of the societies should "be permitted to distribute relief". Experience showed that this wording was inadequate; the [p.597] new Article gives more details, but those details need not be taken as setting limits on the activities of relief societies.
In particular, the new Convention lays down three main tasks of the societies allowed to operate in the territory of the Detaining Power or in the territory occupied by that Power:
A. ' Camp visits '. -- All organizations which meet the conditions laid down are entitled to visit the camps, and not merely the religious organizations as provided in the draft Convention; this therefore applies also to national Red Cross societies.
Visits by representatives of relief societies to prisoners of war form an essential part of their charitable activities, and will aim at providing the material and spiritual aid required by the prisoners and assisting them in organizing their leisure -- a point dealt with later. If, however unwittingly, those visits were to touch on other aspects of the life of prisoners of war, they would become to a certain extent a check on the application of the Conventions. Now that is a task which was deliberately entrusted by the Diplomatic Conference to the representatives of the Protecting Power or its substitutes; to this end, the Conference deliberately deleted the reference to relief societies which, in the draft Convention, also appeared in the Article on supervision (5). Would the belligerents tolerate such activities on the part of relief societies and would they not ultimately, out of mistrust, refuse them permission to operate? If the relief societies wish their right to visit prisoners to remain worth while and effective, they must
therefore use it with circumspection and prudence.
Visits to camps will enable the relief societies not only to give spiritual comfort to prisoners of war, but also to prepare relief action by making all necessary enquiries, to assist in distribution and to check the use of relief supplies distributed.
B. ' Distribution of relief supplies and material '. -- This phrase should be understood in a wide sense. In general, distribution will consist in apportioning relief supplies between the various places of internment rather than between individuals, although individual distribution might occur in certain circumstances. While the phrase does not mean that distribution must perforce be carried out by the representatives of relief societies in person, the spirit of the Convention implies that the rôle of the Societies should not be limited to the mere sending of relief; they should be able to participate personally in their charitable work in behalf of prisoners of war.
[p.598] The relief which may be distributed to prisoners of war under the present Article is the same as that mentioned in Article 72
. The wording of Article 125 in this connection corresponds in the main to that of Article 72, paragraph 1
. Relief may come from any source, so that the Detaining Power would not be justified in refusing it on grounds of origin. That is an embodiment of the principle of the Red Cross movement that assistance to victims should not only be given without distinction, but should also be accepted whatever its source, provided it is disinterested.
C. ' Assistance to prisoners of war in organizing their leisure '. -- This assistance can be given particularly through the despatch and distribution of books, musical instruments and all articles used for recreational, educational or artistic purposes as provided in Article 72
The wording of Article 125 shows that the representatives of relief societies are called upon to take a still more direct part in this matter, and even to assist prisoners of war in organizing their recreational activities. This provision may be compared with Article 38
, which obliges the Detaining Power to encourage activities of this kind, while respecting the individual preferences of every prisoner. The reservation was intended to prevent propaganda being made in the guise of recreational activities; the permission henceforth given to relief societies themselves to inaugurate or organize these activities will only reinforce, in the eyes of the prisoners of war concerned, the guarantees of impartiality which are desirable.
D. ' Facilities '. -- The activities of the relief societies having been defined, the Detaining Power must still grant these societies "all necessary facilities" for carrying out their missions.
Although it is impossible to say in advance what those facilities will be, one may mention in particular the issue of "laissez-passer" and facilities for forwarding to their destination relief supplies for distribution to those in need. These supplies, of course, must be transported free by the Detaining Power under Article 74
; it is also desirable that it should make available to the representatives of relief societies the necessary means of transport to enable them to carry out their distribution schemes in the best possible conditions.
One may assume that these facilities will be granted subject to the reservations listed at the beginning of paragraph 1. Although in this respect the relationship between the two sentences is not very clearly stated, it does, however, follow from the general spirit of the provision.
[p.599] 3. ' Third sentence. -- Headquarters of relief societies '
The 1912 International Red Cross Conference had already considered the possibility of a national Society acting in behalf of enemy aliens. That idea, which the experience of two world wars has not generally supported, was taken up again in a Resolution of the International Red Cross Conference in 1948 (6). It was necessary, therefore, to make provision for it when revising the Convention.
The new Article 125 is in keeping with these different requirements: relief societies may be constituted "in the territory of the Detaining Power, or in any other country, or they may have an international character".
The expression "in any other country" also covers relief societies in occupied countries.
The societies of "an international character" will be essentially international federations made up of several national societies pursuing the same aims. During the Second World War, there were many instances of relief societies of various kinds combining their efforts in a search for greater efficiency and establishing international organizations to co-ordinate their activities and to collect and forward their consignments. It is such federations as well as essentially international societies which are referred to here.
PARAGRAPH 2. -- LIMITATION OF THE NUMBER OF DELEGATES
In the course of the very first attempts at drafting, it was perceived that the Powers could not be obliged to accept the idea that any organizations which wished to come to the assistance of war victims had a legal right, under the Convention, to move about freely in the territory of the Detaining Power. Thus, at the very beginning, provision was made for the Powers to be authorized to restrict the number of societies whose delegates would be approved. A Government may indeed feel that it cannot repose any trust in a particular national or alien society or several such societies, or that it would prefer to refuse the offers of some of them, either because the offers received are too numerous or because it wishes to give a single society the task of collecting at a central point and distributing the consignments destined for prisoners of war in its hands.
[p.600] This possibility is immediately modified, however, by a formal condition: "such limitation shall not hinder the effective operation of adequate relief to all prisoners of war". The notion of "effective operation of adequate relief" may, of course, be interpreted in various ways. For that reason, it should not be left to the Detaining Power to decide that a restriction on the number of relief societies would have undesirable repercussions on the effectiveness of the assistance needed by those concerned. It seems, at first glance, that this comes within the competence of the Protecting Powers whose task it is to supervise the application of the Convention, and of the institution which has always worked to meet the needs of war victims: the International Committee of the Red Cross.
It would often be advisable, of course, for the societies concerned to co-ordinate their relief activities and to entrust the practical work on the spot to one of their number or to a body specially set up. Experience has shown that such a concentration of effort almost always leads to better co-ordination and greater effectiveness in relief actions.
PARAGRAPH 3. -- SPECIAL POSITION OF THE
INTERNATIONAL COMMITTEE OF THE RED CROSS
The Convention mentions explicitly the various specific tasks of the International Committee of the Red Cross, particularly the establishment of the Agency (Article 123
) and the visiting of prisoners of war wherever they are (Article 126
). It was therefore natural, in the Article on relief societies, to make special mention of the International Committee, since its activities in this sphere during the Second World War, still more than in the First, assumed enormous proportions (7).
Such was certainly the idea of the delegation which, at the Conference of Government Experts in 1947, proposed that the special position of the International Committee of the Red Cross should be recognized and respected at all times. At the Diplomatic Conference, two delegations wondered whether the provision was necessary. To have deleted it, however, while explicitly mentioning the other activities of the International Committee, could possibly have been interpreted as meaning that the latter's relief activities were considered [p.601] of lesser importance. That was actually not the intention of the delegations which had raised the question, but the majority of the others wished, on the contrary, to underline by this paragraph their belief that restrictions on the activities of relief societies could not, in principle, be applied to the International Committee of the Red Cross or at least that the Committee was the last body to which they should be applied. It was therefore finally decided unanimously to retain this paragraph (8).
The special position of the International Committee, which is at one and the same time a relief society and an information agency, arises not only from its traditional neutrality and impartiality, which are the basis for its unique position as neutral intermediary, but also from the relief activities in behalf of war victims which it has carried out over a very long period.
PARAGRAPH 4. -- RECEIPTS ISSUED ON DELIVERY OF RELIEF SUPPLIES
It has already been noted, in the commentary on Article 72
, that a receipt signed by prisoners of war is no longer necessary. As regards collective relief especially, the prisoners' representatives and the authorities responsible for supervising the application of the Convention have certain duties to perform, and this fact provides adequate guarantees for the donors that the consignments reach their proper destination.
These guarantees may seem unnecessary when representatives of the donor societies take part in the distribution of the supplies. As has already been pointed out, however, those representatives cannot be present at every distribution; furthermore, in the course of their work, they might depart from the intentions of the donors or even fail to appreciate the interests of the beneficiaries. It therefore seemed necessary to provide, even in the case of relief supplies distributed in this way, a safeguard in the form of receipts signed by the prisoners' representative and by the administrative authorities responsible for guarding the prisoners of war. It is clear from the present paragraph that the receipt signed by the prisoners' representative is the more important from the point of view of the donors, and it must be sent to the relief society concerned, not merely to the representative of the latter.
* (1) [(1) p.594] See below, pp. 750-751;
(2) [(1) p.595] See ' Report on the Work of the Conference of
Government Experts, ' pp. 254-255;
(3) [(2) p.595] Not, however without considerable opposition
from some delegations. See ' Final Record of the
Diplomatic Conference of Geneva of 1949, ' Vol. II-A, pp.
300-302; Vol. II-B, pp. 322-323;
(4) [(1) p.596] Article 78 of the 1929 Convention; see below,
(5) [(1) p.597] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 302 and
(6) [(1) p.599] The Resolution reads: "The XVIIth
International Red Cross Conference recommends that
national Societies contribute to the relief of enemy
prisoners of war and civilian internees, which should be
afforded on the basis of the most complete impartiality.";
(7) [(1) p.600] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War, ' Vol. III;
(8) [(1) p.601] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 300-302 and
341-342. see also above, p. 110, note 1;