(a) If the civilian population of any territory under the control of a Belligerent Party is not adequately provided with food, medical supplies, clothing, bedding, means of shelter or other supplies essential to its survival, relief actions which are humanitarian and impartial in character — and conducted without adverse distinction — should be undertaken, subject to agreement of the Parties concerned. Such agreement cannot be withheld in occupied territories.
(b) Relief actions may be undertaken either by States or by impartial humanitarian organizations such as the International Committee of the Red Cross.
- Rule 100 (a) is based on Art. 23, Art. 55 and Art. 59 of GC/IV as well as on Art. 69 and Art. 70 (1) of AP/I. See also Rule 19 (c).
- The expression “any territory under the control of a Belligerent Party” covers primarily the national territory of a State involved in an international armed conflict, but also those territories under the effective control or authority of a Belligerent Party. Rule 100 (a) thereby covers relief actions intended both for occupied territories and for other territories.
- The list of items essential for the survival of the civilian population (“food, medical supplies, clothing, bedding, means of shelter”) in Rule 100 (a) is based on the first paragraph of Art. 55 of GC/IV and on Art. 69 (1) of AP/I. However, the list is not exhaustive (note the words: “or other supplies essential to survival”). It all depends on the circumstances: heating oil, e.g., may be an essential item in a cold region. Among other essential items may be objects necessary for religious worship, mentioned specifically in Art. 69 (1) of AP/I.
- In occupied territories, there is an affirmative obligation on the Occupying Power to accept relief actions if it is not in a position to ensure the adequate provision of supplies essential to the survival of the civil-ian population itself (see Art. 59 of GC/IV).
- In non-occupied territories, humanitarian relief actions are “subject to the agreement of the Parties concerned”. The insistence on agreement indicates that consent by the relevant Belligerent Party is essential. Opinions in the Group of Experts were divided as to whether the absence of agreement implies that there is no obligation to enable humanitarian aid from the outside to proceed. Hence, the use of the term “should” in the text. The majority of the Group of Experts were of the opinion that agreement by a Belligerent Party ought not to be withheld except for valid reasons (e.g., objective security risks for relief personnel or reasonable grounds to suspect that the aid is not humanitarian or impartial in character) and as an exceptional measure. Therefore, there may be extreme circumstances of privation in which agreement by a Belligerent Part to humanitarian aid from abroad cannot be withheld in view of the prohibition of starvation of civilians as a method of warfare.
- Rule 100 (a) covers all “Parties concerned”. These Parties include not only the Belligerent Parties, but also Neutrals from which relief is sent or through whose territory the relief consignments pass.
- The operation of relief personnel “shall be subject to the approval of the Party in whose territory they will carry out their duties” (see Art. 71 (1) of AP/I).
- Rule 100 (a) refers to “relief consignments” which are (i) essential to the survival of the civilian population; (ii) humanitarian and impartial in character; and (iii) conducted without adverse distinction.
- Humanitarian relief actions must be aimed at bringing relief to victims, i.e. the civilian population lack-ing essential supplies. They must also be impartial in character and conducted without adverse distinction. Individuals must be assisted according to their needs only (on the basis of the urgency and severity of the case). At the same time, particularly vulnerable segments of the civilian population (such as children, expectant mothers and persons with disabilities) may get a preferential treatment.
- Rule 100 (a) applies also in non-international armed conflict. As the concept of occupation does not exist in non-international armed conflict, the final sentence of Rule 100 (a), however, does not apply. As in international armed conflict, the agreement for such humanitarian relief may not be withheld on arbitrary grounds (see paragraph 5 of the Commentary on Rule 100 (a)).
- Art. 23 of GC/IV, see fn. 761.
- Art. 55 of GC/IV: “To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other Arts. if the resources of the occupied territory are inadequate.”
- Art. 59 of GC/IV: “If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal. Such schemes, which may be undertaken either by States or by impartial humanitarian organizations such as the ICRC, shall consist, in particular, of the Rule of consignments of foodstuffs, medical supplies and clothing. All Contracting Parties shall permit the free passage of these consignments and shall guarantee their protection.”
- Art. 69 of AP/I: “(1) In addition to the duties specified in Article 55 of the Fourth Convention concerning food and medical supplies, the Occupying Power shall, to the fullest extent of the means available to it and without any adverse distinction, also ensure the Rule of clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory and objects necessary for religious worship. (2) Relief actions for the benefit of the civilian population of occupied territories are governed by Articles 59, 60, 61, 62, 108, 109, 110 and 111 of the Fourth Convention, and by Article 71 of this Protocol, and shall be implemented without delay.”
- Art. 70 (1) of AP/I: “If the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with the supplies mentioned in Art. 69, relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions. Offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts. In the distribution of relief consignments, priority shall be given to those per-sons, such as children, expectant mothers, maternity cases and nursing mothers, who, under the Fourth Convention or under this Protocol, are to be accorded privileged treatment or special protection.”
- The difference between occupied territories and non-occupied territories is based on the first paragraph of Art. 59 of GC/IV, see fn. 575.
- First paragraph of Art. 55 of GC/IV, see fn. 574.
- Art. 69 (1) of AP/I, see fn. 576.
- Art. 59 of GC/IV, see fn. 575.
- Para. 47.26 of the Commentary on the SRM/ACS: “[i]t is likely that it would be unlawful to withhold agree-ment in the case of shipments of objects indispensable for the survival of the population.”
- Art. 71 (1) of AP/I: “Where necessary, relief personnel may form part of the assistance provided in any relief action, in particular for the transportation and distribution of relief consignments; the participation of such personnel shall be subject to the approval of the Party in whose territory they will carry out their duties.”
- Art. 18 (2) of AP/II: “If the civilian population is suffering undue hardship owing to a lack of the supplies es-sential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be un-dertaken subject to the consent of the High Contracting Party concerned.”
- Rule 100 (b) is based on the second paragraph of Art. 59 of GC/IV.
- Whereas all States may, in principle, undertake relief actions, only Neutrals will in practice be capable of providing the essential guarantees of impartiality.
- Only impartial humanitarian organizations qualify for the purposes of Rule 100 (b). The ICRC is mentioned due to its special qualifications and as an example of an impartial humanitarian organization.
- Rule 100 (b) applies also in non-international armed conflict.
- Second Para. of Art. 59 of GC/IV: “Such schemes, which may be undertaken either by States or by impartial humanitarian organizations such as the International Committee of the Red Cross, shall consist, in particular, of the provision of consignments of foodstuffs, medical supplies and clothing.”
- ICRC Commentary on GC/IV, pertaining to the second paragraph of Art. 59 at page 321: “This form of words [“impartial humanitarian organization”] … is general enough to cover any institutions or organizations capable of acting effectively and worthy of trust. The International Committee is mentioned both on account of its own special qualifications and as an example of a humanitarian organization whose impartiality is assured.”
As regards the expression “relief actions which are humanitarian and impartial in character”, used in Art. 70 (1) of AP/I, Para. 2804 of the ICRC Commentary on AP/I, states: “obviously all this also applies to actions undertaken by im-partial humanitarian organizations, such as the ICRC.”