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Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
[p.86] ARTICLE 8
-- PROTECTING POWERS
1. ' Historical background '
This provision is new in the present Convention. It is derived from Article 86
of the 1929 Convention relative to the treatment of prisoners of war, the contents of which were introduced in considerably strengthened form into all four Conventions of 1949.
The idea of employing a third Power to cooperate in the application of a treaty and to check its faithful observance is still sufficiently new to call for a brief summary of its history.
The Protecting Power is of course a State instructed by another State (known as the Power of Origin) to safeguard its,interests and those of its nationals in relation to a third State (known as the State of Residence). Protecting Powers are not a deliberate creation of international law. They are not so much an institution as an old practice, a time-honoured [p.87] practice (it is true) with fine achievements to its credit, but a practice which, though tending to a certain standardization, is far from being codified.
The origin of the concept Protecting Power goes back to the 16th century. Only the larger States then had Embassies. The nationals of medium-sized or small countries, when living abroad, were not protected in any way by their country of origin. That had certain disadvantages, especially where the national customs, laws or standards of civilization were very different from those of their home countries. Certain great Powers, from motives of prestige and influence as well as interest, claimed, and asserted by treaties concluded with the countries of residence, the right to take under the protection of their Embassies foreign nationals without national representation of their own.
Later, the initiative passed from the Protecting Power to the Power of Origin, which, as it became progressively more alive to its rights and to its duties towards its nationals abroad, began of its own initiative to have recourse to the good offices of a third Power. This practice spread, but was in no way uniform. The protection exercised might be of the most varied nature, ranging from temporary representation, limited to certain specified functions, to general representation of the interests of the Power of Origin in all countries where the Protecting Power maintained diplomatic or consular staff. Even the juridical position of the Protecting Power was differently regarded by different countries. Some countries considered themselves as deputizing for the Power of Origin, and negotiated officially in its name: others restricted themselves to authorizing their consuls in the State of Residence to lend their good offices to nationals of the Power of Origin.
Whatever the nature, duration or importance of the Protecting Power's position, it could never under modern law shield protected persons from the laws of the State of Residence. The most it could do was to ensure that the latter treated them in accordance with its laws and with international treaties and customs.
All this should be borne in mind: for the safeguarding of foreign interests in wartime is merely one case of protection among others. But there is this difference that the lapse of so many international treaties and the proclamation of so many laws of exception as a result of the war render this particular form of protection more essential, while they at the same time restrict its effectiveness. Indeed the role [p.88] of the Protecting Power in wartime has often been limited to the custody of the diplomatic and consular premises and archives of the Power of Origin, and to the forwarding of occasional documents.
Such, in brief, was the situation at the outbreak of the First World War in 1914. There was during the conflict a particular problem which drew the world's attention and led to the expansion of the idea of the Protecting Power -- the problem, namely, of prisoners of war. Never had there been so many prisoners. Never had such multitudes of captives remained so long in enemy hands. There were of course the Hague Regulations of 1907. (1) But the summary rules they contained on the treatment of prisoners of war were not always respected as they should be. The world was roused. The International Committee of the Red Cross, acting on past precedents, founded at the outset the Central Information Agency, which with its 7 million index cards secured an extensive measure of publicity. The Committee did more than this. Basing itself on the Hague Regulations, which authorized the distribution of relief, it sent missions to visit the camps.
If a purely private institution could in this way exercise unofficial but not ineffective control over the application of the Hague Regulations, why should not the Protecting Powers (one of whose tasks is to ensure the treatment in accordance with international customs and treaties of the persons they protect) be able to do the same? In actual fact the representatives of several Protecting Powers were able to accomplish a great deal under this heading, in spite of many difficulties, and in spite of the unpopularity of duties which tended to make the general public regard them as enemy agents. They too Visited the camps, and frequently obtained great improvements in the treatment of prisoners of war. They also intervened for the conclusion of special agreements between the adverse Parties with a view to making good deficiencies in the Hague Regulations.
The war had revealed the inadequacy of the Geneva Convention of 1906 and of the Hague Regulations. As soon as it was over, the International Committee of the Red Cross began to study, in the light of the experience gained, the revision of the former and the drawing up of a new Convention, a veritable prisoners of war code, to supplement the latter.
[p.89] The supervision which visits to camps by representatives of the International Committee of the Red Cross, and also by those of the Protecting Powers, implied, had proved so useful (albeit inadequate) that it was felt to be desirable to give it legal form in the future. Accordingly, in implementation of a Resolution of the Xth International Red Cross Conference, the International Committee included in its draft of the new Convention a provision enabling Governments in wartime to entrust the Committee with the application of the Convention. This meant nothing less than organized supervision -- official this time. Protecting Powers were not mentioned because, in theory at any rate, they already had power to exercise supervision under their terms of reference. Furthermore, as private representatives of the enemy Power, acting in its name and on its instructions, they did not necessarily have the same neutral and impartial character as an organization independent of any Government. But the two controls could exist simultaneously, the one in
the particular interests of the belligerents, the other in the general interest of humanity.
The Diplomatic Conference of 1929, however, after considering the drafts of the International Committee of the Red Cross, decided otherwise. Representatives of Governments which had assumed the role of Protecting Powers, asked for a clear-cut definition of their functions and powers. This attitude was only natural. It reflected the difficulties encountered by those Protecting Powers which had taken their duties seriously, and had tried to concern themselves with the condition of the prisoners of war. The system of Protecting Powers was governed by no international law: it was merely a practice which different countries regarded very differently. The extent of a Protecting Power's activities depended, therefore, not only on the instructions of the appointing Power, but also on its own acceptance, and above all on the Detaining Power's agreement -- and the latter could hardly be expected to look with favour upon the activities of the representatives of the enemy State's interests, or willingly grant them access to its camps.
The Diplomatic Conference of 1929 agreed, but its competence was limited: for the Protecting Power was the private representative of a third party -- a voluntary representative, moreover -- and it was not for the Convention to dictate duties which were carried out solely at the behest of the appointing Power. The most that could be done was to recognize the activities of the Protecting Power, provide them with a legal basis, [p.90] and require the Detaining Power to tolerate and even to facilitate them. After lengthy discussion and much redrafting, the text of Article 86
of the 1929 Convention relative to the treatment of prisoners of war was drawn up. (2) It reads as follows:
"The High Contracting Parties recognize that a guarantee of the regular application of the present Convention will be found in the possibility of collaboration between the Protecting Powers charged with the protection of the interests of the belligerents; in this connection, the Protecting Powers may, apart from their diplomatic personnel, appoint delegates from among their own nationals or the nationals of other neutral Powers. The appointment of these delegates shall be subject to the approval of the belligerent with whom they are to carry out their mission.
The representatives of the Protecting Power or their recognized delegates shall be authorized to proceed to any place, without exception, where prisoners of war are interned. They shall have access to all premises occupied by prisoners, and may hold conversation with prisoners, as a general rule without witnesses, either personally or through the intermediary of interpreters.
Belligerents shall facilitate as much as possible the task of the representatives or recognized delegates of the Protecting Power. The military authorities shall be informed of their visits.
Belligerents may mutually agree to allow persons of the prisoners' own nationality to participate in the tours of inspection."
As far as it went, the Article was excellent. It paid tribute to the work achieved by certain Protecting Powers in the past, while at the same time legalizing such work in the future. It eliminated many material or political obstacles in the path of the Protecting Powers, and mitigated the ill-will which they had so often encountered. Henceforward their representatives would be less likely to be suspected of sympathy or collaboration with the enemy. On the contrary, their intervention would be welcome.
The drawback to the Article was that it abandoned -- though it did not altogether exclude -- the idea of obligatory control by a neutral and independent agency.
It was not only Article 86
of the Prisoners of War Convention that mentioned the Protecting Powers. They were expressly referred to in a dozen special provisions, which did not, however, impose any duties on them, but merely gave them rights of inspection, or indicated that [p.91] they were to receive or forward documents -- tasks which naturally fell to them as representatives of third parties.
The Second World War afforded striking proof of the value of this Article. It is true there were neutral States which took a high view of their protecting mission. It is also true that various circumstances facilitated their task. In this war many belligerents, departing from former practice, chose one and the same Protecting Power to represent them in relation to ' all ' their enemies. Furthermore, the extension of the conflict greatly reduced the number of neutral Powers with the result that a great many Protecting Power mandates came to be concentrated in the hands of those remaining, and it became more and more common for these neutral Powers to find themselves responsible for representing the respective interests of two opposing Parties at one and the same time (3) This gave them additional authority, and incidentally altered their role; for once a Power represented the interests of two opposing belligerents, it became not so much the special representative of each of them, as the common agent of both, or a kind of umpire. This enabled it to bring
directly into play that powerful instrument, the argument of reciprocity, to obtain the improvements desired.
The value of the supervision envisaged and authorized by Article 86
of the Prisoners of War Convention had thus proved itself. But so far it had only benefited prisoners of war; and the existence of a Protecting Power was still necessary. Millions of prisoners had been without its help owing to non-recognition of their State of Origin by the Detaining Power, or had been suddenly deprived of it through circumstances. The outrageous nature of some of the violations committed where there had been no control modified the conception of what that control should be. It was no longer merely a question of recognizing a belligerent's right to supervise the application of the Convention by his enemy and of facilitating his task in so doing. The idea of the private interest of each of the belligerents was replaced by the conception of the overriding general interest of humanity, which demanded such control, no longer as a right, but as a duty.
The International Committee of the Red Cross, bearing all these considerations in mind, and encouraged by the opinions of the preliminary Red Cross Conference in 1946 and the Conference of Government [p.92] Experts in 1947, both of which it had convened (4), directed its attention to three points:
1. The extension of the principle of supervision by the Protecting Power
to all the Conventions.
2. Arrangements for the replacement of Protecting Powers no longer able
3. Making supervision obligatory.
The draft resulting from the study of these questions, as approved and completed by the XVIIth International Red Cross Conference at Stockholm, served as a basis for the work of the Diplomatic Conference of 1949. It read as follows:
"The present Convention shall be applied with the co-operation and under the supervision of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict. To this effect, the Protecting Powers may appoint, apart from their diplomatic staff, delegates from amongst their own nationals, or the nationals of other neutral Powers. The said delegates shall be subject to the approval of the Power in whose territory they are to carry out their duties. The said Power may only refuse its approval if serious grounds are adduced.
The Parties to the conflict shall facilitate to the greatest extent possible the task of the representatives or delegates of the Protecting Powers."
It will be seen that this draft reproduced the essential features of Article 86
of the Prisoners of War Convention of 1929 -- with the exception of the provisions dealing with visits to the camps, which, as they only concern prisoners of war and civilian internees, are dealt with separately in the Conventions protecting these two categories of war victims. But it increased the scope of the 1929 text:
(1) by embodying it in all four Conventions;
(2) by replacing its optional form ("possibility of collaboration
between the Protecting Powers"), by an imperative form ("The
present Convention ' shall be ' applied ' with the co-operation
and under the supervision ' of the Protecting Powers...");
(3) by adding a separate draft Article for the obligatory replacement
of Protecting Powers which ceased to function. (5)
2. ' Discussions at the Diplomatic Conference of 1949 '
Surprisingly enough, the Stockholm draft gave rise to hardly any objections at the Diplomatic Conference. (6) The new form proposed: "The Convention ' shall be ' applied with the co-operation and under the supervision..." was not so much as discussed, the necessity for increased supervision being evident to everyone. The English translation of the word "contrôle" formed the subject of the longest discussion both in the Joint Committee and in its Special Committee. As previously at Stockholm, the English-speaking delegations were all, without exception, opposed to the adoption of the English word "control" on the ground that it was by no means an exact translation of "contrôle", being much stronger and implying domination. It must, however, be admitted that the French word "contrôle" is being increasingly used with the English meaning. It is not uncommon to hear that a company controls ("contrôle") a business when it possesses the major part of its shares and consequently directs it, or that a regiment controls ("contrôle") a crossing of which it has taken
possession. Four translations were in turn suggested, and discussed at length, before agreement was finally reached on the word "scrutiny". The discussion was not purely academic: for it enabled the Conference to define precisely the powers which it intended to confer upon the Protecting Power. (7)
The need for increased control being once admitted, there was no further difficulty. No one thought of contesting the Protecting Power's right to appoint additional staff. On the contrary, as the Protecting Power was no longer merely authorized but instructed to exercise supervision, the importance of its disposing of a sufficiently large and qualified staff was admittedly increased. It was to this end that the Conference adopted a new proposal which placed the consular staff [p.94] of the Protecting Power on the same footing as its diplomatic staff, the draft having only referred to the latter. On the other hand, the Conference could not bring itself to adopt the last sentence of the first paragraph ("The said Power may only refuse its approval if serious grounds are adduced"), which the Stockholm Conference had added, in a burst of hasty generosity, to the International Committee's original draft. Most delegations took the view that a Protecting Power was not entitled to impose anyone it pleased on a belligerent State. In normal
times -- and with even more reason in wartime -- a Government can withhold its consent or ' exeguatur ' from diplomats or consuls without being obliged to state its reasons for doing so. It would hardly be understood if officials appointed for temporary and auxiliary services were given a privileged status in this respect.
The second paragraph of the Stockholm draft, which follows logically from the first, was adopted without discussion.
A very satisfactory Article was thus evolved. Unfortunately, it ran the risk of being considerably weakened by the following additional amendment:
"With regard to their co-operation in the application of the Conventions, and the supervision of this application, the activity of the Protecting Powers or of their delegates may not infringe the sovereignty of the State or be in opposition to State security or military requirements."
The purpose of this amendment was to prevent a Power from being accused of violating the Convention on account if its having temporarily restricted the activities of the Protecting Power in exceptional cases for reasons of military requirements or security. (8) The amendment was keenly opposed. Some delegates wished to reject it; others felt that although it might temporarily be necessary to restrict the activities of the Protecting Power, it would be better for the restriction to apply to a particular provision rather than to the general Article. A compromise formula was then proposed (9), and was finally adopted as paragraph 3, after a slight but important alteration had been made, the words "the limits of their mission ' as defined in ' the present Convention" being replaced [p.95] by a more general form, "their mission ' under ' the present Convention". It was pointed out that the Convention did not, strictly speaking, define the mission of the Protecting Powers. (10)
PARAGRAPH 1 -- GENERAL ROLE OF THE PROTECTING POWERS
A. ' First sentence: "The present Convention shall be applied with the co-operation...". ' -- This is a command. The English text, which is authentic equally with the French, makes this absolutely clear. (11) It is no longer merely a case of collaboration being possible and of supervision being authorized, as it was under the 1929 Prisoners of War Convention.
This command is addressed to the Parties to the conflict in the first place, since the responsibility for application is theirs. They are ordered to accept the co-operation of the Protecting Power. If necessary, they must demand it. This is fully established by the whole development of the idea and by the clear intention, which was constantly manifested during the discussions, to increase the degree of supervision and make it obligatory under the Convention; this tendency is carried to the point of making provision, under Article 10
below, for the case of the Protecting Power ceasing to function.
But the command is also addressed to the Protecting Power, if the latter is party to the Convention. The Protecting Power is not obliged to wait until the Party to the conflict, in relation to whom it safeguards the interests of the Power which appointed it, demands its co-operation; it must take the first step. The Protecting Power is obliged to participate, so far as it is concerned, in the application of a Convention by which it is bound.
What does the role of a Protecting Power involve, and what should be understood by "cooperation" and "scrutiny"?
It should be noted first of all that it is not only Article 8 that mentions the intervention of the Protecting Power. The following five Articles make express provision for it:
[p.96] (a) Among the general provisions common to all four Conventions:
: loan of good offices in cases of disagreement as to the
application or interpretation of the Conventions;
: communication of translations of the Conventions during
(b) Among the provisions peculiar to the First Convention:
: forwarding of information about wounded, sick and dead
Article 17, paragraph 2
: (referring to Article 16
: loan of good offices for the creation of hospital zones
It may also be noted in passing that the Second Convention only contains one provision of its own in which the Protecting Power is mentioned, whereas the Third and Fourth Conventions contain respectively 27
The following question then arises: do the cooperation and the scrutiny laid down in principle in Article 8 consist solely of the activities referred to in Articles 11
, or is the Protecting Power assigned a general mission in Article 8 giving it the right -- and the duty -- to intervene in cases other than these particular ones?
The reply to this question emerges clearly enough from the general desire, expressed during the discussions at the Diplomatic Conference, to establish a genuine control organization, and to give it extensive powers. The only restrictions -- and they are temporary and exceptional -- imposed on the activities of a Protecting Power are those which can be justified by imperative military necessities. The reason why this possibility of restriction has been maintained in the First and Second Conventions, and left out of the Third and Fourth, which deal with prisoners of war and civilians, is that the first two Conventions are mainly intended to be applied "on the battlefield". It is therefore understandable that the case of imperative military necessities should be the subject of a reservation (12). But none of the provisions just mentioned involves activities endangering military operations. Consequently, the restriction at the end of the Article must refer to activities [p.97] of the Protecting Power other than the loan of good offices mentioned in Articles 11
and the role of a mere forwarding agent in Articles 16
. Furthermore, not one of these four provisions entails activities which come under the heading of "scrutiny". They are concerned with "cooperation". If a Protecting Power's functions were merely restricted to certain Articles, the expression in Article 8, "under the scrutiny of the Protecting Powers", would be meaningless. As has been seen, the Conference intentionally altered the wording of the third paragraph. The words "their mission ' as defined ' in the present Convention have been replaced by the words "their mission ' under ' the present Convention" for the simple reason that the mission of the Protecting Powers is not clearly defined or delimited in these Articles alone. (13)
It is therefore clear that the first sentence of Article 8 is not inserted merely for purposes of style; it has its own value. It entitles a Protecting Power to undertake any intervention or initiative which may enable it to check the application of any provision of the Convention, or help to improve its application. All the occasions upon which a Protecting Power would have to intervene cannot be envisaged here, nor can the conditions under which such interventions take place. They will be determined by the circumstances of the conflict and the means at the disposal of the Protecting Power. As has already been pointed out, the Protecting Power's duties under the First Convention will be much less onerous than under the Third and Fourth Conventions. But there are some Articles which, although they do not mention the Protecting Power by name, are particularly liable to lead to intervention by the latter. They include the following:
: visits to hospitals and other medical establishments
to supervise the protection, treatment and care given
to the wounded and sick.
: supervision of the prescriptions regarding burial of the
dead. Cooperation, when necessary, in the observance of
particular rites. Collaboration with the Graves Registration
Service with a view to identification. [p.98] Article 28
: supervision of the condition and treatment of retained
personnel. Cooperation in arrangements for the relief of such
: supervision and cooperation in arrangements for the
repatriation of medical and religious personnel.
: checking the utilization of protected property.
: cooperation in the institution of enquiries concerning
Others could be mentioned.
B. ' Second and third sentences: Executive agents. ' -- All members of the diplomatic and consular staff of the Protecting Power are ipso facto entitled, in virtue of their capacity as official representatives of their Government, to engage in the activities arising out of the Convention. This rule covers, not only members of the staff who are in service when hostilities break out, but also those who are sent to relieve or assist them. It makes no difference whether they are assigned solely to the work of the Protecting Power as such, or whether they carry out other diplomatic or consular duties as well. No further formalities other than those entailed by their diplomatic or consular position in normal times ' (agrément, exequatur) ' are required. Special consent is only required for auxiliary officials, specially appointed by the Protecting Power, who do not have diplomatic or consular status. More often than not these will be persons recruited, in the country where the Protecting Power has to act, from among its own nationals or from those
of neutral countries. It is only natural, therefore, that the State of Residence should be entitled to refuse its consent, in particular when it has reason to fear that these auxiliary officials, knowing the country and perhaps having connections there, may take advantage of the facilities of movement and contact which their duties afford to engage in activities that have but little connection with the application of the Convention and may be harmful to the security of the State.
PARAGRAPH 2 -- FACILITIES
This provision, which is also taken from Article 86
of the 1929 Convention on prisoners of war, calls for little comment. In Article 86
[p.99] it only concerned camp visits. In Article 8 it is quite general, and applies to ' all ' the activities of the Protecting Power.
PARAGRAPH 3 -- LIMITS
This paragraph is a compromise formula. It was adopted to give partial satisfaction to the supporters of an amendment which, in the opinion of the majority, was too restrictive and would indeed make it possible to paralyse all activity by the Protecting Power. (14) While trying to give the fullest possible scope to the needs of humanity, the delegates at the Conference could not, in their capacity as representatives of Governments, completely overlook the requirements of national sovereignty. In the paragraph we accordingly find a reminder of the existence of this national sovereignty, which has, incidentally, been seriously encroached upon in many of the provisions of the different Geneva Conventions, beginning with the original Convention of 1864 -- not to mention all the other international Conventions or institutions which tend more and more to restrict it in favour of a higher interest.
The first sentence, with its appendix "they shall, in particular, take account...", makes no provision for sanctions. What happens if the agents of the Protecting Power exceed their mission, and, while carrying out their duties, engage in acts harmful to the security of the State? The text is silent on this point, so that the situation is the same as if the provision did not exist. Even so, a Government which had good reason to complain of the activities of one of the Protecting Power's agents, would not be without a remedy. It could make the necessary representations; it could ask for the recall of the offending agent or designate him as a ' persona non grata; ' it could refuse him the necessary facilities.
In these circumstances one cannot but wonder whether, with such a provision ready to hand, a belligerent Power will not be tempted to resort to it lightly and so, in one way or another, restrict the activities of the Protecting Power, even where such activities are purely humanitarian. As, however, the Conference thought fit to adopt this provision -- not so much because it was necessary as because it was a means of [p.100] combating an amendment which was still more restrictive -- let us try to see what positive elements it has to offer.
Without sanctions, it serves none the less as a solemn reminder to the Protecting Power of the nature of its mission, which will in future take the form of co-operation with the belligerent Power as the party primarily responsible for the application of the Convention. The Protecting Power, as the authorized agent of the enemy, is no longer merely entitled to exercise the right of supervision of the latter as co-contracting party. Not only ' must ' the Protecting Power exercise this right of supervision: it must also ' co-operate ' in applying the Convention, the whole purpose of which is to ensure respect for a higher principle -- the principle, namely, that the wounded and sick must be collected and cared for, without distinction. They have the right to be protected and respected for the sole reason that they are wounded and sick. Thus, when instructing its agents, the Protecting Power should not forget to bring this provision to their attention. It should remind them that, as its representatives under the Convention, all their efforts
should be directed exclusively towards the achievement of the above purpose, and that their task is too noble a one -- one which is too essentially necessary to mankind -- to admit of the slightest irregularity which, by throwing suspicion on the officials in question, and perhaps on their colleagues and Government, might compromise or even simply restrict the work; for that would be equivalent to increasing the suffering due to the war.
The last sentence, which gave rise to keen opposition, was omitted in the Third and Fourth Conventions. The reason for including it here was, as we have seen above, that the First Convention mainly applies to the battlefield or its immediate surroundings. Behind the lines, the wounded and sick in enemy territory are protected by the Convention relative to the treatment of prisoners of war. It must be admitted that at the front, and sometimes even behind the lines, a belligerent Power has in imperative interest in taking exceptionally strict measures of prohibition, in order to keep military operations secret. There are occasions when the representative of a Protecting Power might, in all innocence and ignorance, overhear and circulate some military secret, which by changing the course of the battle might increase the number of its victims. But the belligerent Powers must never lose sight of the purpose of the activities of the Protecting Power as [p.101] laid down in the Conventions -- namely, the protection of the wounded and sick -- a
purpose so lofty that even war, since 1864, has had to respect it. They must therefore avoid curbing these activities by invoking "imperative military necessities" without due consideration or merely for convenience' sake.
Who is to determine the validity of the reasons adduced by the belligerent Power to justify exceptional restriction? Will it be the belligerent himself? But he would be judging his own case. Only the Protecting Power as supervising agent can decide if military necessities are sufficiently imperative; and this is precisely what it would, in such a case, be debarred from doing. It will only be possible to show after the event whether or not the restriction was justified.
The provision in question should not be considered as authorizing the restriction of the activities of the Protecting Power, but rather, if one may say so, as a restriction of the possibilities of limiting them. It indicates -- and that is the essential point -- that in principle the activities of the Protecting Power cannot be reduced.
A Protecting Power's activities can only therefore be restricted, if there are reasons for so doing, exceptionally, temporarily, and partially. The rule is that a Protecting Power's activities must not be restricted, and only ' imperative ' military necessities can modify that rule; restrictions may therefore apply only for the duration of the military necessities which justify them, and they may, moreover, only apply to those of the Protecting Power's activities which come up against these necessities. The belligerent Power may temporarily prohibit agents of the Protecting Power, for example, from inspecting the medical establishments in a particular area. But it could not make a pretext of military necessities, however imperative, for suspending the whole of the Protecting Power's activities under the Conventions.
As it stands Article 8 is not perfect, far from it. But we have to consider the huge advance which it represents in international humanitarian law. We have to realize that, to achieve this much, the diplomats assembled in Geneva had to cope with divergent opinions; they had to reconcile the claims of the sovereignty of their respective countries with the claims of humanity; and they had to harmonize two opposed [p.102] conceptions of the role of the Protecting Power, viewed by some as their agent (of whom one demands the maximum), by others as the agent of the enemy (to whom one accords the minimum). When we remember, finally, that the legal relations between the Protecting Power and the Power of Origin on the one hand, and then again between the Protecting Power and the State of Residence, are of the most varied nature, it must surely be admitted that this Article is on the whole satisfactory.
Article 8 presupposes the existence of a Protecting Power appointed by the Power of Origin. It does not make this appointment obligatory, and in no way modifies the status of the Protecting Power as determined by international usage. The Protecting Power therefore remains the special representative of one of the Parties to the conflict -- first of all for the exercise of political, administrative or other functions arising either out of its appointment or out of international usage, and secondly for the application of the Convention. But in the latter case it also has a higher mission, automatically entrusted to it, by reason of its duties, by the whole body of the Contracting Parties, including the Power in whose territory it carries out its task.
By making a duty out of what formerly was merely the optional exercise of a right, Article 8 reinforces the supervision of a sane application of the Convention, and consequently, increases the latter's efficacy. It does more than that: it calls in a third Power, a neutral Power and ' pro tanto ' immune from the exacerbation of opposed opinions which war provokes, so often leading to false appreciation of the most firmly established moral values, and invokes the aid of this third Power in respecting those fundamental principles.
If the Protecting Power is not a party to the Convention, this mission under the Convention is only obligatory in so far as the Protecting Power explicitly accepts it. If, on the other hand, the Protecting Power is bound by the Convention, the mission is obligatory from the mere fact of the State in question having accepted the role of Protecting Power.
of the Convention reads as follows: "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." This engagement applies just as much to a Protecting Power which is a party to the Convention as it does to the belligerent Powers. For just as it assisted in the conclusion of the Convention, so it must assist in its application, its responsibility being [p.103] measured by the extent of the demands made on it. It has no doubt less responsibility than the Parties to the conflict, owing to its inability to act except through the intermediary of its representatives in foreign countries, its means being thus very limited as compared with those which the belligerent Powers have at their disposal for meeting their obligations. But within the limits of its means the Protecting Power's responsibility exists. It is right that this should be so. It illustrates the joint responsibility of nations in the defence of the protective barrier which they have raised against war, and if necessary
against their own shortcomings, by signing the Geneva Conventions.
* (1) [(1) p.88] ' Regulations respecting the Laws and Customs
of War on Land. ' Annex to the Fourth Hague Convention of
18 October 1907;
(2) [(1) p.90] See ' Actes de la Conférence diplomatique de
1929, ' pages 512 ff.;
(3) [(1) p.91] At one time Switzerland alone was the
Protecting Power of no fewer than 35 belligerent
(4) [(1) p.92] See ' Report on the Work of the Preliminary
Conference of National Red Cross Societies for the Study
of the Conventions and of various Problems relative to the
Red Cross ' (Geneva, July 26-August 3, 1946), Geneva,
1947; and ' Report on the Work of the Conference of
Government Experts for the Study of the Conventions for
the Protection of War Victims ' (Geneva, April 14-26,
1947), Geneva, 1947;
(5) [(1) p.93] See below, on Article 10, pages 112 ff.;
(6) [(2) p.93] In the Stockholm draft the provision under
study figured as Article 6 (Article 7 in the Second, Third
and Fourth Conventions). It was therefore discussed by the
Diplomatic Conference of Geneva as Article 6/7/7/7 before
becoming Article 8/8/8/9 in the final text;
(7) [(3) p.93] See ' Final Record of the Diplomatic Conference
of Geneva, 1949, ' Vol. II-B, on Article 6/7/7/7, pages
19-20 and 57;
(8) [(1) p.94] See ' Final Record of the Diplomatic Conference
of Geneva, 1949, ' Vol. II-B, on Article 6/7/7/7/, page
(9) [(2) p.94] Ibid. page 74;
(10) [(1) p.95] See ' Final Record of the Diplomatic Conference
of Geneva, 1949, ' Vol. II-B, on Article 6/7/7/7, page 28;
(11) [(2) p.95] The French text reads: "La Convention sera
appliquée avec le concours...". The words "shall be" in
the English text show that the future imperative has been
used and not the simple future;
(12) [(1) p.96] See ' Final Record of the Diplomatic Conference
of Geneva, 1949, ' Vol. II-B, on Article 6/7/7/7, pages
(13) [(1) p.97] See above, page 94;
(14) [(1) p.99] See above, page 94;
See the Commentary of 2016
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