Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 10 : Substitutes for Protecting Powers
Text of the provision*
(1) The High Contracting Parties may at any time agree to entrust to an organization which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present Convention.
(2) When wounded and sick, or medical personnel and chaplains do not benefit or cease to benefit, no matter for what reason, by the activities of a Protecting Power or of an organization provided for in the first paragraph above, the Detaining Power shall request a neutral State, or such an organization, to undertake the functions performed under the present Convention by a Protecting Power designated by the Parties to a conflict.
(3) If protection cannot be arranged accordingly, the Detaining Power shall request or shall accept, subject to the provisions of this Article, the offer of the services of a humanitarian organization, such as the International Committee of the Red Cross, to assume the humanitarian functions performed by Protecting Powers under the present Convention.
(4) Any neutral Power, or any organization invited by the Power concerned or offering itself for these purposes, shall be required to act with a sense of responsibility towards the Party to the conflict on which persons protected by the present Convention depend, and shall be required to furnish sufficient assurances that it is in a position to undertake the appropriate functions and to discharge them impartially.
(5) No derogation from the preceding provisions shall be made by special agreements between Powers one of which is restricted, even temporarily, in its freedom to negotiate with the other Power or its allies by reason of military events, more particularly where the whole, or a substantial part, of the territory of the said Power is occupied.
(6) Whenever in the present Convention mention is made of a Protecting Power, such mention applies to substitute organizations in the sense of the present Article.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
(a) High Contracting Parties for which a reservation is in force at the time of publication: Albania; Democratic People’s Republic of Korea; Guinea-Bissau; People’s Republic of China; Portugal; The former Yugoslav Republic of Macedonia; Russian Federation; and Viet Nam. For the text and an analysis of these reservations, see section E.
(b) High Contracting Parties which previously had a reservation in force: Belarus (withdrawn 7 August 2001); Bulgaria (withdrawn 9 May 1994); Czechoslovakia (withdrawn 27 September 2001 by the Czech Republic and 5 June 2000 by Slovakia); German Democratic Republic (until unification with the Federal Republic of Germany); Hungary (withdrawn 31 May 2000); Poland (withdrawn 22 September 2004); Romania (withdrawn 24 June 2002); Ukraine (withdrawn 30 June 2006); and Yugoslavia (declaration of succession to the former Socialist Federal Republic of Yugoslavia deposited by the Federal Republic of Yugoslavia ‘without any reservation’ on 16 October 2001).**
** Country names at the time the reservation was made.
Contents

A. Introduction
1181  Article 10 regulates the conditions under which a substitute for a Protecting Power may be appointed, which organizations may qualify as such, and how and for what purpose they should function. This provision is common to the four Conventions.[1]
1182  The Diplomatic Conference of 1949 made the Protecting Powers the lynchpin of the system for monitoring compliance with the Geneva Conventions[2] and set out a procedure for appointing a substitute in the absence of a Protecting Power.
1183  The Second World War had provided stark proof of the importance of the task – entrusted to the Protecting Powers – of scrutinizing the implementation of humanitarian rules. However, it had also shown that, even in situations where the 1929 Geneva Convention on Prisoners of War was applicable, captives could be denied the help of a Protecting Power.
1184  The 1949 Diplomatic Conference therefore envisaged a procedure in the event that protected persons were not, or no longer, able to benefit from that regime. In order to understand the logic underpinning the Geneva Conventions in this regard, it is important to emphasize that the drafters of the Geneva Conventions were familiar with the scenario in which, when a Protecting Power can no longer fulfil its mandate, for example when it is itself drawn into the conflict, that Power would seek to appoint a new Protecting Power. The Power of Origin asks another neutral State to act as Protecting Power; that State, if it consents, asks for the approval of the State (known as the host or receiving State) where it is to carry out the Protecting Power mandate. Once that approval is given, the new Protecting Power takes up office. It then has all the rights and duties of a Protecting Power and cannot be called a substitute. These were the circumstances in which Switzerland took over from the United States as a Protecting Power in 1917 and 1941.[3]
1185  The debates leading to the adoption of common Article 10 (Article 11 in the Fourth Convention) addressed the completely different situation arising when, for whatever reason, the usual procedure cannot be followed, for example because the Power of Origin ceases to exist or because the international status of one of the Parties to the conflict is disputed or because there are no neutral States left. These were, in the minds of the drafters of the Geneva Conventions, the circumstances for which a substitution procedure was introduced.
1186  Establishing procedures for substituting for Protecting Powers was high on the agenda of the Diplomatic Conference of 1974–1977. This resulted in paragraphs 4 and 7 of Article 5 of Additional Protocol I, which complement common Article 10 of the 1949 Conventions.[4]
1187  Although it is not specified in Article 10, it is clear that the substitution possibilities it sets out, like the Protecting Power mechanism it is intended to replace, are foreseen only to apply in international armed conflict. Neither common Article 3 nor Additional Protocol II make any mention of a role for a substitute for Protecting Powers in non-international armed conflict. However, nothing precludes the Parties to such a conflict from concluding a special agreement to put in place a similar system, akin to that of the substitutes of Protecting Powers.[5]
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B. Historical background
1. Historical precedents
1188  Two particularly significant precedents should be mentioned: the mission to protect Russian prisoners of war in Germany after the First World War; and the ICRC’s activities during the Second World War to protect members of the Free French Forces in captivity in Germany and German prisoners held by the Free French Forces.[6]
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a. Practice after the First World War
1189  Shortly after the signing of the Armistice agreement of 11 November 1918, which put an end to the First World War, the victorious powers imposed an Inter-Allied Commission on Germany to control the situation of Russian prisoners of war. As it was suspected that most of these prisoners supported the Bolsheviks and were likely, if repatriated, to swell the ranks of the Red Army, the Inter-Allied Commission forbade repatriations to Soviet Russia. The Commission was dissolved in February 1920, shortly after the signing of the Treaty of Versailles; Germany regained its freedom of action but was left with an extremely volatile situation on its hands. Disheartened by captivity and seeing no prospect of it ending, disgusted by broken promises and convinced that the Allies would prevent their return home, the Russian prisoners were on the brink of revolt. Meanwhile tens of thousands of German, Austrian and Hungarian prisoners of war were trapped in Russia, the Soviet Government refusing to repatriate them until Germany allowed the Russian prisoners to return. The German Government therefore sought to appoint a neutral body to assist in supervising the prisoner-of-war camps and negotiating exchanges of German and Russian prisoners of war, a body that could guarantee that Russian prisoners would all be repatriated in accordance with their own free will, and with whose help any disputes between Russian prisoners of war and the camp authorities could be settled. In short, it envisaged an intermediary role between the Detaining Power, the Power of Origin and the States of transit, to be combined with a mandate to inspect prisoner-of-war camps and mediate between the captives and the detaining authority.
1190  These tasks obviously fell within the remit of a Protecting Power, but no State at that time had diplomatic relations with the Soviet regime. The German Government therefore requested the services of the ICRC, which sent to Germany a delegation that soon numbered about 20 delegates and interpreters. This extensive deployment made it possible to carry out regular inspections of the main prisoner-of-war camps. Repatriation began in May 1920 and went on until July 1921, after which the ICRC mission was phased out.[7]
1191  Although the term ‘substitute for a Protecting Power’ does not appear in the documents of the time, there can be little doubt that, circumstances having prevented the appointment of such a Power, the ICRC acted as the de facto Protecting Power of Russian prisoners of war in Germany.
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b. Practice during the Second World War
1192  In the Second World War, too, many prisoners of war were deprived of the help of a Protecting Power even where the 1929 Geneva Convention on Prisoners of War was applicable.[8] Those needing legal assistance were the worst affected, for under Articles 60-67 of the 1929 Convention it was the responsibility of the Protecting Power to see to it that prisoners of war prosecuted by the Detaining Power enjoyed the legal safeguards to which they were entitled. The 1929 Convention did not recognize the ICRC as competent to act in such matters, but whenever prisoners of war received no help from a Protecting Power the ICRC did its utmost to make up for this deficiency.
1193  The question of whether the ICRC should exercise the functions normally assigned to Protecting Powers arose most acutely in respect of relations between Germany and the Free French Forces. In the eyes of the Reich Government, neither the French Committee of National Liberation in Algiers, nor the Provisional Government of the French Republic that succeeded it once Paris was liberated, had any legal existence, and only the Vichy regime was qualified to represent French interests.[9] Subsequently, the agreement of 16 November 1940 between the Third Reich and the Vichy authorities established an illusory national monitoring system for the welfare of French prisoners in Germany – the Scapini mission – in the place of a Protecting Power. This proved utterly ineffective.[10]
1194  It was not long before this position recoiled upon those who had formulated it. When the Axis forces in North Africa surrendered in May 1943, the Free French Forces took thousands of prisoners who did not benefit from the activity of a Protecting Power.[11] The authorities in Algiers suggested that Spain – which until the armistice of June 1940 had been charged with representing German and Italian interests in France – should act as Protecting Power for these prisoners, provided that Germany and Italy agreed to the appointment of a Protecting Power to look after French prisoners. The German Government rejected the proposal and the Italian Government failed to reply. However, in November 1943 the German Government asked the ICRC to provide legal assistance to German prisoners of war held by the French forces in North Africa. On humanitarian grounds, ‘and in view of the fact that these PW [prisoners of war] had no Protecting Power’, the ICRC gave its consent, while stressing ‘that it could not assume any official mandate and remained sole judge of its own actions’. Having made arrangements with the authorities in Algiers to enable it to carry out this mission, the ICRC requested Berlin to make similar arrangements for offering equivalent legal assistance to French prisoners on trial in German courts. Negotiations continued until April 1945, but no agreement was reached enabling the ICRC to give legal protection to the prisoners of war on both sides.[12]
1195  The ICRC nevertheless performed many of the tasks usually assigned to Protecting Powers. In November 1944, for example, the Provisional Government of the French Republic asked the ICRC to notify the Reich Government and the authorities of the ‘Italian Social Republic’ of the commissioning of the hospital ship Canada. With the backing of the French authorities, the ICRC was able to give substantial legal assistance to German prisoners of war being tried in French courts. In February 1944 the Spanish Consul in Algiers informed the ICRC delegation there that he would in future hand over to it all original documents received from the French authorities, since the German Government had notified the Spanish Government that it had ‘commissioned the ICRC to take the place of the Protecting Power’.[13]
1196  The German capitulation greatly increased the ICRC’s work as a substitute for a Protecting Power, particularly as large numbers of German prisoners of war were put on trial by Allied courts for war crimes or other offences and Switzerland had ceased to act as Protecting Power, since there was no longer a German Government. The ICRC therefore set up a legal assistance service, which continued to work for several years after the end of hostilities.[14]
1197  So, without any formal agreement, the ICRC in fact exercised many of the humanitarian functions of Protecting Powers in relations between the Free French authorities and the Third Reich.
1198  It was therefore not surprising that, when it came to the process of revising the humanitarian conventions after the end of the Second World War, provision was made for the ICRC, or other impartial humanitarian organization, to act as a substitute in case no Protecting Power had been appointed, in order to assume the humanitarian functions performed by Protecting Powers under the Geneva Conventions.
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2. Preparatory work for the 1949 Geneva Conventions
1199  Almost 70 per cent of the prisoners of war captured during the Second World War were denied the assistance of a Protecting Power for some or all of their time in captivity.[15] Small wonder, therefore, that part of the work leading up to the revision of the humanitarian conventions involved striving to establish substitution procedures should the appointment of a Protecting Power meet insurmountable obstacles. The Conference of Government Experts which met in Geneva in April 1947 took a first step in that direction by stipulating that, in the absence of a Protecting Power, the ICRC (or ‘some other impartial humanitarian organization’) could agree to transmit the notifications and information between the belligerents as provided for in the prisoners of war convention.[16]
1200  Encouraged by this, the ICRC inserted a common article in the four draft conventions submitted to the 17th International Conference of the Red Cross held in Stockholm in August 1948, in which it set out a real substitution procedure.[17] The idea was to replace a Protecting Power that could not, or no longer, operate either by a body offering every guarantee of impartiality and efficacy and approved by the Parties to the conflict or by a neutral State or a humanitarian organization such as the ICRC, appointed unilaterally by the Detaining Power if the Parties were unable to reach an agreement.
1201  Draft article 8 stated that:
The Contracting Parties may, at all times, agree to entrust to a body which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present Convention.
Moreover, if [protected persons] do not benefit, or cease to benefit by the activities of a Protecting Power or of the said body, the Party to the conflict in whose hands they may be, shall be under the obligation to make up for this lack of protection by inviting either a neutral State or an impartial humanitarian agency, such as the International Committee of the Red Cross, to assume in their behalf the duties devolving by virtue of the present Convention on the Protecting Powers.
Whenever the Protecting Power is named in the present Convention, such reference also designates the bodies replacing it under the terms of the present Article.[18]
1202  This draft was adopted with no substantive changes by the Stockholm Conference[19] and was then submitted to the 1949 Diplomatic Conference.[20]
1203  Like all the draft common articles, draft article 8 was submitted to the Joint Committee of the 1949 Diplomatic Conference, which entrusted the task of studying it to the Special Committee. The Special Committee devoted seven meetings to it.[21] The draft then came back before the Joint Committee before being adopted in the Conference’s Plenary Assembly.[22]
1204  The discussions at the Diplomatic Conference were long and rather muddled. Although no-one was disputing the need for a substitution procedure in the absence of a Protecting Power, the delegates had divergent views about the bodies that could be called upon as substitutes, about how they should be appointed and about the scope of their mandate. Moreover, the very expression ‘substitute for Protecting Powers’ was used to refer to organizations that differed radically in nature and in terms of the scope of the tasks that they were to perform. Thus, while some delegations basically envisaged entrusting to the ICRC the humanitarian tasks usually assigned to Protecting Powers,[23] others ruled out the possibility of entrusting such a mandate to the ICRC.[24] The French delegation, for its part, suggested setting up an ad hoc international body to shoulder all the tasks of the Protecting Power, including those arising essentially from diplomatic law. France suggested that this ‘High International Committee for the Protection of Humanity’ would have 30 members recruited from among political, religious and scientific figures, senior judges and Nobel Peace Prize winners. The members would be elected by an assembly made up of representatives of all the States party to the Geneva Conventions. In situations where no Protecting Power had been appointed, this body would take over all the tasks normally entrusted to Protecting Powers under the Geneva Conventions.[25]
1205  In an attempt to clarify the issue, the delegation of the United Kingdom to the Stockholm Conference suggested splitting paragraph 2 of draft article 8 into three separate paragraphs.[26] This new draft was the basis for the deliberations of the Diplomatic Conference.[27] For its part, concerned that a Detaining Power would appoint as a substitute for the Protecting Power a State or international organization biased in its favour, the Soviet delegation was firmly opposed to the unilateral designation of a substitute by the Detaining Power as set forth in both the Stockholm draft and the UK amendment.[28] In the end, the Conference adopted common Article 10 (Article 11 in the Fourth Convention) by 30 votes to 8.[29] At the signing ceremony for the new Geneva Conventions, the Soviet Union and its allies at the time made a reservation to the article.[30]
1206  Article 10 bears the marks of the uncertainty and imprecision that characterized the discussions that gave rise to it.
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C. The structure of Article 10
1207  Article 10 sets out the framework for the appointment and the work of the substitute for the Protecting Powers.
1208  The article provides for three substitution scenarios:
(a) the Protecting Powers are replaced by an organization offering every guarantee of impartiality and efficacy, appointed by agreement between the High Contracting Parties (paragraph 1);
(b) if no such agreement can be reached, the Protecting Powers are replaced by a neutral State or by an organization offering every guarantee of impartiality and efficacy, appointed unilaterally by the Detaining Power (paragraph 2);
(c) if protection cannot be arranged accordingly, the Protecting Powers are replaced by a humanitarian organization such as the ICRC, appointed by the Detaining Power, or the Detaining Power accepts an offer of services from such an organization (paragraph 3).
1209  It is clear from the letter and the structure of Article 10 that these possibilities have to be explored in the order given above: when the first is exhausted by default, the second automatically applies, and when the second is exhausted the third applies.[31]
1210  While Article 10 does not detail the conditions of application of the substitution mechanisms, the deliberations of the Diplomatic Conference made those conditions quite clear. When introducing draft article 8, the ICRC expert explicitly stated that its purpose was ‘to make up for the too frequent absence of a Protecting Power’,[32] and most of the delegates who took the floor during the opening debate at the fifth meeting of the Joint Committee stressed this point.[33]
1211  The situations in which the substitution procedure was foreseen by the drafters to be applicable were: a large-scale conflict in which there were no longer any neutral Powers able to carry out the role of Protecting Power effectively; the disappearance of the detainees’ Power of Origin, or at least of the government representing that Power (the case of Germany following its capitulation on 8 May 1945); or the ability of one of the belligerents to force the adverse Party to put an end to the work of the Protecting Power (the case of Vichy France).[34]
1212  Article 5 of Additional Protocol I has introduced further clarity with regard to the procedure for appointing Protecting Powers or their substitute.
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D. Paragraph 1: Appointment of substitutes by agreement between the High Contracting Parties
1213  Article 10(1) outlines the framework for appointing, at any time, a general substitute for Protecting Powers. It does not impose any obligation on the High Contracting Parties, in the absence of a Protecting Power, to entrust an organization with performing the duties incumbent on such a Power, but it does give them the possibility to do so (see the use of ‘may’).
1214  This paragraph provides for a substitution based on the agreement of the High Contracting Parties.[35] The intention here was primarily – but not exclusively – to incorporate France’s proposal that a ‘High International Committee for the Protection of Humanity’ be set up.
1215  In fact, however, this proposal was greeted with scepticism because of the difficulty of setting up a body fulfilling all the requirements and capable of working effectively, while made up of members from different States. The Soviet delegation also underlined the artificial nature of this High International Committee, whose members would have to be acknowledged and accepted by all States and ‘would … be in some way outside and superior to the existing world’. When – in response to the question of where such a learned body could meet if there were no neutral States left – the French representative stated that ‘[i]t could meet on a piece of internationalized territory, or on several such territories in different parts of the world’, it became clear that the proposal relied on mere word-play and that it was out of touch with reality.[36]
1216  At the 1949 Diplomatic Conference, the International Refugee Organization, a predecessor of UNHCR, asked to be expressly mentioned in Article 10 as an organization that could be called upon in the absence of a Protecting Power, in particular when it came to protecting refugees and stateless persons.[37] While refusing to specifically mention the International Refugee Organization, the 1949 Diplomatic Conference acknowledged that the organization perfectly matched the definition of an organization offering every guarantee of impartiality and efficacy.[38]
1217  The Conference eventually concluded that it was not mandated to create a new international organization and merely adopted a resolution that recommended looking into the possibility of setting up an international body tasked with carrying out the duties of Protecting Powers in their absence. Resolution 2 of the 1949 Diplomatic Conference, entitled ‘Creation of an international body in the absence of a Protecting Power’, stated:
Whereas circumstances may arise in the event of the outbreak of a future international conflict in which there will be no Protecting Power with whose cooperation and under whose scrutiny the Conventions for the Protection of Victims of War can be applied; and
whereas [common Article 10 (Article 11in the Fourth Convention) provides] that the High Contracting Parties may at any time agree to entrust to a body which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the aforesaid Conventions,
the Conference recommends that consideration be given as soon as possible to the advisability of setting up an international body, the functions of which shall be, in the absence of a Protecting Power, to fulfil the duties performed by Protecting Powers in regard to the application of the Conventions for the Protection of War Victims.[39]
1218  Drawing upon this last paragraph, it was logically up to France to undertake consultations to bring its idea to fruition. However, after a few half-hearted attempts, France abandoned the project.[40] Thus, the first possibility of substitution set forth in Article 10 refers to a body that – at least so far and in terms of what the drafters of the Geneva Conventions had in mind – has not seen the light of day.
1219  Although Article 10(1) undoubtedly refers chiefly to the international body that was to be set up to replace Protecting Powers, in accordance with Resolution 2, the wording of the paragraph is not restricted solely to that body, since it refers to ‘an organization which offers all guarantees of impartiality and efficacy’.[41] Given that the text of paragraph 1 does not refer to an idea which never materialized, nothing precludes the High Contracting Parties from using this paragraph in the future to create a new body which, as the wording ‘organization’ indicates, cannot be a neutral State. This also flows from the phrase ‘at any time’ used in this paragraph.
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E. Paragraph 2: Unilateral appointment of a substitute by the Detaining Power
1220  Article 10(2) is the result of the fusion of the provision from the Stockholm draft and a proposal made by the United Kingdom. If in a given international armed conflict no Protecting Power is appointed or in case the appointed Protecting Power ceases its activities and cannot be replaced by another one, this paragraph requires the Detaining Power to ask either a neutral State or ‘an organization which offers all guarantees of impartiality and efficacy’[42] to undertake the tasks entrusted to Protecting Powers under the Geneva Conventions.
1221  It may seem surprising that the Conventions maintained the solution of a unilateral appointment of the substitute for the Protecting Power by the Detaining Power alone, given that the French delegation had warned the Conference about the risk of the Detaining Power appointing ‘some puppet body’.[43] But this decision is explained by the hypothetical scenarios that the substitution procedures were intended to cover, in particular the disappearance of the Power of Origin of the protected persons or the disappearance of any government able to speak freely on behalf of that Power.
1222  To overcome the risk of abuse inherent in a unilateral appointment, the UK delegation had envisaged entrusting the ICRC with the task of designating the neutral State to which the Detaining Power would have recourse, but the ICRC delegate stated that it was not up to the ICRC to do so.[44] That being the case, and in the light of the situations that the substitution procedure was intended to cover, the only remaining solution was to entrust this task to the Detaining Power. The Diplomatic Conference considered that Article 10(4) would be a safeguard against the risk of potential abuse arising from unilateral designation.
1223  However, these precautions were not enough to reassure the USSR and its allies, as well as the People’s Republic of China and a number of other States, which feared that the Detaining Power would designate a State or an organization biased in its favour, and that the protection afforded to victims would be illusory.[45] Thus, when signing the Geneva Conventions, the USSR made the following reservation:
The Union of Soviet Socialist Republics will not recognize the validity of requests by the Detaining Power to a neutral State or to a humanitarian organization, to undertake the functions performed by a Protecting Power, unless the consent of the Government of the country of which the protected persons are nationals has been obtained.[46]
1224  The essential element of this reservation, which was formulated in identical wording by the other reserving States, is that the implementation of paragraph 3 remains subject to the consent of the Power of Origin of the protected persons. The logic underpinning this reservation was that, since it is up to the Power of Origin of the protected persons to appoint a Protecting Power, then this Power should also be involved in the appointment of its substitute.
1225  This reservation – the logic of which also applies to the third paragraph of the article – was confirmed when the Conventions were ratified. In the early 1990s, most successor States to the former USSR chose to accede to the Geneva Conventions without making any reservation to Article 10. Similarly, several other States revoked the reservation at the end of the Cold War.[47] However, at the time of writing the reservation remains in force for eight States.[48]
1226  According to the 1969 Vienna Convention on the Law of Treaties, ‘[a] reservation established with regard to another party … (a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and (b) modifies those provisions to the same extent for that other party in its relations with the reserving State’.[49] Therefore, with regard to all those States for which the reservation used to be, or still is, in force, the paragraph was largely ineffectual for any international armed conflict to which they might become party.
1227  But even the States which did not express a reservation with regard to Article 10 did not resort to actually using it: as with paragraph 1, there is also an absence of practice when it comes to the substitution procedure set out in paragraph 2. It is therefore the solution provided for in paragraph 3, namely replacing the Protecting Power by a humanitarian organization such as the ICRC, which should be considered in more detail.
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F. Paragraph 3: Replacement of the Protecting Power by a humanitarian organization such as the ICRC
1. Discussion of the law
1228  Article 10(3) applies to situations in which none of the substitution possibilities provided for in paragraphs 1 and 2 could be implemented. If there is no Protecting Power, and if the other substitution possibilities have been exhausted, paragraph 3 foresees that the Detaining Power must turn to an impartial humanitarian organization, such as the ICRC, to assume the humanitarian tasks normally undertaken by Protecting Powers or that it must accept an offer of services from such an organization to assume those tasks. As indicated above, the reservations formulated by some States with regard to this article also apply to paragraph 3.[50]
1229  The mention of the ICRC here, as an example of a humanitarian organization, is an express recognition by the Conventions of the ICRC’s qualification to assume the humanitarian tasks normally assigned to Protecting Powers. However, nothing prevents an impartial humanitarian organization other than the ICRC from making an offer of services in the sense of paragraph 3.[51] Given that the first three paragraphs of Article 10 do not contain any conditions or restrictions, the clause ‘subject to the provisions of this Article’ clearly refers to the conditions set out in paragraphs 4 and 5.
1230  Where paragraph 3 applies, the Detaining Power is bound to accept an offer of services from the ICRC to undertake the humanitarian tasks of a Protecting Power. That obligation emerges from the wording of the article itself (‘shall accept’). This was indeed the understanding of the government representatives at the Diplomatic Conference.[52] This understanding was also confirmed by the report of the Special Committee of the Joint Committee as well as by the Joint Committee’s report to the Plenary Assembly of the Diplomatic Conference:
It was only if such protection could not be thus ensured, that the Detaining Power would have to apply to a humanitarian body such as the ICRC If the Detaining Power did not, on its own initiative, apply to a humanitarian body in the circumstances envisaged, any body of this kind might offer it its services, and it might not refuse them. This latter obligation laid upon the Detaining Power was offset by the condition that the body offering its services should be able to afford sufficient guarantees of its ability to perform the duties in question and to fulfil them with impartiality.[53]
1231  It was, moreover, a necessary consequence of the Diplomatic Conference’s desire to ensure that protected persons were not deprived of the protection provided by the functions of a Protecting Power or, failing that, an organization standing in for such a Power, with the ICRC being included.[54] The ICRC is therefore positioned, alongside other humanitarian organizations, as a kind of ‘goalkeeper’ of humanitarian protection. If all the other substitution possibilities prove ineffectual, the Detaining Power is obliged to call upon the ICRC, or another humanitarian organization, or to accept an offer of services from such an organization to carry out the humanitarian tasks normally undertaken by the Protecting Powers.
1232  The ICRC, however, has always believed that it would be unable to offer its services unless it was certain of the agreement of the Parties to the conflict.[55] This position, which is a return to the basically consensual nature of the institution of Protecting Powers, makes the ICRC’s appointment subject to the consent of the belligerents, whereas paragraph 3 was intended precisely to avoid such a state of affairs. This is in the nature of things and stems from common sense – after all, it is hard to imagine how a humanitarian organization such as the ICRC could exercise the mandate of the substitute for a Protecting Power without the agreement of the belligerents. This understanding was subsequently confirmed in Article 5(4) of Additional Protocol I.
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2. Scope of the mandate of a substitute: ‘humanitarian functions’
1233  As regards the scope of the tasks that could be entrusted to the ICRC or to any other humanitarian organization appointed as a substitute for Protecting Powers under the terms of this article, paragraph 3 clearly states that it is restricted to ‘the humanitarian functions’ performed by Protecting Powers. While the substitution scenarios set out in paragraphs 1 and 2 envisage assuming ‘the duties’ or ‘the functions’ performed under the Geneva Conventions by a Protecting Power, paragraph 3 refers to ‘humanitarian functions’.
1234  No indication, definition, or list of treaty provisions is given in the Conventions, or can be found in the preparatory work, that clarifies which of the various functions entrusted to the Protecting Powers under the Geneva Conventions are ‘humanitarian’ and which are not.
1235  At the 1949 Diplomatic Conference, the ICRC representative repeatedly stressed that the ICRC could not be a ‘genuine substitute’ and could only carry out some of the tasks incumbent upon a Protecting Power.[56] The Conference acknowledged that the ICRC could not be expected to assume all the tasks of the Protecting Powers, but only those of a humanitarian nature.[57]
1236  As to what exactly the ICRC understands by the notion of ‘humanitarian functions’, its position on this point has changed profoundly over time. In a memorandum in 1951 the ICRC set out which tasks it was prepared to perform while acting as a substitute for a Protecting Power, and the conditions under which it would do so.[58] It ruled out most of the work of scrutinizing the implementation of the Geneva Conventions, in the belief that such an activity was incompatible with the purpose, the nature and the limits of the ICRC’s work as a ‘quasi-substitute’.[59] It accordingly refused to supervise the implementation of the provisions governing: the attitude to be observed by belligerents in areas of military operations; the measures belligerents should adopt regarding their own nationals and property (e.g. issuing identity documents to the armed forces or use of the emblem); and many of the provisions relating to occupied territory.[60]
1237  The ICRC also pointed out other activities that could give rise to difficulty.[61] Admittedly, after all these reservations, there was little left of the duties of a substitute for Protecting Powers for the ICRC to perform.
1238  As ICRC practice since 1951 in large measure nullified the relevance of the reservations formulated in the aforementioned memorandum, the ICRC reviewed its position and stated categorically at the 1971 Conference of Government Experts that it was prepared to undertake all the tasks incumbent on Protecting Powers under the Geneva Conventions:
[T]he representative of the ICRC explained that the Committee had recently given careful attention to this question and that it had arrived at the conclusion that all the tasks falling to a Protecting Power under the Conventions could be considered humanitarian functions. In other words, the ICRC was ready to take upon itself all the functions envisaged for Protecting Powers in the Conventions.[62]
This position was confirmed several times both before and during the 1977–1974 Diplomatic Conference.[63] This understanding is further confirmed by Article 10(6).
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3. Subsequent practice
1239  Although most armed conflicts since 1949 have been non-international, there have also been a substantial number of international armed conflicts. And yet, Protecting Powers were only appointed in five of those conflicts.[64] Thus, there has been no shortage of opportunities to implement the substitution procedures envisaged by the Geneva Conventions.
1240  Yet, in none of those conflicts was an organization formally appointed as a substitute for Protecting Powers. The possibility of appointing the ICRC in this capacity has been raised in a few cases only, including the Suez crisis (1956), the Irian Jaya affair (1961–62), the Vietnam War, the Arab-Israeli conflict, and the conflict between India and Pakistan.[65]
1241  However, since no Protecting Powers have been appointed in most conflicts since 1949, the ICRC has progressively extended the scope of its activities and assumed more and more of the duties normally assigned to them. As discussed below, this has been done on the basis of its right of humanitarian initiative (see para. 1258).
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G. Paragraph 4: Assurances required from neutral Powers or humanitarian organizations acting as substitutes
1242  Article 10(4) is intended to prevent any abuses that could arise from the unilateral appointment of a substitute for the Protecting Power by the Detaining Power (as foreseen in paragraphs 2 and 3). This provision has its origins in the draft put forward by the United Kingdom during the 1949 Diplomatic Conference.[66] It imposes a twofold obligation on the neutral State or the organization mandated by the Detaining Power.
1243  First, the substitute unilaterally designated by the Detaining Power must be mindful of its responsibility to the Power of Origin of the captives. Second, the substitute must provide sufficient assurances that it is able to assume the tasks being entrusted to it and to discharge them impartially.
1244  It is, however, by no means certain that these safeguards will prevent the risk – mentioned by the French representative during the opening debate – of the Detaining Power appointing ‘some puppet body’. Ultimately, it is the State or organization in question that is subject to the twofold obligation set out in paragraph 4, and not the Detaining Power appointing it.
1245  However, if the neutral State or the organization appointed wishes to carry out its mission in good faith, paragraph 4 is extremely useful because it can be invoked to defend the substitute’s independence against any attempts by the Detaining Power to interfere with its work.
1246  As to the question of who is to decide whether the conditions of paragraph 4 are fulfilled, one delegation during the 1949 Diplomatic Conference stated that ‘this decision should be taken by the Powers concerned, i.e. the Detaining Power and the Power to which the person to be protected belonged, if such existed’.[67]
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H. Paragraph 5: The prohibition of derogations
1247  Article 10(5) provides another safeguard against abuse with regard to the unilateral appointment of a substitute. It provides that no derogation may be made by special agreements from the requirements of Article 10 to qualify as a substitute.
1248  This paragraph originates in a proposal put forward by France during the 1949 Diplomatic Conference. It is intended to prevent the recurrence of a situation that arose during the Second World War.[68] Through an agreement signed on 16 November 1940, the Reich Government forced Vichy France to put an end to the protection of French prisoners of war by the Protecting Power appointed at the outbreak of the war – the United States – and to accept instead a pseudo national monitoring mechanism in the form of a French committee headed by Ambassador Scapini.[69] Given the dependence of the Vichy regime on the Reich Government, this committee was powerless to prevent violations of the 1929 Geneva Convention on Prisoners of War, in particular the changing of prisoners of war into civilian workers so that they could be put to work in the Reich’s war industries.
1249  This historical background explains why the wording refers to a special agreement ‘between Powers one of which is restricted, even temporarily, in its freedom to negotiate with the other Power or its allies by reason of military events, more particularly where the whole, or a substantial part, of the territory of the said Power is occupied’. The restriction in the freedom to negotiate may be particularly evident in the case of occupation. However, on the basis of the principle of non-derogation by way of the special agreements enshrined in common Article 6 (Article 7 in the Fourth Convention), the prohibition would apply regardless of whether such a specific situation would arise.
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I. Paragraph 6: Equivalence of rights and responsibilities of Protecting Powers and their substitutes
1250  Article 10(6) deals with both the rights and the duties of the substitute for the Protecting Power. This provision has its origins in the Stockholm draft. There should be no problems of interpretation regarding the prerogatives and tasks of a substitute designated on the basis of Article 10(1) and (2), since they are exactly the same as those of the Protecting Power itself. The wording of paragraph 6 therefore means that the rights and responsibilities of the Protecting Power and its substitute appointed in accordance with paragraphs 1 and 2 of the article are identical.[70]
1251  The issue becomes more complex in relation to the prerogatives and tasks of the ICRC or another organization appointed on the basis of paragraph 3. When such an organization is designated as substitute accordingly, it is tasked with assuming ‘the humanitarian functions’ performed by Protecting Powers. For a substantive discussion, including on the evolution of the ICRC’s position in this regard, which has rendered this distinction irrelevant, see section J.
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J. Developments since 1949
1252  Since 1949, Article 10 has evolved in much the same way as Article 8. Going by the use of the word ‘shall’ in paragraphs 2 and 3, it could be concluded that the appointment of a substitute for Protecting Powers is not an option for the Parties to a conflict but an obligation. In other words, whenever an international armed conflict breaks out, and no Protecting Power or substitute in the sense of paragraph 1 has been appointed, the Parties to the conflict are obliged to appoint a substitute of the Protecting Powers on the basis of either paragraph 2 or paragraph 3. It is clear that, in 1949, this was indeed the intention of the drafters.
1253  However, since 1949 it appears that the interpretation of Article 10 as being compulsory is no longer in line with States’ current understanding of this provision, nor with the ICRC’s operational practice. Substitutes for the Protecting Powers have not been formally appointed when they should have been in accordance with the letter of the Conventions. Thus, given the absence of any protest, it seems that in the view of most States the failure to appoint a Protecting Power in each international armed conflict is not a violation of the High Contracting Parties’ treaty obligations: as with Article 8, the application of Article 10 appears to have been interpreted as being optional. The absence of practice has not been matched, however, by any indication that the High Contracting Parties would consider that Article 10 has fallen into desuetude.[71]
1254  It is possible to identify three – very different – reasons for this development. First, the article is overly complicated and sets out multiple substitution options. Yet, the starting point was a very simple idea drawn from past practice: if no Protecting Power was appointed, allow a humanitarian organization such as the ICRC to carry out some of the tasks normally entrusted to Protecting Powers. Unfortunately, a misconception overshadowed all the deliberations on this matter: that the greater the number of organizations empowered to assume this role, the more the Parties to a conflict would be prepared to accept the work of a substitute. As a result, other proposals came to be tagged on to the original idea. This was particularly the case for France’s proposal to set up a High International Committee for the Protection of Humanity, which actually aimed to replace the Protecting Powers with an international body responsible for overseeing the implementation of the Geneva Conventions. Multiplying the possibilities of substitution meant more uncertainties, sidetracks and interpretation difficulties. Weighed down by all this baggage, the proposed body never materialized.
1255  Second, the same political difficulties that all too often prevented the appointment of a Protecting Power also hindered the appointment of a substitute body.[72] Ultimately, this is what led to the failure of the substitution procedures set out in Article 10: when it would have been possible to appoint a substitute it was not necessary, because then there was no obstacle to appointing Protecting Powers; and when it was necessary, it was not possible, because the obstacles to the appointment of Protecting Powers also stood in the way of the appointment of a substitute.
1256  Third, it is undeniable that, on the basis of its right of humanitarian initiative as enshrined in the Geneva Conventions, the ICRC has expanded the scope of its activities tremendously since 1949. This development has occurred to such an extent that the ICRC already performs many – and in some situations most – of the tasks normally entrusted to Protecting Powers. When there is no Protecting Power, therefore, States have little motivation to seek a substitute organization.
1257  Both constructs are distinct: the possibility for the ICRC or other humanitarian organization to act as a substitute for the Protecting Power remains separate from the right of an impartial humanitarian organization such as the ICRC to offer its services on the basis of what is frequently referred to as the right of humanitarian initiative.[73] Thus, the ICRC retains its right of humanitarian initiative independently of whether and when, in a given international armed conflict, Protecting Powers or their substitutes have formally been appointed.
1258  In general, the ICRC prefers to act on the basis of the right of humanitarian initiative conferred on it by the Geneva Conventions and their Additional Protocols. Thus, instead of acting as a substitute of the Protecting Power, i.e. representing the interests of a particular Party to an international armed conflict on the basis of Article 10, the ICRC prefers to work on the basis of its mandate to protect and assist all persons affected by an armed conflict.[74]
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– ‘The Implementation of Humanitarian Law’, in Antonio Cassese (ed.), The New Humanitarian Law of Armed Conflict, Vol. I, Editoriale scientifica, Naples, 1979, pp. 310–346.
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– ‘Le contrôle de l’application des conventions humanitaires en cas de conflit armé’, Annuaire français de droit international, Vol. II, 1956, pp. 343–352.
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Draper, Gerald I.A.D., ‘The implementation of international law in armed conflicts’, International Affairs (London), Vol. 48, 1972, pp. 46–59.
– ‘The implementation and enforcement of the Geneva Conventions of 1949 and of the Two Additional Protocols of 1978’ (sic), Collected Courses of the Hague Academy of International Law, Vol. 164, 1979, No. III, pp. 1–54.
Forsythe, David P., ‘Who Guards the Guardians, Third Parties and the Law of Armed Conflicts’, American Journal of International Law, Vol. 70, No. 1, 1976, pp. 41–61.
Gasser, Hans-Peter, ‘Scrutiny’, Australian Year Book of International Law, Vol. 9, 1985, pp. 345–358.
Guggenheim, Paul, Traité de droit international public, Vol. II, Georg & Cie, Geneva, 1953, pp. 332–337.
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– ‘Implementation of the Geneva Conventions of 1949 and Additional Protocols of 1977’, European Seminar on Humanitarian Law (Jagellonean University, Krakow, 1979), Polish Red Cross/ICRC, Warsaw/Geneva, 1979, pp. 87–100.
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1 - See Second Convention, Article 10; Third Convention, Article 10; and Fourth Convention, Article 11.
2 - For more information about the appointment and mandate of Protecting Powers, see common Article 8 (Article 9 in the Fourth Convention).
3 - See William McHenry Franklin, Protection of Foreign Interests, A Study in Diplomatic and Consular Practice, United States Government Printing Office, Washington, 1946, pp. 254–256 and 266–268, and Janner, p. 24.
4 - Article 2(d) of Additional Protocol I defines ‘substitute’ as ‘an organization acting in place of a Protecting Power in accordance with Article 5’.
5 - On special agreements in non-international armed conflict, see the commentary on common Article 3, section K.
6 - For historical references to these two cases, see Bugnion, 2003, p. 903, fn. 3.
7 - See ibid. pp. 869–870.
8 - For example, in December 1941 the Reich opposed Switzerland taking over several protection mandates previously exercised by the United States on the pretext that Germany no longer recognized as a belligerent State any country whose government had left the national territory (the case of Belgium, the Netherlands and Norway, among others); see Rousseau, p. 87, and Janner, p. 23. Further, following the capitulation of Germany and Japan, Switzerland decided to renounce protecting German interests because the Reich Government had disappeared and to give up protecting Japanese interests because Japan had been forced to sever all diplomatic relations. See Janner, pp. 12 and 29–30.
9 - Bugnion, 2003, p. 871.
10 - Ibid. p. 868.
11 - Ibid. p. 871.
12 - Report of the International Committee of the Red Cross on its Activities during the Second World War (September 1, 1939–June 30, 1947), Volume I: General Activities, ICRC, Geneva, May 1948, pp. 352–353, 357 and 359.
13 - Bugnion, 2003, pp. 871–872.
14 - Ibid. p. 872. See also Catherine Rey-Schyrr, De Yalta à Dien Bien Phu: Histoire du Comité international de la Croix-Rouge 1945–1955, ICRC/Georg, Geneva, 2007, pp. 160–163.
15 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 21 (ICRC statement).
16 - Report of the Conference of Government Experts of 1947, pp. 262–267 and 270–271.
17 - For further historical information, see also de La Pradelle, 1951, pp. 225–234.
18 - See Draft Conventions submitted to the 1948 Stockholm Conference, pp. 8–9, 36–37, 57 and 157. The designation of the protected persons is adapted to each Convention.
19 - Minutes of the Legal Commission at the 1948 Diplomatic Conference, pp. 73–79.
20 - Draft Conventions adopted by the 1948 Stockholm Conference, draft article 8/9/9/9, pp. 11–12, 34, 55 and 116.
21 - The 13th, 14th, 15th, 16th, 17th, 18th and 19th meetings of the Special Committee.
22 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, pp. 48, 62, 75, 114, 206, 226–227, 245–246, 299, 343–357 and 361; Vol. II-A, pp. 208–209, 222–223, 578 and 849; Vol. II-B, pp. 21–23, 60–69, 74–75, 80, 89, 110–112, 27, 92–93, 96–97, 118–119, 106, 29–30, 34, 130–131, 38–39, 158, 166, 172, 190, 346–352, 487–489 and 521–524; Vol. III, pp. 30–34, 102–103 and 182.
23 - ‘M. de Alba was of the opinion that the functions of humanitarian organizations and particularly the ICRC should be extended in order to enable them to take the place of Protecting Powers as far as possible’, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 22 (Mexico).
24 - ‘The role of the ICRC is totally different from that of a Protecting Power’, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 22 (France); ‘the Australian Government considers that the ICRC cannot serve as a substitute for the Protecting Power’, ibid. pp. 22–23 (Australia).
25 - The French proposal is published in ibid. Vol. III, pp. 30–31; for the minutes of the deliberations, see ibid. Vol. II-B, pp. 22, 60–63, 110–112, 27, 92–93, 96–97, 118–119, 106, 34, 130–131 and 487–489; for Resolution 2 of the Diplomatic Conference, see ibid. Vol. I, p. 361.
26 - The UK amendment is published in ibid. Vol. III, pp. 31–32.
27 - Ibid. Vol. II-B, pp. 60–69.
28 - Ibid. pp. 22, 29–30, 130, 347–348, 350–351 and 352.
29 - Ibid. p. 352.
30 - Ibid. Vol. I, p. 355, and Vol. II-B, pp. 537–538. For a discussion of this reservation, see section E.
31 - The same interpretation is given in the Joint Committee’s report to the Plenary Assembly of the Diplomatic Conference of 1949, ibid. Vol. II-B, p. 130.
32 - Ibid. p. 21 (ICRC statement).
33 - Ibid. pp. 21–23 (Australia, France, United Kingdom and USSR).
34 - Ibid. pp. 21–23 (Canada, France).
35 - Although the wording of paragraph 1 leaves room for interpretation, the use of the article in the opening phrase, ‘The High Contracting Parties’ (emphasis added), seems to indicate that the 1949 Diplomatic Conference foresaw a meeting or consultation of all the Contracting Parties to set up a new organization or to entrust to an existing organization the duties incumbent on the Protecting Powers under the Conventions. If the Conference had envisaged that a limited number of High Contracting Parties were entitled to set up such a body or to entrust the duties incumbent on the Protecting Powers to an existing organization, it would not have used the initial article.
36 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 92–93 (Denmark, USSR, France).
37 - Ibid. Vol. II-B, p. 80; Vol. III, pp. 32–33.
38 - Ibid. Vol. II-B, p. 80.
39 - Ibid. Vol. I, p. 361.
40 - For a description of the French Government’s attempts to canvass support for its proposal after the 1949 Conference and an explanation of why they failed, see de La Pradelle, 1956.
41 - Although the International Red Cross and Red Crescent Movement referred to the principle of impartiality right from its foundation in 1863, this principle was only authoritatively defined in the Declaration of the Fundamental Principles of the Red Cross adopted by the 20th International Conference of the Red Cross which met in Vienna in 1965: ‘Impartiality: [The International Red Cross and Red Crescent Movement] makes no distinction as to nationality, race, religious beliefs, class or political opinions. It endeavours to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress.’ For further analysis of the notion of ‘impartiality’, see the commentary on Article 9, para. 1160. The word ‘efficacy’ belongs to common language and has to be interpreted according to its usual meaning.
42 - Article 10(2), itself speaking only of ‘such an organization’, insofar refers back to the qualities described in paragraph 1.
43 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 22 (France).
44 - Ibid. pp. 65–66.
45 - For further historical background, see Wylie, p. 11: While most states were willing to embrace third party assistance, Moscow’s reluctance to countenance the presence of neutral protecting powers in the Soviet Union, especially if they were to enjoy far-reaching powers to act on behalf of POWs [prisoners of war], proved a major stumbling block when the status of protecting powers came up for discussion at the 1949 diplomatic conference. It also became clear that Moscow was unwilling to allow states to nominate agencies to protect the prisoners in their custody, without obtaining the prior consent of the prisoner’s own government.
46 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, p. 355. See also see Claude Pilloud, ‘Reservations to the Geneva Conventions of 1949’, International Review of the Red Cross, Vol. 16, No. 180, March 1976, pp. 117–120, and Vol. 16, No. 181, April 1976, pp. 163–187, especially at 117–120.
47 - Information taken from the ICRC’s Treaties and Documents database, available on the ICRC website https://www.icrc.org/.
48 - For details, see above ‘Reservations or declarations’ to Article 10.
49 - Vienna Convention on the Law of Treaties (1969), Article 21(1)(a)–(b). See also International Law Commission, Report of the Sixty-Third Session, A/66/10/Add. 1, 2011, p. 454, para. 4.2.4 sub 3: To the extent that an established reservation modifies the legal effect of certain provisions of a treaty, the author of that reservation has rights and obligations under those provisions, as modified by the reservation, in its relations with the other parties with regard to which the reservation is established. Those other parties shall have rights and obligations under these provisions, as modified by the reservation, in their relations with the author of the reservation. For further analysis of this ‘principle of reciprocal application of reservations’, see pp. 459–464.
50 - For details, see para. 1225.
51 - For further details on the notion of impartial humanitarian organizations, see the commentary on Article 9, section C.3.b.
52 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 29 (USSR).
53 - Ibid. pp. 111 and 130 (both reports have identical wording on this point).
54 - See also Dominicé, p. 428.
55 - For references on this point, see Bugnion, 2003, pp. 905–906, fn. 44.
56 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 61 and 63 (ICRC statement).
57 - Ibid. p. 130.
58 - ‘Memorandum sur l’activité du Comité international de la Croix-Rouge en l’absence d’une Puissance protectrice’, Document D 141, 1 May 1951.
59 - Ibid. p. 18. The ICRC used the term ‘quasi-substitute’ to designate the mandate that might be entrusted to it under Article 10(3) and to emphasize the difference between that limited mandate, covering only some of the tasks incumbent on Protecting Powers, and the mandate of a genuine substitute, which would be required to perform all the tasks incumbent on Protecting Powers under the Geneva Conventions. But the term ‘quasi-substitute’ is not used in the Conventions, and merely confuses the issue.
60 - Ibid. pp. 18–20.
61 - Ibid. pp. 20–24.
62 - Report of the Conference of Government Experts of 1971, p. 109, para. 553.
63 - See ibid.; Report of the Conference of Government Experts of 1972 p. 180, para. 4.71, and pp. 207–208, para. 5.46; ICRC, Draft Additional Protocols to the Geneva Conventions of August 12, 1949: Commentary, October 1973, p. 13; and Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. 8, p. 146. See also Bugnion, 2003, pp. 884–885.
64 - For details of these five conflicts, see the commentary on Article 8, para. 1115.
65 - For further analysis, see Bugnion, 2003, pp. 889–894.
66 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. III, pp. 31–32.
67 - Ibid. Vol. II-B, p. 69.
68 - Ibid. Vol. III, p. 31.
69 - Protocol of 16 November 1940 between Germany and Vichy France, Berlin, 16 November 1940, quoted by Georges Scapini, Mission sans gloire, Morgan, Paris, 1960, pp. 36–37.
70 - For a summary of the tasks entrusted to Protecting Powers under the 1949 Geneva Conventions, see the commentary on Article 8, section E.
71 - See also Kolb, pp. 558–559.
72 - For an analysis of these difficulties, see the commentary on Article 8, paras 1117–1118.
73 - As to the legal basis of the ICRC’s right of humanitarian initiative, see in particular common Article 3(2), common Article 9 (Article 10 in the Fourth Convention), and Article 81 of Additional Protocol I. See also Article 5(3) of the 1986 Statutes of the International Red Cross and Red Crescent Movement.
74 - See also Marco Sassòli, Antoine A. Bouvier and Anne Quintin, How Does Law Protect in War?, Vol. I, 3rd edition, ICRC, Geneva, 2011, p. 366: ‘The ICRC, for its part, has no interest in acting as a substitute Protecting Power, as it can fulfil most of the latter’s functions in its own right, without giving the impression that it represents only one State and not all the victims.’; and Kolb, pp. 557–558: ‘In all [cases in which no Protecting Power has been appointed] the ICRC has acted as a sort of de facto substitute for a Protecting Power. However, it has performed the functions in its own name, and according to its own mandate, rather than stressing that it acted as the representative of a particular state.’