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Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.
. -- CONCILIATION PROCEDURE
[p.79] This provision already existed in a slightly different form in Article 83, paragraph 3
, and Article 87
of the 1929 Convention relative to the Treatment of Prisoners of War.
Such alterations as were made in 1949 were in general intended to facilitate the activities of the Protecting Powers and extend their competence in the field of disputes which might arise from the application of the Conventions.
PARAGRAPH 1. -- GOOD OFFICES OF THE PROTECTING POWERS
The Protecting Powers are to lend their good offices in cases of disagreement with regard to the application and interpretation of the Convention, as well as in all cases where they deem it advisable in the interest of protected persons.
The only indication which the Convention contains of the form such good offices will take is the provision in paragraph 2 of this Article for a possible meeting between representatives of the Parties to the conflict. There are, however, other methods to which the Protecting Powers may have recourse in order to try to achieve a fair compromise.
It may happen that one and the same State is responsible for safeguarding the interests of two belligerents ' vis-à-vis ' one another. If that is not the case, the Protecting Powers concerned can take action either severally or jointly, although it seems preferable for the two Protecting Powers to come to an understanding beforehand.
During the Second World War, there were several cases of disagreement between belligerents concerning the way in which the provisions of the 1929 Conventions should be applied. The Protecting Powers, however, were inclined more often than not to regard themselves as agents acting only on the instructions of the Power whose interests they safeguarded. The present provision invites them to take a more positive attitude. The general tendency of the 1949 Conventions is indeed to entrust Protecting Powers with rights and duties considerably more extensive than those which would devolve upon them as mere agents, and with a certain power of initiative. They thus become, as it were, the agents of all [p.80] the Contracting Parties and act in such cases as their own consciences dictate (1).
PARAGRAPH 2. -- MEETING OF REPRESENTATIVES OF THE PARTIES
TO THE CONFLICT
The idea of arranging a meeting of the representatives of the Parties to the conflict on neutral territory suitably chosen is very largely the result of experience gained during the First World War, when such meetings, which were fairly frequent, led to the conclusion of special agreements on the treatment of prisoners of war and on other problems of a humanitarian nature (2).
On the other hand, no meeting of this kind took place during the Second World War, so far as is known to the International Committee of the Red Cross. It is true that the particularly bitter nature of the struggle made the holding of such meetings very difficult, if not impossible.
The Parties to the conflict are bound to give effect to the proposals for a meeting made to them by the Protecting Powers. It should be noted that these proposals may be made spontaneously by the Protecting Powers, which may also suggest that a neutral person, possibly one appointed by the International Committee of the Red Cross, should be present at the meeting.
During the Diplomatic Conference one delegation was against any reference in the Article to disagreements concerning the interpretation of the Convention, on the grounds that its interpretation was not a matter for the Protecting Powers but solely for the Contracting Parties. Several delegations pointed out in this connection that there was no question of entrusting the interpretation of the Convention to the Protecting Powers, but only of allowing them to adjust differences arising in regard to its interpretation.
[p.81] ' Legal settlement of disputes. ' -- A word should be said here concerning a proposal relating to the legal settlement of problems which might arise from the application or interpretation of the Convention. The point was studied by a working party of the joint Committee's Special Committee at the 1949 Diplomatic Conference. The Special Committee adopted the text of an Article to be inserted immediately after that relating to enquiry procedure (Article 53 in the present Convention
). The new Article read as follows:
"The States, parties to the present Convention, who have not recognized as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the International Court of justice in the circumstances mentioned in Article 36 of the Statute of the Court, undertake to recognize the competency of the Court, in all matters concerning the interpretation or application of the present Convention (3)."
This Article, though immediately subjected to violent criticism, was adopted first by the Special Committee, and then by the joint Committee itself. Further discussion took place in the plenary assembly of the Conference, where several delegates stressed the fact that such a provision was inconsistent with Article 35 of the Statute of the International Court, which made the United Nations Security Council responsible for laying down the conditions in which the Court was open to States not party to its Statute. They considered that it was inadvisable for Conventions completely independent of the juridical system of the United Nations to include a provision dealing with the competency of one of its bodies. After a lengthy discussion, the Conference decided to change the proposed Article into a Resolution (Resolution No. 1) which was adopted without opposition. It reads as follows:
"The Conference recommends that, in the case of a dispute relating to the interpretation or application of the present Convention which cannot be settled by other means, the High Contracting Parties concerned endeavour to agree between themselves to refer such dispute to the International Court of Justice."
[p.82] The Diplomatic Conference no doubt acted wisely in eschewing a blend of two distinct juridical systems. It may indeed be desirable for a Convention to constitute a whole in itself, and to contain clauses laying down the procedure for the legal settlement of disputes; but it is none the less true that the Geneva Conventions, in virtue of their purely humanitarian nature, are exceptions to that rule. It is open to any and every State, whether or not a member of the United Nations, to ratify or accede to them. They strive after universality, irrespective of all political or juridical problems.
Nevertheless, the strong recommendation contained in the Resolution undoubtedly carries weight and constitutes a powerful incentive to belligerents, in the circumstances indicated, to appeal to the Hague Court.
* (1) [(1) p.80] This extension of their powers is a logical
consequence of the general mission entrusted to them under
Article 8: "The present Convention shall be applied with
the co-operation and under the scrutiny of the Protecting
(2) [(2) p.80] See Mme FRICK-CRAMER: "Le Comité international
de la Croix-Rouge et les Conventions internationales pour
les prisonniers de guerre", ' Revue internationale de la
Croix-Rouge ', May and July, 1943; Georges CAHEN-SALVADOR:
CAHEN-SALVADOR: ' Les prisonniers de guerre 1914-1919,
1914-1919, ' Payot, Paris 1929, p. 100 ff.;
(3) [(1) p.81] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-B, pp. 103 and 132;
See the Commentary of 2017
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