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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- SUBSTITUTES FOR PROTECTING POWERS
[p.111] GENERAL BACKGROUND
This Article supplements Article 8
Protecting Powers are not, we must repeat, a creation of the Geneva Conventions. They are an institution -- or more precisely a practice only -- of international law, much older than the Conventions. The appointment of a Protecting Power is a private matter between the Power of Origin, which appoints, the Protecting Power, which is appointed, and the State of residence, in which the functions of the Protecting Power are to be exercised. The 1949 Conventions do not enter into the matter. All they do is to designate the Protecting Power -- in this case a private agent -- as the third party entitled to be entrusted, not by the Power of Origin alone, but this time by all the High Contracting Parties, with a higher mission, that of participating in the application of the Conventions and supervising their observance.
The exercise of the Protecting Power's functions accordingly presupposes the juridical existence and capacity to act of the three parties to the contract. In the event of one of the parties ceasing to exist, or merely not being recognized by one of the other two, or again, in the event of its losing its capacity to act, the Protecting Power's mandate automatically comes to an end.
This occurred on numerous occasions in the Second World War. When the Protecting Power itself ceased to function, the gap could be filled by the Power of Origin appointing another neutral State to take its place. Thus, towards the end of the war, Switzerland and Sweden between them were acting as Protecting Powers for practically all the belligerent States. But when it was one of the two belligerents whose legal or actual existence, or capacity to act, ceased, millions of men and women in the power of the enemy were left at his mercy for better or for worse.
The International Committee of the Red Cross could not allow its interest in the victims of war to be overridden by juridical considerations. In its eyes the victims of war are always human beings in distress, whether the country to which they belong is, or is not, recognized by its opponent. The care their often difficult situation calls for does not depend on the entry into force or the lapsing of a Convention.
The International Committee accordingly set itself with varying and generally limited success to make its traditional humanitarian assistance available to prisoners of war whose right to protection under [p.112] the 1929 Convention was in dispute (1). It did more. In certain cases where there was no Protecting Power, the Committee was able, either on its own initiative or at the request of one of the parties, to engage in certain activities normally reserved to the Protecting Power (2). On several occasions, for example, it visited civilian internees to whom the Protecting Power had not access for one reason or another.
The International Committee of the Red Cross took all these points into consideration when it undertook the study of the existing Conventions with a view to revising them, and the drafting of a new one. After considering various solutions and consulting the Conference of Government Experts in 1947 (3), the Committee drafted an Article, common to all four Conventions, which was approved by the Stockholm Conference and taken as the basic text of the Diplomatic Conference of 1949 (4).
This text was the subject of difficult, and frequently confused, discussions. To the principle there was little opposition; but the wording gave rise to numerous amendments (5).
Some delegations felt that the second paragraph was not sufficiently precise. They wished to draw a distinction between the different cases in which a substitute was to be found for a Protecting Power. A neutral State and a humanitarian organization could not, they argued, be placed on the same footing as substitutes.
The International Committee of the Red Cross stated that it was willing, where there was no Protecting Power, to take its place, so far as possible, in carrying out the ' humanitarian ' tasks devolving upon Protecting Powers under the Convention, but that the independence [p.113] which must characterize its action would not permit of its acting as the agent of a particular Power. Moreover, although most of the duties falling on a Protecting Power under the Geneva Conventions were of a humanitarian nature, there were other duties, outside the Conventions, of an administrative or even a political character, which it could not carry out.
The trend of the discussion was now towards the idea of distinguishing between substitutes proper for Protecting Powers and the humanitarian organizations to whose services recourse must be had if there were no substitute available.
Other delegations were afraid that the substitute, being appointed by the Detaining Power, would not have the requisite independence, or would lose sight of the interests of the Power of Origin. Others again were apprehensive of an Occupying Power evading the provisions of the Article by the conclusion of a special agreement with the Government of the occupied country, where that Government was dominated, and perhaps even set up, by the occupant.
Another view, first expressed by the Conference of Government Experts in connection with the new Civilians Convention, was put forward on several occasions by the French Delegation. It was to the effect that, in the event of a general war in which there were no neutral States left, the provisions of the Article would remain inoperative unless some special organization were set up in peace-time.
These various views were embodied in three main amendments or proposals, as follows:
1. An elaborate amendment submitted by the United Kingdom, which
proposed splitting up the second paragraph of the Stockholm draft
into three separate parts, dealing in turn with three possible ways
(conceived as successive, and not alternative, possibilities) of
replacing the Protecting Power (6).
2. A French proposal to insert in all four Conventions the provision
adopted at Stockholm for prisoners of war only. The object of the
amendment was to prevent the conclusion of special agreements between
the Occupying Power and the adverse Government, since the latter's
liberty of action would be restricted.
3. Another French proposal for a new Article setting up a "High
International Committee", consisting of thirty persons of established
impartiality, and capable of replacing a Protecting Power.
[p.114] The United Kingdom amendment was discussed line by line. Parts of it were adopted; others were rejected. It was then redrafted, and led ultimately to the division of the second paragraph of the Stockholm text into two distinct parts, which became paragraphs 2 and 3 of the Article in its final form. The United Kingdom amendment also led to the adoption of the new paragraph 4.
The first French proposal, which was adopted, resulted in the insertion, in all four Conventions, of paragraph 5, which was originally meant to figure only in the Third Convention. The second French proposal was accepted by some; but others pointed out the various practical difficulties which it would involve. It was accordingly put in the form of a simple recommendation, and as such adopted as Resolution 2 (7).
Finally, paragraphs 1, 5 and 6 were approved unanimously in the joint Committee, while paragraphs 2, 3 and 4, and the Article as a whole were approved only by a majority. At the plenary meeting of the Conference the Article was finally adopted by 30 votes to 8. Opposition, which was persistent and recurred at every stage of the discussion, was confirmed by reservations at the time of signature (8). It was directed above all against paragraphs 2 and 3. Numerous delegations were unwilling to allow a Detaining -- that is to say, an enemy -- Power to appoint a substitute of its own choice without the agreement of the Power of Origin. It may have been due to the confused nature of the discussions, or to the defects unavoidable in the translation of oral discussions, that this view was put forward, founded, as it is, on a misunderstanding of the scope of paragraphs 2 and 3. The opponents of the text based their contentions on the idea that if the Protecting Power chosen by the Power of Origin ceased to function, it would follow automatically that the
adverse Power would alone be qualified to find it a successor (9).
It is true that, in the enumeration of the successive cases of absence of protection, one case appears to be omitted, i.e. that if one [p.115] Protecting Power ceased to function, the Power of Origin would appoint another in its place. That was a provision, however, which it was not for the Conference to make. It was not for the Conference to create or to regulate the system of Protecting Powers, which is governed by international usage. All that it was called upon to do was to determine the particular duties of co-operation and supervision to be assigned to the Protecting Power and, in the event of the absence of any Protecting Power, to decide to whom, and in what manner, its duties should be transferred.
PARAGRAPH 1. -- SPECIAL INTERNATIONAL ORGANIZATION
By the mere fact of choosing a Protecting Power, in accordance with international usage, a belligerent State appoints that Power to carry out the duties laid down in Article 8
and the activities arising thereunder.
The first paragraph of Article 10 gives the High Contracting Parties the option of entrusting this high mission to a special organization. The provision relates only to the duties envisaged by the Convention. It does not in any way affect the right of the Power of Origin to appoint a Protecting Power in the norm way, nor does it affect the normal duties of a Protecting Power, such as safeguarding the diplomatic, commercial and financial interests of the Power of Origin in enemy territory, or the protection of individuals and their property, over and above the protection provided by the Conventions. All that remains a private matter between the Parties concerned.
Accordingly a belligerent Power may very well appoint simultaneously:
(a) a neutral State as ordinary Protecting Power, to do the usual work of
a Protecting Power, other than those duties for which the Convention
(b) by agreement with the enemy, a organization as described in paragraph
1, to perform the duties for which the Convention provides.
The belligerent cannot appoint any organization he pleases. Two conditions must be fulfilled: there must be agreement between both Parties as to the appointment; and the organization appointed must offer every guarantee of ' impartiality ' and ' efficacy '.
What is meant by "impartiality" has been already shown (10), but it is difficult to define here the conditions for "efficacy", since they [p.116] will depend on the nature, extent and degree of localization of the conflict. The guarantees of efficacy are to be sought mainly in the financial and material resources which the organization has at its command, and, even more perhaps, in its resources in qualified staff. Its independence in relation to the Parties to the conflict, the authority it has in the international world, enabling its representatives to deal with the Powers on a footing of equality, and finally its accumulated experience -- all these are factors calculated to weigh heavily in deciding the Parties to agree to its appointment. For in the case considered in paragraph 1, the special organization can only be appointed by agreement; failing such agreement the duties for which the Convention provides fall automatically to the Protecting Powers.
Paragraph 1 is applicable ' at any time '. There are three main possibilities:
(a) In peace-time the High Contracting Parties may conclude and ad hoc
agreement by which the rôle assigned by the Convention to the
Protecting Powers is to be entrusted, in the event of armed conflict,
to a special organization designated by name. In such a case, as soon
as a conflict breaks out between two or more of the High Contracting
Parties, the organization in question will be invested with the
functions arising out of Article 8. The Protecting Powers appointed
by the Parties to the conflict will be ipso facto freed of
responsibility for performing these functions.
Such was the original idea voiced at the Conference of Government Experts in 1947. The agreement regarding the appointment of a special organization need not, however, be necessarily concluded between ' all ' the Powers party to the Convention. It may be the act of some of them only, in which case the special organization will not be invested with the functions arising out of Article 8
except in regard to relations between adversaries who are parties to the agreement. In all other cases the Protecting Powers will continue to be responsible for these functions.
(b) When hostilities first break out the Parties to the conflict, in
appointing their respective Protecting Powers, may agree to have
recourse to a special organization for the application of the
Convention. An agreement of this kind, making over to the special
organization the functions provided for in Article 8
, eo ipso
dispenses the Protecting Powers from the exercise of those functions,
and limits them to the discharge of the other duties which
international usage makes theirs.
[p.117] (c) In the course of the conflict the opposing Parties may
agree for some reason -- in order, for example, to ease the burden on
the Protecting Powers -- to entrust to a special organization that
part of the Protecting Powers' functions arising from the provisions
of the Convention.
It may be noted that in any of these three contingencies the Parties to the conflict are free to entrust to the special organization (if it agrees) the other duties, independent of the Conventions, performed by the Protecting Power. It was not for the Convention to lay down rules on the subject. It is a matter falling within the exclusive competence of the Parties concerned.
The Diplomatic Conference refrained from giving a more precise indication, even by analogy, of the organization to which the paragraph relates. The organization may be one which is specially created for the sole purposes of Article 10, or it may be already in existence. If it does already exist, it may be specialized or general, official or private, international or national. The essential point is that it should be impartial and effective.
PARAGRAPH 2. -- ABSENCE OF PROTECTING POWER
We here come to the actual appointment of a substitute for the Protecting Power. In what circumstances and at what moment does the paragraph become applicable?
The text, as we have seen, was strongly opposed, and even led to reservations (11). It was feared that a Detaining Power might appoint a substitute of its own choice, contrary to the wishes of the Power of Origin which is primarily concerned, by the simple process of inducing the Protecting Power appointed by the Power of Origin to relinquish its functions.
These apprehensions were unfounded. In the first place the text does not speak of "the activities of ' the ' Protecting Power" appointed at the outset of the conflict but of "the activities of ' a ' Protecting Power". We can only repeat the essential point that the Convention does not affect the process of appointment of the Protecting Power, which is governed by international usage. The disappearance, renunciation or disclaimer of the Protecting Power first chosen by the Power of Origin does not in any way deprive the latter of its freedom to appoint another neutral State to take the place of the first, or a [p.118] third to take the place of the second, and so on. These successive States are not "substitutes" for the first Protecting Power. They are Protecting Powers on precisely the same footing as the first Protecting Power. So long as there is a Protecting Power of some sort, and the contending Parties have not taken advantage of the possibility offered by paragraph 1, only Article 8
is applicable. The same thing is true where the Parties to the
conflict have made use of the option given in paragraph 1 and the special organization thus appointed ceases for some reason to function. Its disappearance does not in any way deprive them of the right to appoint, each in his own capacity, a Protecting Power in the normal way. Better still, the Protecting Powers they have appointed to represent them in the ordinary way will in such a case automatically become responsible under Article 8
for the duties provided for in the Conventions.
These considerations, the actual wording of paragraph 2, and the fact that it is the Detaining Power (that is to say, the Power which would appear to be least suitable for the purpose) which is made responsible for ensuring the protection of enemy personnel fallen into its hands, all point to the conclusion that paragraph 2 cannot, and must not, be applied before exhausting all other possibilities of arranging for their protection by means of either a Protecting Power or a special organization -- both of which solutions imply the express consent of the Power of Origin.
In practice this contingency is hardly likely to arise unless the Power of Origin ceases to exist. The Detaining Power could not in such a case be blamed for choosing a substitute without the consent of the Power of Origin. The same argument would hold good if the Power of Origin persistently failed or refused to appoint a Protecting Power.
The Detaining Power is not completely free in the choice of the substitute. It has to "request a neutral State, or such an organization, to undertake..." the duties in question. It cannot therefore appoint an allied Power. The State, if it is to be a State, must be ' neutral. ' It is, of course, possible for a State to be neutral (that is to say not to be involved in the conflict on either side) and at the same time to be bound by a treaty of friendship with the Detaining Power, but its very neutrality would leave it a certain minimum of independence in relation to the Detaining Power. It was hardly possible in the Convention to go into further detail. However, a State which, while keeping out of the conflict, had previously broken off diplomatic relations with the enemies of the Detaining Power would obviously be ineligible.
[p.119] The text leaves no freedom of choice with regard to the organization whose services may be requested. Only one can be meant, if such a on exists. The words "or such an organization" do not mean any organization which offers all guarantees of impartiality and efficacy. They can refer only to the organization mentioned in the previous line as being "provided for in the first paragraph above", that is to say, an organization appointed by previous agreement between the Contracting Parties, and consequently accepted in advance by the Power of Origin.
The neutral State or organization thus appointed by the Detaining Power is not really a Protecting Power. Its appointment is exceptional, and is only made in order to apply the Convention. It is entitled to perform all the duties devolving upon a Protecting Power under the Convention, but no others (12).
PARAGRAPH 3. -- ABSENCE OF A SUBSTITUTE
This is the final stage, in which no organization has been appointed under paragraph 1 and the Power of Origin is unable to appoint a Protecting Power while the Detaining Power, although wishing to apply paragraph 2, has failed to find a neutral State. There are no longer any possible substitutes. It is then that, as a last resort, the Convention calls upon a humanitarian organization.
The Convention in this case no longer uses the words "undertake the functions performed by a Protecting Power", but speaks only of "humanitarian functions". The distinction is logical. There is no longer any question of a real substitute, and a humanitarian organization cannot be expected to fulfil ' all ' the functions incumbent on a Protecting Power by virtue of the Convention. What it is asked to do, in the chaotic conditions that would exist if there were no longer any neutral State, is to undertake at least those activities which bring directly and immediately to the persons protected by the Conventions the care which their condition demands. This distinction has, moreover, the advantage of showing that the humanitarian organization referred to in paragraph 3, unlike a Protecting Power or its substitute, does not act, as it were, as an agent, but rather as a voluntary helper. This is of great importance -- to the International [p.120] Committee of the Red Cross at any rate -- in that it safeguards the independence of that organization which is an
essential condition for its humanitarian work.
The Detaining Power ' must ' request the intervention of a humanitarian organization. Moreover, should such an organization anticipate the Detaining Power's request by spontaneously offering its services, the Detaining Power ' must ' accept them.
The obligation to ask for such services is unconditional. Consequently, a Detaining Power which was justified in declining the offer of services of a particular humanitarian organization would not thereby be relieved of its obligation, but would have to ask for the co-operation of another organization. The same would be true if the first organization which it approached, or which offered its services, ceased to function for any reason.
On the other hand, the obligation to accept the offer of services is qualified by the condition "subject to the provisions of this Article"; and these provisions can only be those of paragraphs 3 and 4. The Detaining Power cannot therefore decline these offers of service unless it has already applied for, and obtained, the co-operation of another qualified humanitarian organization, or unless the organization making the offer fails to furnish "sufficient assurances" as required by paragraph 4.
The Detaining Power is naturally always free to request, and accept, the simultaneous services of several humanitarian organizations.
No indication is given either in paragraph 2 or in paragraph 3 of the time-limit for appointing the different substitutes for the Protecting Power. Two possible situations can be envisaged; the first would occur if the contending parties did not appoint a Protecting Power or could not reach agreement on the appointment. This is the case referred to by the words "When protected persons ' do not ' benefit...". Such a situation could not be allowed to continue for very long and it seems to us that a substitute should be appointed within a period of one month at the most.
The second possibility is that of a Protecting Power ceasing its activities for some reason without another Protecting Power being appointed. That is the contingency referred to in the words "or ' cease ' to benefit". The difficulty of finding a substitute may be greater in such cases, but it is felt that the time-limit should not exceed from six weeks to two months.
[p.121] PARAGRAPH 4. -- REQUISITE QUALIFICATIONS
The Protecting Power is primarily the agent of the Power of Origin, whose interests it safeguards ' vis-à-vis ' the adverse Power. The Convention imposes on it in this capacity humanitarian duties, which it asks the Protecting Power to perform as impartially as possible, but this requirement does not divest the Protecting Power of its primary character as representative of the Power of Origin. In the absence of a Protecting Power, on the other hand, the substitute which takes its place is appointed by the enemy of the Power of Origin. This led to fears being expressed in the course of the discussions at the Diplomatic Conference that the Detaining Power might tend to appoint a neutral State or an organization devoted to its (the Detaining Power's) cause. Hence the desire to bring home to the substitute that, although it has been chosen by the Detaining Power, the procedure is exceptional and adopted only for want of a better alternative; the substitute does not thereby become the agent of the Detaining Power, and is charged by all the Contracting
Parties with loyal co-operation in the application of the Convention in relation to the adversaries of the Detaining Power. Was this reminder essential? It would have no effect on a substitute of deliberate bad faith; but there may be a risk of an honest substitute regarding it as an offensive suspicion. Our own feeling is rather that the paragraph is a weapon to enable the substitute to insist on the Detaining Power granting the means and independence necessary for the performance of its duties with the impartiality required by the Convention.
It must be admitted, however, that to a large extent this clause meets the fears expressed by the authors of the reservation referred to above. A neutral Power or humanitarian organization which is invited by a belligerent Power to discharge the functions of a Protecting Power should make sure, whenever possible, that the Power of Origin has no objection to its appointment. It is of course true, as we have seen above (13), that in most cases a substitute will only be appointed when the Power of Origin is not in a position, or no longer in a position, to express any opinion or to appoint a Protecting Power. The appointment of a Protecting Power might, however, meet with other obstacles. This would occur, for example, if the Detaining Power did not recognize the legitimacy of the Government of the adverse Party. In such cases, the neutral Powers or organizations invited should consult the [p.122] authorities representing the interests of the persons to be protected, even if their consultations were only unofficial.
As for the "sufficient assurances" stipulated, reference should be made to what has been said above concerning paragraph 1. The matter is one on which the Detaining Power will in practice be the sole judge, and, as such, it alone will bear the responsibility for unsatisfactory application of the Convention due to incapacity or lack of impartiality on the part of the substitute which it has called upon or accepted.
PARAGRAPH 5. -- PROHIBITION OF DEROGATIONS
This paragraph, which was added to the draft proposals of the International. Committee of the Red Cross by the Stockholm Conference, but only in the case of the Third Convention, was inserted in all four Conventions by the Diplomatic Conference. Its purpose is to ensure neutral and impartial scrutiny in all circumstances, including cases where one Party to the conflict has become subject to the domination of the other. An Occupying Power, temporarily or finally victorious, will not in future be able to evade the provisions of Article 10 by reaching an agreement with a Government of the enemy State which has fallen under its influence, or has actually been set up by it, to establish a system in which a special substitute, at its beck and call, would in actual fact place the protected persons at its mercy, rendering any sort of supervision illusory. So long as a Detaining Power has protected persons in its charge, no plea of an arrangement with the enemy can be valid. It is bound either to continue to accept the intervention of the Protecting
Power or, if there is no longer a Protecting Power, to provide a substitute.
' Paragraph 6 ' calls for no comment.
It would be idle to deny that Article 10 is not all it might be. In spite of an obvious effort to carry matters to their logical conclusion, the Article remains incomplete and confused. It could hardly be otherwise in view of the difficulty of the subject-matter and the confused nature of the situations with which it deals. Its provisions may, [p.123] perhaps, admit of different interpretations, but rather than go into them here, it would be preferable to consider the positive side of the Article.
Like the two Articles
which precede it, Article 10 supplements and reinforces Article 1
. The Convention is to be respected ' in all circumstances. ' That requirement is so imperative that the absolute undertaking of the Parties to the conflict is not enough. Independent, impartial and effective supervision from outside is also necessary: and where that is impossible, one last opening is provided.
The one thing that matters, the one thing that counts is the principles set forth in Part II on which all the other provisions of the Convention depend. Such is their significance that even war, which is the ' raison d'être ' of the Convention, cannot prevail against them. There may be many interpretations of Article 10; but only one true one -- namely, the one which is best fitted to give practical effect to the provisions of Part II.
* (1) [(1) p.112] See ' Report of the International Committee of
the Red Cross on its activities during the Second World
War, ' Vol. I, Part III, Chapter XIII, pp. 515 ff.;
(2) [(2) p.112] Ibid., Vol. I, Part III, Chapter VII, pp. 352
(3) [(3) p.112] See ' Report on the Work of the Conference of
Government Experts, ' pp. 263-298;
(4) [(4) p.112] The text (Article 8/9/9/9 of the Stockholm
draft), ran as follows: "The Contracting Parties may, at
any time, agree to entrust to a body which offers all
guarantees of impartiality and efficacy the duties imposed
on the Protecting Powers by the present Convention.
Furthermore, if persons protected by the present
Convention 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 body, 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 in the sense of the present Article.";
(5) [(5) p.112] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-B, pp. 346 ff.;
(6) [(1) p.113] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-B, pp. 65-66;
(7) [(1) p.114] See p. 676. See also ' Final Record of the
Diplomatic Conference of Geneva of 1949, ' Vol. II-B, ad
Article 7A, especially pp. 27, 130 and 487;
(8) [(2) p.114] Fifteen delegations have so far made
reservations on this point when signing, ratifying, or
acceding to the Convention. The Czechoslovak reservation
reads as follows: "The Government of the Czechoslovak
Republic will not consider as legal a request by the
Detaining Power that a neutral State or an international
organization or a humanitarian organization should
undertake the functions performed under the present
Convention by the Protecting Powers, on behalf of the
protected persons, unless the Government whose nationals
they are has given its consent";
(9) [(3) p.114] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-B. especially p.
(10) [(1) p.115] See above, pp. 107-108;
(11) [(1) p.117] See above, pp. 112-115;
(12) [(1) p.119] In the Korean War, the Parties to the
conflict, although not bound by the Geneva Conventions of
1949, made known their intention of applying their
principles. No Protecting Power was appointed, however.
The system of supervision established in 1949 was not
tried out, therefore, during that war;
(13) [(1) p.121] See pp. 117-119;
See the Commentary of 2020
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