Treaties, States Parties and Commentaries
  • Print page
Commentary of 2016 
Article 11 : Conciliation procedure
Text of the provision*
(1) In cases where they deem it advisable in the interest of protected persons, particularly in cases of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of the present Convention, the Protecting Powers shall lend their good offices with a view to settling the disagreement.
(2) For this purpose, each of the Protecting Powers may, either at the invitation of one Party or on its own initiative, propose to the Parties to the conflict a meeting of their representatives, in particular of the authorities responsible for the wounded and sick, members of medical personnel and chaplains, possibly on neutral territory suitably chosen. The Parties to the conflict shall be bound to give effect to the proposals made to them for this purpose. The Protecting Powers may, if necessary, propose for approval by the Parties to the conflict, a person belonging to a neutral Power or delegated by the International Committee of the Red Cross, who shall be invited to take part in such a meeting.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None[1]
Contents

A. Introduction
1259  Article 11 lays down the legal basis for the establishment of a ‘conciliation procedure’ in the interest of protected persons. The notion of ‘conciliation’ appears in the marginal title of the provision, which bears no official status,[2] but is not used in the text itself. This characterization of the procedure, however, has been widely used since the adoption of the Convention and has not raised major controversy.[3] The same provision appears, in almost identical terms, in all four of the 1949 Geneva Conventions.[4]
1260  In international law, conciliation was originally conceived as a method of peaceful settlement of disputes between States and has been recognized as such in numerous international treaties and other documents. In this context, conciliation usually involves powers of investigation and active participation in finding a solution to the dispute that is acceptable to all Parties to the procedure. The outcome of the procedure is not binding, the Parties remaining free to accept or not the terms of the settlement.[5]
1261  In the Geneva Conventions, however, the notion of conciliation entails a different procedure. First, it does not necessarily suppose a disagreement between the Parties involved, but may be used, more generally, each time that it is ‘advisable in the interest of protected persons’. Second, the procedural steps foreseen in Article 11 are not exactly the same as those traditionally foreseen in the context of the peaceful settlement of international disputes. The purpose of Article 11 is to determine the conditions for establishing a dialogue between Parties to an international armed conflict. Paragraph 1 invites Protecting Powers to facilitate such a dialogue through their ‘good offices’. Paragraph 2 describes one possible way to proceed, namely the organization of a meeting of the representatives of the Parties to the conflict. Article 11 does not, however, suppose the creation of a panel of experts tasked with examining the dispute and proposing the terms of a settlement, as would be the case under the traditional conciliation procedure. In other words, the mechanisms established under Article 11 may involve less formal diplomatic means, as indicated by the notion of ‘good offices’ in paragraph 1. Thus, despite its marginal title, Article 11 provides for a mechanism that is not identical to the ‘conciliation procedure’ as defined in the framework of international dispute settlement.
1262  Article 11 is part of the compliance mechanisms elaborated in the four Geneva Conventions of 1949, and subsequently in Additional Protocol I of 1977.[6] In the First Convention it appears under the heading ‘General Provisions’. It must be read in relation to Articles 8 and 10 of the Convention,[7] as well as to Article 5 of Protocol I where applicable. While these three provisions define in general terms the role of the Protecting Powers and their substitutes,[8] Article 11 provides some specific detail, focusing on the ‘good offices’ function.
1263  Article 11 is also related to Article 6, which encourages the High Contracting Parties to conclude ‘special agreements for all matters concerning which they may deem it suitable to make separate provision’. The procedure in Article 11 is a tool that may be used to facilitate the conclusion of such agreements between the Parties to the conflict on any question of application or interpretation of the Convention.
1264  Neither common Article 3 nor Additional Protocol II make any mention of conciliation methods to address humanitarian issues in non-international armed conflicts. This does not mean, however, that mechanisms similar to those described in Article 11 may not be used in such situations. Common Article 3(3) encourages the Parties to the conflict to ‘endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention’. This may include the establishment of a conciliation procedure. In addition, the law governing non-international armed conflicts leaves room for conciliation efforts by actors other than the Protecting Powers or their substitutes. Common Article 3(2) provides that the ICRC, or any other impartial humanitarian body, ‘may offer its services to the Parties to the conflict’. This may include lending good offices and facilitating the organization of a meeting of the representatives of the Parties to the conflict, following the model of Article 11.
1265  In practice, the ‘conciliation procedure’, as established under Article 11, has never been used. The main reason for this is that the system of Protecting Powers has almost never been activated since 1949. At the same time, conciliation efforts to improve the situation of victims of armed conflicts were made possible under other mechanisms.
Back to top
B. Historical background
1266  Participants of the Diplomatic Conference of 1949 examined the conciliation procedure within the framework of a more general discussion on the settlement of disputes arising between Parties to international armed conflicts.[9] As summarized by the Rapporteur of the Joint Committee charged with the study of the articles common to all four Conventions, this debate sought to address two main questions:
[I]n the event of a violation of a Convention, how is the injured State to obtain justice? In cases of differences of opinion as to the interpretation of the text, how can the law be declared, and how can a dispute with regard to the interpretation of one of our Conventions be settled by arbitration while the two parties are at war with one another?[10]
1267  The delegations to the Diplomatic Conference studied three proposals foreseeing distinct procedures, namely ‘good offices and consultation’, ‘enquiry and conciliation’ and ‘judicial settlement’.[11] The debate resulted in the adoption of Article 11, which creates a ‘conciliation procedure’ including ‘good offices’, and Article 52, which institutes the ‘enquiry procedure’.[12] The draft provision on judicial settlement was not retained in the Convention; it was adopted instead as a resolution of the Diplomatic Conference.[13]
1268  The ‘conciliation procedure’ in the context of the 1949 Geneva Conventions is largely inspired by Article 87 of the 1929 Geneva Convention on Prisoners of War. This provision required the Protecting Powers to lend their good offices to the belligerents in settling disputes that might occur between them regarding the application of the Convention. For this purpose, Article 87 foresaw the possibility of holding a ‘conference’ of representatives of the belligerents. In its new version of 1949, the procedure was modified, taking elements from Article 83 of the 1929 Convention, which encouraged the belligerents to authorize ‘meetings of representatives of the respective authorities charged with the administration of prisoners of war’ with a view to ensuring the application of the Convention and to facilitating the conclusion of ‘special conventions’. Unlike Article 87, Article 83 did not introduce a procedure for the settlement of disputes but aimed to foster dialogue between the belligerents, whenever necessary, to promote implementation of and respect for the Convention. Article 11 of the 1949 Convention is thus based on a merger of two originally separate and distinct procedures.
1269  Article 83 of the 1929 Convention was also a source for the drafting of Article 6 of the 1949 Convention on ‘special agreements’. Article 83 explicitly provides that meetings of representatives of the Parties to the conflict may be authorized with a view to facilitating the conclusion of such agreements (or ‘special conventions’ in the wording of the 1929 Convention). The historical context thus highlights the connection between Article 11 and Article 6 of the 1949 Convention.
1270  There was little discussion on draft article 11 during the 1949 Diplomatic Conference. The provision was adopted by the participants almost without alteration. The main issue of contention during the debates related to the role that the new provision would confer on the Protecting Powers.[14]
Back to top
C. Overview
1271  Article 11 proposes two ways of facilitating dialogue between the Parties to an international armed conflict in the interest of protected persons. Paragraph 1 focuses on informal diplomacy by allowing the Protecting Powers to lend their ‘good offices’. Paragraph 2 proposes a more formal approach through the organization of a meeting of the representatives of the Parties to the conflict. The Protecting Powers are entitled to propose such a meeting, either at the invitation of one Party or on their own initiative. They may also suggest that third parties, such as a neutral Power or the ICRC, be invited to participate. The Protecting Powers are thus given a central role in ensuring the effective use of the conciliation procedure.
1272  Article 11 is a particular illustration of the role of Protecting Powers established by Article 8.[15] Article 8(1) provides in general terms that the Convention ‘shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict’.[16] The conciliation procedure is one of several tools available to these Powers in fulfilling this task.
1273  In initiating the procedure, each of the Protecting Powers concerned may act individually. The use of the plural for ‘Protecting Powers’ in Article 11(1) does not mean that they must act in concert. While the Geneva Conventions attribute responsibilities to the ‘Protecting Powers’ in a number of other provisions, this does not necessarily suppose common action.[17] While, for instance, Article 8(1) provides that the Convention ‘shall be applied with the cooperation and under the scrutiny of the Protecting Powers’, in the plural, practice has shown that States usually exercise such supervisory functions individually.[18] In addition, Article 11(2) explicitly provides that ‘each of the Protecting Powers’ may propose a meeting of the Parties to the conflict, thus confirming that this procedure may be initiated unilaterally. Of course, it may be preferable to secure the support of all the Protecting Powers concerned in order to ensure the successful outcome of the conciliation.[19]
Back to top
D. Paragraph 1: Good offices of the Protecting Powers
1. Initiating a conciliation procedure
1274  Article 11(1) leaves the Protecting Powers a wide margin of discretion in determining when to initiate a conciliation procedure. It allows them to initiate the procedure whenever ‘they deem it advisable in the interest of protected persons’.
1275  This means, first, that the Protecting Powers may decide, according to their own assessment of the situation, whether the interest of protected persons is indeed at stake. The answer to this question should be positive at least each time that the conciliation procedure is considered as a means to ensure better respect for the provisions of the Convention. The Conventions constitute binding obligations determining the minimum level of protection and assistance that Parties to the Convention undertook to ensure for protected persons. However, the use of the conciliation procedure need not necessarily be limited to instances of non-observance of the Convention. The word ‘interest’ suggests that this procedure may be used to resolve any issue affecting protected persons. It may even be used to address humanitarian issues that are not necessarily covered by the Convention. This interpretation is in line with Article 6(1), which confirms that the High Contracting Parties may conclude special agreements ‘for all matters’ that in their view require further regulation.
1276  Second, even when action is needed in the interest of protected persons, the Protecting Powers must also determine whether the conciliation procedure is indeed the most appropriate mechanism to address the problem. This may not be the case in practice. Depending on the circumstances, it may be that the ICRC or another impartial humanitarian organization is in a better position to meet the needs of protected persons.[20]
1277  The mechanism of Article 11 aims to safeguard the interest of ‘protected persons’. This wording is first a reference to Article 13, which determines which individuals, once wounded or sick, are covered by the provisions of the Convention: they include members of the armed forces and other categories of persons who, while not being members of the armed forces, have the right to prisoner-of-war status upon capture.[21] In addition, the object and purpose of Article 11 suggests that the conciliation procedure may be used in the interest of groups other than those explicitly mentioned in Article 13. This procedure is a tool to ensure better implementation of and respect for the Convention as such, and should not be limited to provisions applying to the groups categorized as ‘protected persons’ under the non-official, marginal title of Article 13. This means that the procedure does not apply only to the ‘wounded and sick’ but extends to all other individuals enjoying protection under the Convention, including medical and religious personnel.[22] Article 11(2) confirms in this regard that conciliation meetings may involve the participation of authorities responsible not only for the ‘wounded and sick’ but also for ‘members of medical personnel and chaplains’. For the same reason, the conciliation procedure should also apply to issues related to the treatment of the dead.[23]
1278  A tension seemingly arises when comparing Articles 11 and 8, which provide, respectively, that the Protecting Powers must act ‘in the interest of protected persons’, on the one hand, and ‘safeguard the interests of the Parties to the conflict’, on the other hand. These provisions are not contradictory, however. The fact that a Protecting Power may represent one of the Parties to the conflict does not mean that it may act against the interest of any person protected under the Convention. Article 8 makes clear that the overarching objective of the system of Protecting Powers is to ensure the proper application of the Convention.[24] This objective would obviously not be achieved if activities undertaken on the basis of Article 8 would be detrimental to protected persons or would lead to disregard for the provisions of the Conventions. 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 of the Power whose interest they safeguard, as well as according them a certain power of initiative. They thus become, as it were, the agents or trustees of all the High Contracting Parties and act in such cases solely according to their own consciences.
Back to top
2. Types of situation benefiting from a conciliation procedure
1279  Various types of situations may benefit from conciliation efforts. Article 11 is flexible enough to adapt in practice to different needs and circumstances. While the 1929 Geneva Convention on Prisoners of War restricted the good offices of the Protecting Powers to ‘dispute[s] between the belligerents’,[25] Article 11 extends such possibility to all cases where the Protecting Powers ‘deem it advisable in the interest of protected persons’. The occurrence of a dispute is therefore no longer a condition for resorting to this procedure. While paragraph 1 refers to the possibility of ‘a disagreement between the Parties to the conflict’, it does so as a specific illustration of a broader category of situations in which the procedure may apply. It clearly states that the conciliation procedure may be used ‘in particular’, but not exclusively, in case of such disagreement. The reason for this change is that Article 11, as explained before, merges two distinct procedures, which were originally inserted in different sections of the 1929 Convention, namely Article 83 (Application of the Convention) and Article 87 (Settlement of disputes). Therefore, while the conciliation procedure in the 1949 Convention may seek to reconcile divergent views between opposing Parties regarding the application or interpretation of the Convention, this need not necessarily be the case.
1280  The mechanism provided for in Article 11 may be used, for instance, to bring humanitarian issues to the attention of certain authorities, to facilitate dialogue between these authorities, and to propose ways to improve the situation of protected persons. The Convention itself foresees a number of situations in which the intervention of a third party or, more particularly, a Protecting Power may help to foster discussion and the conclusion of arrangements between Parties to armed conflicts, even in the absence of a disagreement. Article 23(3), for instance, invites the Protecting Powers (and the ICRC) to ‘lend their good offices’ to facilitate the institution and recognition of hospital zones and localities. The conciliation procedure may also be used to help the Parties to the conflict conclude, for example, arrangements for the search and evacuation of the wounded and sick from the battlefield or besieged areas, for the search and collection of the dead, or for relieving or returning retained medical or religious personnel.[26]
1281  Another innovation introduced in 1949 is the possibility, not provided for in Article 87 of the 1929 Convention, to use the conciliation procedure in case of disagreement on the ‘interpretation’ and not just the ‘application’ of the provisions of the Convention. In some situations, the interest of protected persons may indeed require that Parties to the conflict seek a common understanding of some of the provisions. This innovation was challenged during the drafting process of Article 11. One delegation argued that the conciliation procedure would ‘make the Protecting Powers responsible for functions which are not within their competence, namely the participation in the interpretation of the stipulations of the Convention, and in the solution of differences which may arise between the Parties to the conflict’.[27] It therefore recommended that the procedure be limited to issues related to the ‘application’ of the Convention and not refer to the ‘interpretation’ of the Convention or to the settlement of disagreements.[28] The Diplomatic Conference did not endorse these views, however. It was argued during the debate that the new wording would not create additional responsibilities for the Protecting Powers, as ‘there is no clear line of demarcation between the application and the interpretation of legal or treaty texts’.[29] It was also stressed that, under the new conciliation procedure, the Protecting Powers would act as intermediaries only, and thus would not provide authoritative interpretation of the Convention or impose any solution in case of disagreement between the Parties.[30] Reference to the ‘interpretation’ of the Convention was thus maintained in the final version of the text.
Back to top
3. Lending good offices
1282  Article 11(1) suggests that the Protecting Powers are bound to (‘shall’) lend their good offices when it appears that conciliation between Parties to an international armed conflict is needed to improve the situation of protected persons in a given case. However, this obligation must be put into perspective as its practical application depends, as explained previously, on an independent assessment of the situation by the Protecting Powers. It is only when a Protecting Power believes that conciliation efforts are advisable in the interest of protected persons in a particular situation that it becomes bound to undertake the procedure. The obligation also amounts to explicit recognition of the right of the Protecting Power to initiate the procedure. Thus, exercising this right does not constitute an inappropriate or unfriendly act towards any of the Parties to the conflict. If a Protecting Power decides to offer its good offices, it does so on the basis of a competence that each State has accepted when becoming a Party to the Convention.[31]
1283  The activities that the Protecting Powers are entitled to undertake under Article 11(1) are characterized as ‘good offices’. In international law, good offices are usually defined as a diplomatic tool of peaceful dispute settlement.[32] This notion ‘designates the action by a third party who merely encourages the disputing subjects to resume negotiations or helps them to get together. The third party is not supposed to participate in the negotiations.’[33] This traditional approach, in which the third party is seen only as an intermediary between opposing States, served as a model for the drafting of Article 11 in 1949.[34]
1284  However, practice arising from procedures other than Article 11 indicates that good offices are often used more flexibly, especially when related to humanitarian issues.[35] In a number of instances, good offices have not been limited to activities purely facilitating contacts between opposing Parties, but have involved a more active role by the individual or organism activating the procedure.[36] This role may include diplomatic dialogue to persuade relevant authorities to respect their obligations, or any form of assistance in finding a suitable framework for resolving the issue at stake.[37] As expressed by an observer of UN diplomatic activities, good offices include all kinds of ‘informal contacts and friendly suggestions made as far as circumstances allow’.[38]
1285  Taking into account this evolution, as well as the humanitarian purpose of Article 11, reference to ‘good offices’ in paragraph 1 should not be understood restrictively. Activities undertaken by the Protecting Powers on the basis of this provision require a flexible approach allowing for the use of any diplomatic initiatives that may serve the interest of protected persons. The Protecting Powers have the possibility not only of acting as intermediaries between opposing Parties, but also of submitting concrete proposals to them, whenever necessary, with a view to facilitating agreed solutions. This proactive role is confirmed and illustrated in Article 11(2), which authorizes each Protecting Power to propose ‘on its own initiative’ the organization of a meeting of the representatives of the Parties to the conflict. Moreover, the marginal title of Article 11, although not formally binding, further supports this view. Characterizing the procedure as ‘conciliation’ suggests that the Protecting Powers are expected to play a role that goes beyond the functions traditionally understood as ‘good offices’.
1286  Whatever the precise activities undertaken in this framework or the possible outcome of the procedure, the key characteristic of ‘good offices’ is that the Protecting Powers may only propose, and not impose, any solution to the Parties.[39] This was also noted during the 1949 Diplomatic Conference.[40]
Back to top
4. Purpose of the conciliation procedure
1287  While Article 11 provides that the good offices must be lent ‘with a view to settling the disagreement’, the procedure is not limited to this purpose. As explained earlier, the application of this provision does not necessarily require a ‘disagreement’ between the Parties to the conflict. Arrangements may be needed, for example, to clarify conditions for the practical implementation of the Convention, which does not necessarily mean that the States concerned have opposing views in this respect. Thus, the Protecting Powers may lend their good offices not only with a view to settling disagreements between the Parties, but, more generally, each time ‘they deem it advisable in the interest of protected persons’.
Back to top
E. Paragraph 2: Meeting of the representatives of the Parties to the conflict
1. Purpose of the meeting
1288  Article 11(2) describes a more formal way of operationalizing the ‘conciliation procedure’. It suggests practical conditions for the organization of a meeting of the representatives of the Parties to the conflict. Such a meeting shares the same objective as the good offices foreseen in paragraph 1, namely to safeguard the interest of protected persons. While the wording ‘[f]or this purpose’ at the beginning of paragraph 2 may be interpreted as referring to the last part of paragraph 1, i.e. that the good offices must be lent ‘with a view to settling the disagreement’, the conciliation procedure, as already explained, does not necessarily require divergent views between the Parties to an international armed conflict. These meetings may thus aim to address any issue in the interest of protected persons that must be discussed by the Parties, even in the absence of a disagreement.
Back to top
2. Initiating the meeting
1289  Article 11(2) foresees two ways of initiating the procedure. According to the first, each of the Protecting Powers may propose a meeting ‘at the invitation of one Party’. While the text is not perfectly clear on this point, the historical background of the provision would indicate that this wording refers to a Party ‘to the conflict’ rather than to a Party ‘to the Convention’. Article 83(3) of the 1929 Convention was less ambiguous in this regard, as it provided that those entitled to initiate the procedure were the ‘belligerents’. Nothing in the preparatory work for the 1949 Convention suggests that the participants of the Diplomatic Conference intended to modify the rule when they decided to replace the word ‘belligerents’ by the word ‘Party’. In addition, the Convention, when referring to its States Parties, always uses the full expression ‘High Contracting Party’, and not the word ‘Party’ by itself. There is no reason why Article 11(2) would be an exception in this regard. The text makes it clear that the initiative may come from ‘one’ Party only. While for political or practical reasons it may be preferable to involve all Parties concerned in the proposal, this is not a legal requirement.
1290  The second option for a Protecting Power is to propose a meeting ‘on its own initiative’. The prior request of a Party to the conflict is thus not a prerequisite. Moreover, Article 11(2) specifies that ‘each’ of the Protecting Powers is entitled to exercise this competence. This means that the proposal may be made unilaterally, without the accord of other Protecting Powers.
1291  While Article 11(2) focuses on the organization of a meeting of the Parties to the conflict, it also makes clear that this mechanism is not the only option. It provides that the Protecting Powers ‘may’ propose such a meeting, which implies that other methods are also possible, if more appropriate in the prevailing circumstances. The Protecting Powers thus enjoy a margin of discretion in deciding not only whether the conciliation procedure should be used, but also which specific measure should be proposed in the interest of protected persons.[41]
1292  Article 11(2) does not indicate any specific time for initiating the procedure. Unlike Article 83(3) of the 1929 Geneva Convention on Prisoners of War, which stated that the meetings were to be organized ‘at the commencement of hostilities’, the 1949 Convention is silent on this point. The Protecting Powers are thus free to activate the procedure at any time. As already stated, the interest of protected persons may require concerted measures, not only at the beginning of the conflict, for instance for the creation of hospital zones and localities,[42] but also at any time thereafter, including possibly once the conflict has ended.[43]
Back to top
3. Parties’ representatives in the meeting
1293  While the meeting foreseen in Article 11(2) must involve the participation of ‘representatives’ of the Parties to the conflict, the provision does not specify who those persons should be. The wording used in this paragraph, however, is broad enough to cover all kinds of ‘representatives’ from different spheres of the State, as long as they are entitled to express the views of their government in their respective fields of responsibility. It is also conceivable that they include members of non-State organisms, such as medical or religious associations, with particular expertise in the issues at hand and duly authorized by their government to participate in the meeting. In order to ensure that different perspectives are taken into account, the composition of the meeting should be of mixed gender and, ideally, include representatives of diverse backgrounds.[44]
1294  The level of participation will depend on the nature of the issue and the possible outcome of the meeting. If the issue relates to specific situations and may be solved through ad hoc arrangements, for instance the evacuation of wounded and sick combatants from the battlefield, the most appropriate persons to participate may be local military commanders.[45] If the interest of protected persons requires the conclusion of more general and formal agreements, it may be necessary to ensure the participation of representatives empowered to negotiate and adopt such agreements.[46]
1295  Article 11(2) suggests that the ‘representatives’ may include ‘in particular … authorities responsible for the wounded and sick, members of medical personnel and chaplains’. The words ‘in particular’ mean that the list is not exhaustive but rather illustrative. The naming of these authorities is the only part of this article which is not identical in the four Conventions. The reason for this is that the protected persons to whom it relates are different in each Convention, so the scope of the article is adapted accordingly.[47] Should the need arise, persons in charge of the search for and management of the dead could also be included.
Back to top
4. Venue of the meeting
1296  With respect to the venue, Article 11(2) suggests that the meeting take place ‘possibly on neutral territory suitably chosen’.[48] This option is not mandatory and the Parties concerned may decide otherwise. The territory of a neutral country may be appropriate when the procedure involves lengthy discussions on general questions of interpretation or application of the Convention. The evocation of this possibility is largely the result of experience gained during the First World War, when special agreements on the treatment of prisoners of war and other issues of a humanitarian nature were negotiated and adopted thanks to the diplomatic efforts and on the territory of neutral States.[49] However, when specific humanitarian problems require ad hoc solutions, less formal meetings in the area where hostilities are taking place may be more appropriate.
Back to top
5. Obligation to ‘give effect’ to the proposal of a meeting
1297  Article 11(2) provides that the Parties to the conflict ‘shall be bound to give effect to the proposals made to them’ by a Protecting Power for the purpose of organizing a meeting of representatives. This means that the Parties are not allowed to ignore the proposal; they have a legal obligation (they ‘shall be bound’) to respond. This also supposes that they must at least accept to participate in the meeting. Failing that, the invitation would be without ‘effect’. The procedure of Article 11(2) may thus be activated automatically, as the initiative and organization of the meeting as such does not suppose the consent of the Parties to the conflict.
1298  However, the obligation to ‘give effect’ to the proposal of a meeting does not mean that the Parties are bound to accept the outcome of the discussions. The very nature of conciliation supposes that any decision that might result from the procedure must be agreed by the Parties. The Protecting Power may formulate recommendations but can in no way impose binding conclusions.
1299  The drafting history of Article 87 of the 1929 Geneva Convention on Prisoners of War also supports this view. As explained in section B, this provision was the main source of inspiration for the drafting of common Article 11 of the 1949 Geneva Conventions (Article 12 of the Fourth Convention). During the 1929 Diplomatic Conference, the representative of the ICRC, referring to the possibility of holding conferences of representatives of the Parties to the conflict on the initiative of the Protecting Powers, stated that ‘[l]es belligérants ne sont tenus que de se rendre à ces réunions; la Convention ne peut leur imposer quoi que ce soit en ce qui concerne ce qui serait décidé dans ces réunions’ (‘The belligerents are bound only to attend these meetings; the Convention cannot impose on them any decision whatsoever reached during these meetings.’).[50]
Back to top
6. Participation of a neutral Power or the ICRC
1300  The last sentence of Article 11(2) mentions the possible participation of a neutral Power or the ICRC in the meeting. As indicated by the wording of the provision, the Protecting Powers are not bound to invite these other actors, but will do it only if they deem it ‘necessary’. In addition, such participation is subject to the approval of the Parties to the conflict. The Protecting Powers are allowed to ‘propose’, but not impose, the participation of third parties in the meeting. The wording of the provision (‘shall be invited to take part’) also indicates that the neutral State concerned or the ICRC is not obliged to respond positively to the invitation.[51]
1301  Article 11(2) does not specify the purpose of the invitation addressed to the neutral Power or the ICRC. There are indeed a variety of reasons why the presence of these actors may be beneficial. The Convention itself mentions some of these reasons, when it explicitly requires the involvement of a neutral country in safeguarding the interest of protected persons. It will obviously be ‘necessary’, for instance, to ensure the participation of a neutral country in the meeting if the discussion is aimed at organizing the reception or internment of protected persons on its territory.[52] This will also be the case if the neutral country is expected to play a decisive role in the nomination of the ‘Special Commissions’ in charge of supervising hospital zones and localities.[53] However, nothing precludes a neutral State from participating in the meeting for other reasons not related to specific provisions of the Convention, as long as this is deemed necessary in the interest of protected persons.
1302  Reasons for inviting the ICRC to the meeting are related to its diverse activities for the victims of armed conflict, as determined by its mandate and mission.[54] Parties to the conciliation procedure may wish to solicit the ICRC’s operational expertise or to entrust it with a role in the implementation of the agreement adopted as a result of the procedure. If, for instance, the purpose of the meeting is to conclude a local arrangement to allow the removal, exchange and transport of the wounded, sick or dead left on the battlefield,[55] the Parties may decide to invite the ICRC to carry out this task.
1303  The ICRC may also be invited to the meeting to share its legal expertise on questions related to the application or interpretation of the Convention, as foreseen in Article 11(1). It is one of the main roles of the ICRC, recognized by the Statutes of the International Red Cross and Red Crescent Movement, to work for the faithful application, understanding and dissemination of international humanitarian law.[56]
1304  The question arises whether third parties other than those explicitly mentioned in Article 11(2) may be invited to participate in the meeting. Given that such participation would be subject anyway to the agreement of the Parties to the procedure, this question should be answered affirmatively. Nothing in Article 11(2) suggests that the reference to a neutral Power or the ICRC was meant to be exhaustive. On the contrary, the object and purpose of this provision suggests that the Protecting Powers are entitled to propose any other participant, as long as such proposal may serve the interest of protected persons. Article 11(2) provides guidance for the organization of the meeting, but does not prohibit other avenues, on condition that the Parties to the procedure have given their agreement. Examples of possible participants other than those mentioned in Article 11(2) are representatives of the United Nations, other intergovernmental organizations, third States, non-governmental organizations or independent experts.
Back to top
F. Developments since 1949
1305  The mechanism established under Article 11 has to date never been used.[57] During the First World War, a number of meetings of representatives of Parties to the conflict were organized on neutral territory and resulted in the conclusion of special agreements on various humanitarian issues, such as the repatriation of seriously sick or wounded prisoners of war.[58] However, this experience has not been repeated since.
1306  The non-use of the conciliation procedure is a direct consequence of the lack of effectiveness of the system of Protecting Powers. Protecting Powers have been appointed on only five occasions since the adoption of the Geneva Conventions in 1949[59] and they have never had the opportunity to apply their formal competence based on Article 11. However, States may also lend their good offices outside the specific framework of Article 11, i.e. even if they are not formally designated as Protecting Powers.
1307  Furthermore, Article 11 does not preclude other actors, nominated as substitutes for the Protecting Powers, from resorting to the conciliation procedure whenever authorized by the Convention.[60] However, this alternative has never been applied in practice.[61]
1308  This problem is also related to the particular context in which the conciliation procedure is supposed to be implemented. It is indeed extremely difficult to convince States, once they are opposed in an armed conflict, to take an active part in a conciliation procedure and reach agreement on humanitarian issues.[62] The fact that they were not able to settle their original dispute through peaceful means would suggest that room for diplomatic dialogue during the conflict is limited.
1309  The lack of effectiveness of the procedure set down in Article 11 does not mean, however, that good offices are not a relevant means of safeguarding the interest of protected persons. On the contrary, a number of actors other than the Protecting Powers are entitled to and do resort to such means for humanitarian purposes. Their activities extend both to international and non-international armed conflicts.
1310  It is one of the ICRC’s functions to act as a neutral intermediary to provide support to persons in need of protection and assistance. To this end, the ICRC may offer its good offices to the Parties to the conflict to facilitate the settlement of disagreements or the conclusion and implementation of arrangements benefiting protected persons. In practice, the ICRC accepts to play this role only if it is in the interest of the victims of the conflict and with the consent of all the Parties concerned.[63]
1311  The ICRC has lent its good offices for a variety of purposes, such as ensuring respect for international humanitarian law beyond the rules formally binding the Parties to the conflict,[64] creating hospital and safety zones and localities,[65] concluding truces to allow the evacuation of victims of armed conflicts from combat zones,[66] facilitating the passage of relief supplies to besieged areas,[67] and facilitating the release and repatriation of prisoners of war.[68]
1312  The United Nations, other intergovernmental and non-governmental organizations and individual States may also play a key role in bringing Parties to armed conflicts together to discuss humanitarian issues. Diplomatic dialogue is a tool that the High Contracting Parties to the Geneva Conventions of 1949 may wish to call upon, either individually or collectively, to fulfil their obligation to ‘ensure respect’ for the Conventions as required by common Article 1.[69]
Back to top
Select bibliography
Boutruche, Théo, ‘Good offices, Conciliation and Enquiry’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 561–574.
Bugnion, François, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, pp. 480–493, 515–516, 692–696, 744–763 and 845–910.
Cot, Jean-Pierre, ‘Conciliation’, version of April 2006, Max Planck Encyclopedia of Public International Law, Oxford University Press, http://opil.ouplaw.com/home/EPIL.
Coulibaly, Hamidou, ‘Le rôle des Puissances protectrices au regard du droit diplomatique, du droit de Genève et du droit de La Haye’, in Frits Kalshoven and Yves Sandoz (eds), Implementation of International Humanitarian Law/Mise en œuvre du droit international humanitaire, Martinus Nijhoff Publishers, Dordrecht, 1989, pp. 69–78.
Franck, Thomas M. and Nolte, Georg, ‘The Good Offices Function of the UN Secretary-General’, in Adam Roberts and Benedict Kingsbury (eds), United Nations, Divided World: The UN’s Roles in International Relations, 2nd edition, Oxford University Press, 1993, pp. 143–182.
Frick­Cramer, Renée-Marguerite, ‘Le Comité international de la Croix­Rouge et les Conventions internationales pour les prisonniers de guerre et les civils’, Revue internationale de la Croix­Rouge, Vol. 25, No. 293, 1943, pp. 386–402.
Heintze, Hans-Joachim, ‘Protecting Power’, version of July 2009, Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com.
Lapidoth, Ruth, ‘Good Offices’, version of December 2006, Max Planck Encyclopedia of Public International Law, Oxford University Press, http://opil.ouplaw.com/home/EPIL.
Malanczuk, Peter, Akehurst’s Modern Introduction to International Law, 7th edition, Routledge, London, 1997, pp. 276–279.
Mégevand, Béatrice, ‘Between Insurrection and Government – ICRC action in Mexico’, International Review of the Red Cross, Vol. 35, No. 304, January-February 1995, pp. 94–108.
O’Keefe, Roger, The Protection of Cultural Property in Armed Conflict, Cambridge University Press, 2006, p. 126.
Pěchota, Vratislav, The Quiet Approach: A Study of the Good Offices Exercised by the United Nations Secretary-General in the Cause of Peace, United Nations Institute for Training and Research, New York, 1972, pp. 13–18.
Ramcharan, Bertrand G., Humanitarian Good Offices in International Law: The Good Offices of the United Nations Secretary-General in the Field of Human Rights, Martinus Nijhoff Publishers, The Hague, 1983.
Sassòli, Marco, Bouvier, Antoine A. and Quintin, Anne, How Does Law Protect in War?, 3rd edition, ICRC, Geneva, 2011, Vol. I, pp. 386–387, and Vol. III, pp. 1713–1721.

1 - At signature, Hungary entered the following reservation: ‘The Government of the Hungarian People’s Republic cannot approve the provisions of Article 11 of the Wounded and Sick, Maritime Warfare and Prisoners of War Conventions and of Article 12 of the Civilians Convention, according to which the competence of the Protecting Power extends to the interpretation of the Convention.’ (see United Nations Treaty Series, Vol. 75, 1950, p. 436). The reservation was confirmed at the time of ratification (see United Nations Treaty Series, Vol. 198, 1954, pp. 384, 386, 388 and 390) but withdrawn in 2000 (see United Nations Treaty Series, Vol. 2117, 2003, pp. 301, 303, 305 and 307).
2 - The marginal titles were drafted by the depositary following the adoption of the Convention.
3 - During the drafting process of Article 11, one delegation argued, however, that the characterization of the procedure as a ‘conciliation’ was not appropriate; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 23; see also Vol. II-A, p. 34.
4 - See Second Convention, Article 11; Third Convention, Article 11; and Fourth Convention, Article 12. A very similar procedure also exists in Article 22 of the 1954 Hague Convention for the Protection of Cultural Property, as well as in Article 35 of its Second Protocol of 1999.
5 - The Institut de Droit International defines conciliation as ‘a method for the settlement of international disputes of any nature according to which a Commission set up by the Parties, either on a permanent basis or on an ad hoc basis to deal with a dispute, proceeds to the impartial examination of the dispute and attempts to define the terms of a settlement susceptible of being accepted by them, or of affording the Parties, with a view to its settlement, such aid as they may have requested’ (Institut de Droit International, International Conciliation, Session of Salzburg, 1961, Article 1 (official translation of the authoritative French text). For a presentation of the conciliation procedure as a method of peaceful settlement of international disputes, see Malanczuk, pp. 279–281, and Cot.
6 - This system foresees a certain number of mechanisms, such as the Protecting Powers and their substitutes (common Article 8 and 10 (Article 9 and 11 in the Fourth Convention) and Additional Protocol I, Article 5), the ICRC or any other impartial humanitarian organization (common Article 9 (Article 10 in the Fourth Convention)), the enquiry procedure (First Convention, Article 52; Second Convention, Article 53; Third Convention, Article 132; and Fourth Convention, Article 149) and the International Humanitarian Fact-Finding Commission (Additional Protocol I, Article 90).
7 - Respectively, Second Convention, Articles 8 and 10; Third Convention, Articles 8 and 10; and Fourth Convention, Articles 9 and 11.
8 - See Article 8(1): ‘The present Convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict.’
9 - See Sixth Report drawn up by the Special Committee of the Joint Committee, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 119–120, at 119, and Report drawn up by the Joint Committee and presented to the Plenary Assembly, ibid. pp. 128–133, at 131.
10 - See Report drawn up by the Joint Committee and presented to the Plenary Assembly, ibid. p. 131.
11 - See Sixth Report drawn up by the Special Committee of the Joint Committee, ibid. pp. 119–120.
12 - For further details, see the commentary on Article 52.
13 - Resolution 1 reads: ‘The Conference recommends that, in the case of a dispute relating to the interpretation or application of the present Conventions 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’; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, p. 361. Unlike the provisions inserted in the Convention, the resolution has no legally binding effect. However, it constitutes a pressing recommendation addressed to the States Parties. For a discussion leading to this resolution, see ibid. Vol. II-B, pp. 365–371. See also Paul de La Pradelle, La Conférence diplomatique et les nouvelles Conventions de Genève du 12 août 1949, Les Éditions internationales, Paris, 1951, pp. 277–284.
14 - See section D.1.
15 - The compatibility of the two articles was challenged during the drafting process, the delegate of the USSR arguing that these provisions were contradictory. As stressed by the Rapporteur of the Joint Committee, it was considered, however, that the wording of draft article 8 was general enough to include conciliation functions by the Protecting Powers. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 354 (Colonel Du Pasquier (Switzerland), Rapporteur of the Joint Committee).
16 - See the commentary on Article 8, section E as well as Additional Protocol I, Article 5(2). See further Bugnion, pp. 845–910; Coulibaly, pp. 69–78; and, in general, Heintze.
17 - See Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, pp. 86–103. Similarly, visits to prisoners of war or civilian internees by ‘representatives or delegates of the Protecting Powers’, as foreseen in Article 126 of the Third Convention and Article 143 of the Fourth Convention, respectively, do not suppose the participation of all the Protecting Powers designated in relation to the conflict concerned.
18 - See the commentary on Article 8.
19 - See Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 127.
20 - See Article 9. Another option under Additional Protocol I is the International Humanitarian Fact-Finding Commission, which is empowered to make enquiries into alleged serious violations of the Geneva Conventions of 1949 or their Additional Protocol I of 1977 and to ‘facilitate, through its good offices’ an attitude of respect for these instruments; see Additional Protocol I, Article 90.
21 - For further details, see the commentary on Article 13.
22 - See, especially, Articles 24–27. In this sense, see Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 371.
23 - See Article 17.
24 - The first sentence of Article 8(1) reads: ‘The present Convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict’.
25 - Geneva Convention on Prisoners of War (1929), Article 87(1).
26 - See Articles 15(2)–(3), 28(3) and 31(2). Other provisions foreseeing agreements between the Parties to the conflict to extend or implement protections under the First Convention include Articles 6, 36(2), 37(3) and 52.
27 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 353 (USSR). See also the reservation entered by Hungary upon signature of the 1949 Geneva Conventions (fn. 1).
28 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 353 (USSR).
29 - See ibid. p. 353 (Colonel Du Pasquier (Switzerland), Rapporteur of the Joint Committee).
30 - See ibid. p. 354. Along the same line, see also the views expressed by Claude Pilloud, Director of the ICRC, in ‘Les réserves aux Conventions de Genève de 1949’, Revue internationale de la Croix-Rouge, Vol. 39, No. 464, 1957, pp. 409–437, at 418, and ‘Reservations to the Geneva Conventions of 1949’, International Review of the Red Cross, Vol. 16, No. 180, March 1976, pp. 107–124, at 121.
31 - See United Kingdom, Manual of the Law of Armed Conflict, 2004, para. 16.7: ‘Good offices and mediation by neutral states for the purpose of settling differences are friendly acts.’ This rule was also explicitly recognized in the context of the peaceful settlement of international disputes; see Hague Convention (I) (1907), Article 3, para. 3.
32 - See Hague Convention (I) (1907), Articles 2–8.
33 - Lapidoth, para. 1. See also Malanczuk, p. 276: ‘A third party (as a “go-between”) is said to offer its good offices when it tries to persuade disputing states to enter into negotiations; it passes messages and suggestions back and forth and when the negotiations start, its functions are at an end.’
34 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 354 (Colonel Du Pasquier (Switzerland), Rapporteur of the Joint Committee).
35 - See Ramcharan, in particular pp. 35–51.
36 - See Lapidoth.
37 - This practice was particularly in relation to the role of the UN Secretary-General; see Pěchota, pp. 13–18. See also Ramcharan, pp. 35–36, and Franck/Nolte, pp. 143–182.
38 - Pěchota, p. 2.
39 - See also Hague Convention (I) (1907), Article 6.
40 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 23 (Monaco).
41 - This was stressed during the drafting of Article 11. The Rapporteur of the Joint Committee argued that the good offices of a Protecting Power could lead not only to the meeting foreseen in paragraph 2, but also to alternative procedures, such as ‘the nomination of a person who could act as an arbitrator’; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 354.
42 - See Article 23.
43 - For instance, to facilitate transportation of the dead to their home country, as foreseen in Article 17(3).
44 - See UN Security Council, Res. 1325, 31 October 2000, in particular, paras 1 and 8.
45 - For further details, see the commentary on Article 15.
46 - A number of such agreements were concluded during the First World War to clarify certain questions related to the treatment of prisoners of war and other problems of a humanitarian nature; see Frick­Cramer, pp. 388–389.
47 - On this point, the other Geneva Conventions read: ‘authorities responsible for the wounded, sick and shipwrecked, medical personnel and chaplains’ (Second Convention, Article 11); ‘authorities responsible for prisoners of war’ (Third Convention, Article 11); and ‘authorities responsible for protected persons’ (Fourth Convention, Article 12).
48 - Neutral territory refers to the territory of a neutral State. For a discussion of the concept of neutral State, see the commentary on Article 4, section C.1.
49 - These included Denmark, the Netherlands, Sweden and Switzerland; see Frick­Cramer, p. 389.
50 - Proceedings of the Geneva Diplomatic Conference of 1929, p. 520 (unofficial translation).
51 - The ICRC retains at all times its discretion, based on its own criteria of engagement, to decide whether it will undertake an activity in a given situation; see the commentary on Article 9, para. 1133.
52 - See Article 4 and its commentary, in particular section C.2.b.
53 - See Draft agreement relating to hospital zones and localities, Annex I to the First Convention, Article 10.
54 - The mandate and mission of the ICRC are based mainly on the 1949 Geneva Conventions and their Additional Protocols of 1977, the Statutes of the ICRC, the 1986 Statutes of the International Red Cross and Red Crescent Movement, and the resolutions of the International Conferences of the Red Cross and Red Crescent.
55 - See Article 15(2).
56 - See Statutes of the International Red Cross and Red Crescent Movement (1986), Article 5(2)(c) and (g).
57 - The similar conciliation procedure provided for in the 1954 Hague Convention for the Protection of Cultural Property and its 1999 Second Protocol has also remained dormant to this day; see O’Keefe, p. 126.
58 - For further details, see Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, pp. 128–129, and Frick­Cramer, pp. 388–389.
59 - See the commentary on Article 8, para. 1115; see also Bugnion, p. 864.
60 - See Article 10(1).
61 - See the commentary on Article 10, section F.3.
62 - See Sassòli/Bouvier/Quintin, Vol. I, pp. 386–387.
63 - This role is principally based on the 1949 Geneva Conventions and the 1986 Statutes of the International Red Cross and Red Crescent Movement (see, in particular, Articles 3(2) and 9 of the First Convention and Article 5(2)(d) and (3) of the Statutes). For a more detailed analysis of the legal basis and practice of the ICRC’s offers of services, see Bugnion, pp. 403–465. The role of the ICRC, however, is not exclusive. The Convention clearly states that any other impartial humanitarian organization may undertake humanitarian activities, subject to the agreement of the Parties to the conflict concerned; see Articles 3(2) and 9.
64 - When civil war broke out in Yemen in 1962, for instance, the ICRC obtained commitments from both Parties to the conflict to respect the main provisions of the 1949 Geneva Conventions; see Bugnion, p. 414. See also Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia (1991), following discussions held under the auspices of the ICRC, reproduced in Sassòli/Bouvier/Quintin, pp. 1713–1717, and Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina (1992), following discussions held at the invitation of the ICRC, reproduced in Sassòli/Bouvier/Quintin, pp. 1717–1721.
65 - See Bugnion, pp. 480–483 and 748–763.
66 - See ibid. pp. 484–493 and 744–748. Practice shows that Parties to armed conflict often request the ICRC to evacuate wounded, sick or dead persons, in which case the ICRC obtains assurances from both sides that it will have sufficient security to carry out this task.
67 - See ibid. pp. 515–516.
68 - See ibid. pp. 692–696. In relation to these activities, Bugnion explains, at 694: This is therefore an essentially diplomatic task in which good offices are combined with the role of conciliator, a role which the ICRC has played in many conflicts since the First World War. Although it was mostly performed off stage and records of it, if any, are hard to trace, in some cases it was acknowledged more officially and the belligerents themselves invited the ICRC to help them to find a solution. For an example of the ICRC’s use of good offices in the context of a non-international armed conflict, see Mégevand, pp. 94–108.
69 - See also the commentary on common Article 1, section E.3.d.