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Commentary - Art. 8. Chapter I : General provisions
    [p.60] ARTICLE 8. -- PROTECTING POWERS


    This provision, taken from Article 86 of the 1929 Convention relative to the Treatment of Prisoners of War, was introduced into all four Conventions of 1949. It makes compulsory scrutiny which was only optional under the 1929 Convention.
    The Protecting Power is, of course, a neutral State instructed by another State to safeguard its interests and those of its nationals in relation to its adversaries (1).

    PARAGRAPH 1. -- GENERAL ROLE OF THE PROTECTING POWERS

    1. ' First sentence. -- "The present Convention shall be applied with
    the co-operation..." '

    This is a command, The English text, which is authentic equally with the French, makes it absolutely clear (2).
    [p.61] The command is addressed in the first instance to the Parties to the conflict, who are bound to accept the co-operation of the Protecting Power; if necessary they must demand it. This is fully established by the clear intention, constantly manifested at the Diplomatic Conference, of establishing stricter control and making it obligatory.
    The command is also addressed to the Protecting Power, however, if the latter is a party to the Convention. By the very fact of agreeing to act as Protecting Power on behalf of one of the Parties, it takes on a higher mandate which is conferred upon it by all the States party to the Convention (3). It is obliged to participate, so far as it is concerned, in the application of the Convention.
    What does the rôle of the Protecting Power involve, and what should be understood by "co-operation" and "scrutiny"?
    Articles 8 and 10 are not the only provisions which mention the intervention of the Protecting Power or its substitute. Express reference is made to it in three other provisions: Article 11 (conciliation procedure) and Article 49 (translations), which are common to all four Conventions, as well as Article 19, paragraph 2 (forwarding of information regarding wounded, sick and shipwrecked persons).
    The present Convention refers less frequently than the others to action by the Protecting Power in specific instances. The First Convention contains three provisions of its own in which the Protecting Power is mentioned, whereas the Third and Fourth Conventions contain respectively twenty-seven and thirty-three such provisions.
    The following question therefore arises: do the co-operation and the scrutiny laid down in principle in Article 8 consist solely of the activities referred to in the Articles listed above, or is the Protecting Power assigned a general mission in Article 8 giving it the right -- and the duty -- to intervene in cases other than those particular ones?
    [p.62] The reply to this question emerges clearly enough from the general desire, expressed during the discussions at the Diplomatic Conference, to establish a genuine supervisory organization with wide powers (4). The answer emerges also from the text of paragraph 3. Here the Conference deliberately replaced the original wording ("their mission ' as defined ' in the present Convention") by the words "their mission ' under ' the present Convention", thus emphasizing that there has been no attempt at giving an exhaustive "definition" of the duties of the Protecting Power.
    The first sentence of Article 8 thus entitles a Protecting Power to undertake any intervention or initiative which may enable it to verify the application of any provision of the Convention or help to improve its application. All the occasions upon which a Protecting Power would have to intervene cannot be envisaged here nor can the conditions under which such interventions take place. They will be determined by the circumstances of the conflict and the means at the disposal of the Protecting Power.
    As has already been pointed out, the Protecting Power's duties under the Second Convention will be much less onerous than under the Third and Fourth Conventions; but there are some Articles which, although they do not mention the Protecting Power by name, are particularly liable to lead to intervention by the latter.

    They are the following:

    Articles 12 and 13 : Supervision of the treatment given to the wounded,
    sick and shipwrecked.

    Article 20 : Supervision of the rules regarding burial at sea.

    Article 31, par. 4 : Control and search of hospital ships.

    Article 37 : Supervision of the condition and treatment of religious,
    medical and hospital personnel in enemy hands. Supervision of
    the landing of such personnel.

    [p.63] Article 38 : Supervision of ships chartered for the conveyance of medical
    equipment.

    Article 50 : Co-operation in the institution of enquiries concerning
    alleged violations of the Convention.

    2. ' Second and third sentences. -- Executive agents '

    All members of the diplomatic and consular staff of the Protecting Power are ipso facto entitled, in their capacity as official representatives of their Government, to engage in the activities arising out of the Convention. This rule therefore covers not only members of the staff who were occupying their posts when hostilities broke out, but also those appointed later. It makes no difference whether they are employed solely on the work of the Protecting Power as such, or whether they carry out other diplomatic or consular duties as well. No formalities are required except those which their diplomatic or consular rank would entail in normal times (' agrément, exequatur '). Special consent is required only for auxiliary delegates specially appointed by the Protecting Power, who do not have diplomatic or consular status. This would apply in particular to persons recruited by the Protecting Power in the country in which it was to act.

    PARAGRAPH 2. -- FACILITIES

    This provision was also taken from Article 86 of the 1929 Prisoners of War Convention and calls for little comment. In Article 86 , it concerned only camp visits. Here it is placed among the general Articles and applies to ' all ' the activities of the Protecting Power.

    PARAGRAPH 3. -- LIMITS

    This paragraph is the result of a compromise, adopted to give partial satisfaction to the supporters of an amendment which, in [p.64] the opinion of the majority, was too restrictive and might virtually paralyse any activity on the part of the Protecting Power. While trying to give the fullest possible scope to the needs of humanity, the delegates at the Conference could not ignore the requirements of national security (5).
    Although it permits no sanctions other than the withdrawal of ' exequatur ' or ' agrément ' from the official at fault, this clause none the less serves as a solemn reminder to the Protecting Power of the nature of its mission, which is to co-operate with the belligerent Power as the party primarily responsible for the application of the Convention. The Protecting Power is not merely entrusted with the duty of exercising the right of scrutiny as the authorized agent of one of the Parties to the conflict. It must also ' co-operate ' in applying the Convention in order to ensure that the wounded, sick and shipwrecked are accorded the humane treatment specified therein. Thus, when instructing its agents, the Protecting Power should not forget to remind them that all their efforts should be directed towards the strict application of the Convention, without the slightest irregularity which, by throwing suspicion on them and perhaps on their colleagues and Government, might restrict or even compromise the effectiveness of their work; for that
    would increase the suffering caused by the war.
    The last sentence, which gave rise to keen opposition, was omitted from the Third and Fourth Conventions. It was retained in the First and Second Conventions because they apply mainly on the battlefield or in its immediate vicinity, and a representative of the Protecting Power might, in all innocence and ignorance, overhear and circulate some military secret. But the belligerent Powers must never curb the activities of the Protecting Power by invoking "imperative necessities" without due consideration or merely for the sake of convenience. Those activities may only be restricted as an exceptional, temporary and partial measure. The restrictions must only apply to those of the Protecting Power's activities which come up against the military necessities in question. Only ' imperative ' necessities can justify an exception to the rule, [p.65] and it is therefore inconceivable that it could result in the suspension of the whole of the Protecting Power's activities under the Convention.
    Lastly, it should be noted that once it has been appointed and in the absence of any agreement to the contrary, the Protecting Power will exercise its activities in all the territories controlled by the belligerent to which it is accredited, and for so long as there are persons and property protected by the Convention.

    CONCLUSIONS

    At it stands, Article 8 is not perfect. But if one thinks of the tremendous advance which it represents in humanitarian law, it can be considered satisfactory.
    This Article presupposes the existence of a Protecting Power appointed by the Power of origin. It does not, however, make the appointment obligatory. As will be seen later, Article 10 permits the High Contracting Parties to agree to entrust to an organization which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Power.
    By making supervision compulsory and calling in a third Power, a neutral Power and as such immune from the passions of war, to co-operate in ensuring respect for fundamental principles, Article 8 reinforces the Convention's effectiveness.
    Article 1 reads as follows: "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances". This undertaking applies just as much to a Protecting Power which is a party to the Convention as it does to the belligerent Powers. It is right that this should be so. It illustrates the joint responsibility of nations in the defence of the protective barrier which they have raised against the evils of war by signing the Geneva Conventions.


    * (1) [(2) p.60] For an account of the historical background of
    this Article, see ' Commentary I ', pp. 86-95;

    (2) [(3) p.60] The French text reads: "' La Convention sera
    appliquée avec le concours... '" The words "shall be" in
    the English text show that the future imperative has been
    used, and not the simple future;

    (3) [(1) p.61] If the Protecting Power were not a party to the
    Convention, the latter mandate would be binding on it only
    to the extent that it expressly accepted it;

    (4) [(1) p.62] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949 ', Vol. II-B, on Article 6/7/7/7, pp.
    58-59, 74;

    (5) [(1) p.64] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949 ', Vol. II-B, on Article 6/7/7/7, pp.
    58-59, 74;