ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 12. Part I : General provisions
    ARTICLE 12 -- CONCILIATION PROCEDURE


    This provision already existed in a slightly different form in Article 83, paragraph 3 , and Article 87 of the 1929 Convention relative to the treatment of prisoners of war. The International Committee proposed that the two passages should be combined to form a single Article to be placed among the general provisions at the beginning of the Convention. This proposal, together with a suggestion that it should be inserted in all four Conventions, was adopted.
    The Article was adopted almost without change by the Diplomatic Conference, which did not discuss it at any great length. It was submitted with others to the Committee for the study of Articles common to all four Conventions. The Joint Committee, as it was called, referred the Article to its Special Committee, which appointed [p.114] a Working Party to consider all the provisions concerning the settlement of disputes which might arise in the application of the Conventions. The Working Party's proposal to insert this Article in all four Geneva Conventions was approved in turn by the Joint Committee and the Plenary Assembly.
    Such alterations as were made were in general intended to facilitate the activities and extend the competence of the Protecting Powers in this domain.

    PARAGRAPH 1. -- GOOD OFFICES OF THE PROTECTING POWERS

    It is no longer only in cases of disagreement between the Parties to the conflict with regard to the application of the Convention (as in the 1929 Convention) that the Protecting Powers are to lend their good offices; they are to do so in all cases where they deem it advisable in the interest of protected persons. Furthermore, it is explicitly laid down -- and this is new -- that the Protecting Powers are to act in this way when there is disagreement with regard to the interpretation of the provisions of the Convention.
    The only indication which the Convention contains of the form which such good offices will take, is the provision made in paragraph 2 of this Article for a possible meeting between representatives of the Parties to the conflict. There are, however, other methods to which the Protecting Powers may have recourse. They will undoubtedly in most cases try to achieve a fair compromise reconciling the different points of view, and will do all they can to prevent the disagreement from becoming acute.
    It may happen that one and the same State is responsible for safeguarding the interests of two belligerents ' vis-à-vis ' one another, or there may be two different Protecting Powers. In the latter case they can take action either separately or jointly. It is in general preferable for the two Protecting Powers to come to an understanding beforehand.
    During the Second World War there were several cases of disagreement between. belligerents concerning the way in which the provisions of the 1929 Conventions should be applied. The Protecting Powers, however, were inclined more often than not to regard themselves as agents, acting only on the instructions of the Power whose interests they safeguarded. The new wording invites them to take a more positive attitude. The general tendency of the 1949 Conventions is indeed to entrust Protecting Powers with rights and duties considerably more extensive than those which would devolve upon them [p.115] as mere agents, and with a certain power of initiative. They thus become, as it were, the agents of all the Contracting Parties and act in such cases solely as their own consciences dictate (1). The burden on countries which agree to act as Protecting Powers will naturally be much heavier now than it was under the 1929 Convention.

    PARAGRAPH 2. -- MEETING OF REPRESENTATIVES OF
    THE PARTIES TO THE CONFLICT

    This paragraph is a recast of provisions taken from Article 83, paragraph 3 , and Article 87, paragraph 2 , of the 1929 Prisoners of War Convention. It must be borne in mind, however, that henceforward Protecting Powers have the right to act on their own initiative, and are no longer dependent, as the 1929 text implied, on the initiative being taken by the Party to the conflict whose interests they represent. This idea of arranging a meeting of the representatives of the Parties to the conflict on neutral territory suitably chosen is very largely the result of experience gained during the First World War, when such meetings, which were fairly frequent, led to the conclusion of special agreements on the treatment of prisoners of war and on other problems of a humanitarian nature (2).
    On the other hand, no meeting of this kind took place during the Second World War, so far as is known to the International Committee of the Red Cross. It is true -- and deplorable -- that the particularly bitter nature of the struggle made the holding of such meetings very difficult, if not impossible.
    It cannot be denied that meetings of this kind, if they had been held, might have brought civilians considerable benefits, since the difficulty of reaching agreement when the parties are not in direct contact, and the delays which occur when negotiating under such conditions, are well known. There are certainly many points in the present Convention which call for improvement. It is to be hoped, therefore, that the new rôle assigned to the Protecting Powers will enable them to arrange meetings between belligerents on a strictly humanitarian basis, with a view to improving the lot of war victims.
    [p.116] The other 1929 provisions have been little changed. The Parties to the conflict are bound to give effect to the proposals for a meeting made to them by the Protecting Powers. The Protecting Powers may suggest that a neutral person, possibly one appointed by the International Committee of the Red Cross, should be present at the meeting. It is hoped that these provisions will be applied in practice, for they should certainly do a great deal to facilitate the application of the Geneva Conventions, and to ensure satisfactory treatment for the persons protected by those Conventions.
    During the Diplomatic Conference one delegation was against any reference in the Article to disagreements concerning the interpretation of the Convention, on the ground that its interpretation was not a matter for the Protecting Powers but solely for the Contracting Parties. Several delegations pointed out in this connection that there was no question of entrusting the interpretation of the Convention to the Protecting Powers, but only of allowing them to adjust differences arising in regard to its interpretation.

    ' Legal settlement of disputes. ' -- A word should be said here concerning a provision whose insertion in the Conventions was proposed by several delegations when discussions at the Diplomatic Conference began. They maintained that, owing to the evolution of international law, it was no longer possible today to draw up a Convention without providing for the legal settlement of problems arising out of its application or interpretation. The point was studied by a Working Party of the Joint Committee's Special Committee which adopted the text of an Article 130 D, to be inserted immediately after the Article relating to enquiry procedure (Article 149 in the present Convention). The new Article read as follows:

    "The High Contracting Parties who have not recognized as compulsory ipso facto and without special agreement, in relation to any State accepting the same obligation, the jurisdiction of the International Court of Justice in the circumstances mentioned in Article 36 of the Statute of the Court, undertake to recognize the competency of the Court in all matters concerning the interpretation or application of the present Convention." (3)

    This Article, though immediately subjected to violent criticism, was adopted first by the Special Committee and then by the Joint Committee itself. Further discussion took place in the Plenary Assembly of the Conference, where several delegates stressed the fact that such a provision was inconsistent with Article 35 of the Statute [p.117] of the International Court, which makes the United Nations Security Council responsible for laying down the conditions in which the Court is open to States not party to its Statute. They considered that it was inadvisable for Conventions completely independent of the juridical system of the United Nations, to include a provision dealing with the competence of one of its bodies. After a lengthy discussion the Conference decided to change the proposed Article into a Resolution, which was adopted without opposition. It reads follows:

    "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."

    The Diplomatic Conference no doubt acted wisely in eschewing a blend of two distinct juridical systems. It may indeed be desirable for a Convention to constitute a whole in itself, and to contain clauses laying down the procedure for the legal settlement of disputes; but it is none the less true that the Geneva Conventions, in virtue of their purely humanitarian nature, are exceptions to that rule. It is open to any and every State, whether or not a member of the United Nations, to ratify or accede to them. They strive after universality, irrespective of all political and juridical problems.
    Nevertheless, the strong recommendation contained in the Resolution undoubtedly carries weight and constitutes a powerful incentive to belligerents, in the circumstances indicated, to appeal to the Hague Court.


    Notes: (1) [(1) p.115] This extension of their powers is a logical
    consequence of the general mission entrusted to them under
    Article 9: "The present Convention shall be applied with
    the co-operation and under the scrutiny of the Protecting
    Powers";

    (2) [(2) p.115] See Mme FRICK-CRAMER: ' Le Comité
    international de la Croix-Rouge et les Conventions
    internationales pour les prisonniers de guerre, ' Revue
    internationale de la Croix-Rouge, May and July, 1943;
    Georges CAHEN-SALVADOR: ' Les prisonniers de guerre, ' pp.
    100 ff.;

    (3) [(1) p.116] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-A, p. 873;