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Commentary - Appointment of Protecting Powers and of their substitute
    [p.75] Article 5 -- Appointment of Protecting Powers and of their substitutes

    [p.76] General remarks

    177 The question of supervising the application of the rules, together with the question of the scope of application, was the subject that gave rise to most discussion in Part I. At all stages of the procedure of reaffirmation and [p.77] development, the need not only for developing the rules of protection, but also for strengthening the already existing but under-used mechanisms for application and the supervision of application was recognized. The usefulness of Protecting Powers and their substitutes was not called into question. (1) Nevertheless, it was to be noted that, since the conclusion of the Conventions, there had only been Protecting Powers in three conflicts, and even then it was not for all the Parties concerned, nor to carry out all the tasks provided for in the Conventions. (2)

    178 Various reasons had been advanced to explain the absence of Protecting Powers or of their substitutes in the majority of conflicts. Apart from the fact that many conflicts were not subjected to the system of Protecting Powers because their character was either exclusively or predominantly non-international, the following explanations are given amongst those which were put forward: (3)

    -- the Parties to the conflict in some cases abstained from appointing Protecting Powers because they had not broken off diplomatic relations;
    -- in some cases States did not designate a Protecting Power for fear that this might be interpreted as a recognition of the statehood of an adversary which they refused to recognize as a State;
    -- the prohibition of the use of force contained in Article 2, paragraph 4, of the Charter of the United Nations means that States only rarely recognize the existence of an armed conflict;
    -- the relatively limited number of States acceptable to both Parties to the conflict concerned in each set of bilateral relations; the problem of directing the belligerents' attention to designating and accepting Protecting Powers at a time when hostilities are raging; the burden imposed on States called upon to act as Protecting Powers in terms of material and human resources, as well as the risk of political difficulties vis-à-vis the Parties to the conflict concerned.

    179 The present article has endeavoured to deal with such difficulties, by clarifying the compulsory character of the system of Protecting Powers (paragraphs 1 and 2), by proposing practical methods for their appointment (paragraph 3), dealing with the question of a substitute (paragraph 4), and finally by clarifying special aspects (paragraphs 5 and 6). All this relates solely to the appointment of Protecting Powers and of their substitute defined in Article 2 (' Definitions '), [p.78] paragraphs (c) and (d), without changing the system of supervision established by the Conventions. (4)

    180 Why did the Conventions not deal with the appointment of Protecting Powers? This is because customary law governed their appointment and their mandate in general, which is currently known as "the Vienna mandate", as will be seen with regard to paragraph 6; hence the Conventions confined themselves to entrusting the supervision of their application under their common Article 8/8/8/9 to an already existing institution which, in view of the experience of the two World Wars, could be expected to be used and available in every situation of international armed conflict. As regards the substitutes of Protecting Powers, the concept was defined by the Conventions and their appointment was also governed by them in common Article 10/10/10/11 .

    181 Finally, a brief comment about the wording of the article: the title refers to "appointment", while paragraphs 1, 2, 3, 5 and 6 use the word "designate". The meaning of the latter word is not always exactly the same. In general, designation means the act by which a Party to the conflict chooses a neutral or other State not Party to the conflict (5) to safeguard its interests vis-à-vis the adverse Party; this act on the part of the designator must be supplemented by the consent of the Power chosen as a Protecting Power, and by the acceptance of the adverse Party in question, if the institution is to function: the conclusion to this end, in accordance with Article 2 (' Definitions '), sub-paragraph (c), of two mutually corresponding bilateral agreements or of one tripartite agreement means that the Protecting Power is "appointed". The use of the word "appointment" in the title of the article refers to this last stage. (6)

    182 The present article, which was discussed together with Article 2 (' Definitions '), sub-paragraphs (c) and (d), was adopted in Committee I, first of all paragraph by paragraph, and subsequently as a whole, by consensus; it was then adopted by consensus in the plenary Conference. (7)

    Paragraph 1

    183 This paragraph contains valuable clarifications with regard to Article 8/8/8/9 common to the Conventions, which reads in part as follows: "The present Convention shall be applied with the co-operation and under the scrutiny of the [p.79] Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict" (paragraph 1, first sentence).

    184 First, there remains no doubt at all that the Parties to the conflict should not only turn to the Protecting Powers if any exist, but also that they must appoint such Protecting Powers for the purposes defined by this paragraph. Secondly it is clear that this duty exists from the very moment that a situation referred to in Article 1 (' General principles and scope of application ') arises. (8) This is emphasized by various expressions which subsequently stress the need to act urgently ("from the beginning of a situation referred to in Article 1"; "without delay"; "within two weeks"). The explicit mention in this paragraph of the designation and acceptance is in the same vein, and serves to underline the fact that it is not sufficient to facilitate the task of the Protecting Powers once they have been appointed: the same duty to be diligent already exists to provide each Party to the conflict with a Protecting Power vis-à-vis every adverse Party.

    185 In the situation where there are not merely two but several Parties to a conflict, each should have a Protecting Power vis-à-vis each of its adverse Parties; depending on each individual case, this could be a single Protecting Power or several different ones. In the following we will limit ourselves to the case in which only two Parties confront each other.

    186 The aim assigned to the system of Protecting Powers -- to ensure the supervision and implementation of the Conventions and the Protocol -- adds a new element to the terms of the above-mentioned paragraph 1 of Article 8/8/8/9 common to the Conventions. Thus, if Article 1 common to the Conventions, and Article 1 (' General principles and scope of application '), paragraph 1, of the Protocol are taken into account, the main responsibility of respecting the Conventions and the Protocol falls on each individual Contracting Party, (9) in particular the Parties to the conflict; moreover, the duty of "ensuring respect" for these instruments, i.e., doing all in their power to prevent or put an end to failures of another Contracting Party, falls upon all Contracting Parties jointly. (10) for their part, the Protecting Powers act simultaneously as messengers and guardians: they serve as an intermediary between the adverse Parties and supervise the application of the law. (11))

    [p.80] 187 These two aspects of their function form the object of a number of special provisions of the Conventions and the Protocol, (12) but they are not limited to these provisions. The Diplomatic Conference of 1949 replaced the expression "their mission as defined in the present Convention" (draft) by the expression "their mission under the present Convention" in paragraph 3 of the above-mentioned common article precisely in order to show clearly that the function is not limited to those special provisions. (13) The reference of Article 2 (' Definitions '), sub-paragraph (c), to "functions assigned [...] under the Conventions and this Protocol" is not exhaustive either, since it refers back to the general definition of the function of Protecting Powers given in Article 5 , paragraph 1.

    188 To supervise the application of the law undeniably entails the right to demand that violations shall cease and, if necessary, reparations are made. However, the Conference did not consider that the Protecting Power was an organ entrusted with investigating and reporting on violations, as this was dealt with by other organs and other provisions. (14)

    189 The Conference did not determine or discuss in general what functions, if any, Protecting Powers might have to exercise in the combat zone, as supervision of the application of Part III, Section I (' Methods and means of warfare '), or of Part IV, Section I (' General protection against effects of hostilities '), might imply. According to the commentary to the draft (15) on this, it may be said that the Conventions and the Protocol have not significantly altered the traditional functions of the Protecting Powers and have therefore not envisaged that such Powers should be present during the combat stage itself.

    190 Finally, in referring to the interests of the Parties to the conflict, the second sentence of this paragraph is less concerned with the political interests of Parties than with the humanitarian interests of their nationals, having regard to the [p.81] humanitarian character of the Protocol. (16) Safeguarding the interests of the State itself is covered by the rules of international law concerning diplomatic relations, which we shall consider below with respect to paragraph 6. It should be noted that the wording of that paragraph is more comprehensive, covering the interests of the Parties to the conflict as well as those of their nationals.

    Paragraph 2

    191 Paragraph 1 laid down the principles and paragraph 2 specifies the twofold obligation of each Party, emphasizing the urgency of carrying out this obligation.

    192 For the passage "from the beginning of a situation referred to in Article 1", reference should be made to the commentary on paragraphs 3 and 4 of Article 1 (' General principles and scope of application ') and on Article 3 (' Beginning and end of application '). It gives the necessary indications regarding the scope of application and its beginning.

    193 The concept of fixing a period within which the obligations had to be fulfilled emerged several times, particularly in relation to the possibility that a substitute might appear on the scene in due course: thus periods of thirty or sixty days (17) were proposed, after which the use of a substitute was to have become compulsory in the absence of a Protecting Power. The wish to impose a requirement as firm in principle as it was adaptable to various circumstances prevailed, and the Parties are summoned to do all they can in the circumstances, bearing in mind the interests of the victims to be protected. A fixed period of a certain number of days appears only in paragraph 3 in fine.

    194 Regarding the method of appointing Protecting Powers, the paragraph repeats two of the three necessary steps listed in Article 2 (' Definitions '), sub-paragraph (c). In the first place, each of the Parties to the conflict must designate a neutral or other State not Party to the conflict as its Protecting Power vis-à-vis the adverse Party; as far as possible, it will endeavour to reconcile its own preferences with the likelihood of the adverse Party accepting its choice. In the second place, it must permit the activities of the Protecting Power of the adverse Party (the neutral or other State not Party to the conflict, designated as a Protecting Power by the adverse Party and accepted by it as such).

    195 A given State may accept the role of Protecting Power with which a Party to the conflict wishes to entrust it, at various points during the procedure. However, it is desirable for the State in question to have accepted the role, or at least to have replied in principle in a positive fashion before its name is proposed to the adverse Party. In any event, the first function of a State proposed as a Protecting Power might well consist of communicating to each Party to the conflict the choice made by the other. In this respect it should be noted that two opposing Parties may choose one and the same State as the respective Protecting Power of each of them. This has occured in many cases in a perfectly effective fashion.

    [p.82] 196 The acceptance as a Protecting Power of a State designated by the adverse Party and prepared to assume such functions, implies that the accepting Party will permit its activities. In fact, by mentioning the acceptance and the permission to act separately, this paragraph does not intend to describe two separate operations; on the contrary, it stresses the fact that these two aspects of a single act are inseparable, with at most the reservation that certain practical questions must have been settled.

    Paragraph 3

    197 This deals with the case in which one or other of the Parties to the conflict, or both, do not have a Protecting Power from the beginning of a situation referred to in Article 1 (' General principles and scope of application ') for whatever reason this may be.

    ' First sentence '

    198 Although the ICRC must intervene under the terms of this paragraph from the beginning of a situation referred to in Article 1 (' General principles and scope of application '), it will of course decide on the principle and the moment of its intervention in the light of several factors. In particular, it will take into account the chances of appointing the Protecting Power or Powers which are lacking without its acting as an intermediary, the time when the appointment is likely to occur, as well as the importance and urgency of the need for a Protecting Power. The ICRC will use its best judgment, without interfering when it gets positive information on the contacts undertaken, but also without any indecision if a failure or deadlock seems more probable.

    199 What does the term "good offices" mean? This refers to the assistance which the ICRC would offer to the Parties to the conflict to find one or two Protecting Powers to which they would agree; the forms such assistance could take are not specified, with the exception of the example given in the second sentence. The good offices are limited to the role of intermediary, as in principle only a mediator can propose a solution. This rather theoretical distinction, judging from international practice and legal literature, (18) should not unduly limit the possibilities open to impartial humanitarian organizations in the present context.

    200 The paragraph does not only prescribe action by the ICRC, it grants it a degree of priority by mentioning it expressly and entrusting it with a mandate. However, it does not prohibit the right of any other impartial humanitarian organization to act in the same manner. In fact, this solution is not intended to encourage harmful [p.83] competition of parallel but contradictory action, but, if necessary, provides a possibility of resorting to a number of different channels to increase the chances of success.

    201 Thus in certain circumstances there might be several organizations acting in parallel, and in the final analysis the assessment of their humanitarian merits and the degree of their impartiality falls upon the Parties concerned. (19) The objective which prevails by far over questions of priority or monopoly is of course the appointment of the one or two Protecting Powers which are lacking, with the least possible delay.

    ' Second sentence '

    202 As shown by the words " inter alia ", this is an example of the good offices which the ICRC or another impartial humanitarian organization might render.

    203 Each Party to the conflict which has no Protecting Power is required to provide, within two weeks from the receipt of the request, a list of at least five States which that Party considers acceptable to act as a Protecting Power on its behalf in relation to an adverse Party. Similarly each Party for which the adverse Party did not have a Protecting Power would be required to provide a list of at least five States which would be acceptable to it as a Protecting Power. The ICRC or other organization making the request would compare for each of the Parties the two lists of States acceptable as a Protecting Power submitted respectively by the first-mentioned Party and by its adverse Party, and would seek the agreement of each State contained on the two lists.

    204 If only one State appeared on both lists, its agreement would suffice for its appointment as a Protecting Power, given the fact that the two Parties concerned have already accepted. If several States appeared on both lists, a choice would have to be made after seeking their agreement. If no State appeared simultaneously on both lists, this would require either a continuation of the good offices or recourse to paragraph 4, depending on the circumstances.

    Paragraph 4

    ' The system of the Conventions '

    205 The question of substitutes of Protecting Powers is dealt with in Article 10/10/10/11 common to the Conventions. (20) The three possibilities contained in this article actually exceed the definition of the substitute given in Article 2 (' Definitions '), sub-paragraph (d), of the Protocol, and the provisions of this paragraph.

    [p.84] 206 According to ' paragraph 1 ' of the common article: "The High Contracting Parties may at any time agree to entrust to an organization which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present Convention."

    207 This possibility, which is open to two, or any other number of Contracting Parties, has never been used. It was intended to allow for the designation of an existing organization or the creation of a new one. (21)

    208 According to ' paragraph 2 ' of the common article, when protected persons do not benefit from the activities of a Protecting Power or of an organization provided for in paragraph 1, the Detaining Power must request a neutral State (22) or such an existing organization, to undertake the functions of a Protecting Power.

    209 Though the functions are indeed the same as those of a Protecting Power -- or of an organization in accordance with paragraph 1 -- this substitute is appointed without the intervention of the Power of origin of the protected persons. Such a mechanism should only be used in exceptional cases, for example, where the Power of origin was not, or was no longer recognized by the adverse Party, or otherwise where it was impossible for whatever reason to appoint a Protecting Power or to replace a Protecting Power which is no longer able to act. (23)

    210 ' Paragraph 3 ' of the common article offers the ultimate remedy in case none of the previous provisions has been applied: what has been called a quasi-substitute or a humanitarian substitute. In this eventuality the Detaining Power must request a humanitarian organization such as the ICRC to assume the humanitarian functions of a Protecting Power, or it must accept an offer of services by such an organization.

    211 Here again, appointment can take place without the agreement of the Power of origin necessarily being required, as it is for Protecting Powers, or the organization referred to in paragraph 1. There is an additional difference in that the activities of the quasi-substitute are limited to the ' humanitarian ' functions that fall upon Protecting Powers. This means that the quasi-substitute must take upon himself at least and as a matter of priority such functions as bring directly and immediately to protected persons the care and relief which their condition demands. (24) Yet the ICRC has made it known that in its view all tasks that fall upon Protecting Powers under the Conventions are in fact humanitarian tasks (25)

    212 ' Paragraph 4 ' of the common article, which is directly linked with the preceding paragraph, requires that the organization concerned furnishes sufficient assurances that it is in a position to undertake its functions and to discharge them impartially.

    [p.85] ' Purpose of paragraph 4 of Article 5 '

    213 Two problems had been identified with regard to the substitutes provided for by the Conventions:

    -- paragraph 1 of the relevant common article had never resulted either in the designation of an existing organization or in the creation of a new body;
    -- paragraphs 2 and 3 had never been used either; the main drawback imputed to them, and which had actually led to reservations being made with regard to this article, (26) was concerned with the fact that the Power of origin was not consulted. For many the qualities and conduct required from such substitutes did not offer the same assurances for the Power of origin as the requirement of its consent. In contrast, a less strongly held view considered that it was desirable that in the absence of a Protecting Power the appointment of a substitute should take place almost or entirely automatically. The present text was the result of lengthy discussion and endeavoured to reconcile these two tendencies on this important point.

    ' First sentence '

    214 The present paragraph is relevant only "if, despite the foregoing, there is no Protecting Power". The normal procedure described above (paragraph 2) and the good offices (paragraph 3) have therefore failed. The recognized need for still ensuring the implementation of a system of supervision over the application justifies the right granted here to the ICRC or any other organization offering all guarantees of impartiality and efficacy to enter into consultation with the Parties to the conflict. The draft only mentioned the ICRC, but it was soon agreed that while only mentioning this organization explicitly, the same right should be granted to any other organization with the required characteristics; by way of example, the delegations named the United Nations -- in particular, the High Commissioner for Refugees --, the Organization of African Unity, the Order of Malta. (27) As regards the ICRC, it should be emphasized that any functions that might be attributed to it pursuant to this paragraph do not affect the specific tasks with which it is entrusted by the Conventions and the Protocol, nor its right of initiative granted by Article 9/9/9/10 common to the Conventions, and Article 81 (' Activities of the Red Cross and other humanitarian organizations '), paragraph 1, of the Protocol. (28)

    215 The object of such consultations will be to determine how an organization of this type could assume the tasks which fall upon Protecting Powers. Depending on each individual case, it may be a question of making allowances for the fact [p.86] that one or two Protecting Powers are missing between two Parties to the conflict. In some circumstances, the consultations could also take place between the Parties to the conflict and two or more organizations. For the appointment of a substitute, as for the good offices referred to in paragraph 3, there is nothing against the parallel examination of a number of candidates to increase the chances of a positive result. The important thing is to establish the qualities of impartiality and efficacy of the organizations willing to act with the least possible delay and the view of the Parties concerned is certainly decisive in this respect.

    216 The organizations referred to should take into account the results of such negotiations, but does this mean they are bound by the results? Although the text does not necessarily state that this is the case, from the point of view of the efficacy of an organization, the chances of its success and its credibility areprobably reduced if it does not enjoy the trust of the Power of origin, and these will be virtually nil if the trust of the other Party to the conflict is lacking. Bearing these considerations in mind, the ICRC declared that for its part it would only offer to act as a substitute if it had the consent of the Parties to the conflict -- as it had already stated in connection with paragraph 3 of Article 10/10/10/11 common to the Conventions. It considers that it can only act with complete efficacy if this consent is forthcoming. In fact, such consent significantly affects the weight of its interventions and its acceptibility in the eyes of protected persons. In addition, it should certainly not be forgotten that it also affects the possibility of finding the necessary resources both as regards personnel and financial means.

    217 Thus an offer could be made despite a negative result of the negotiations, but its only effect would probably be to exacerbate or at least to block a situation which is already delicate. In our view, this is the only reason -- and a sufficient one -- for a clause which at first sight might seem to create a double hurdle given the requirement in the following sentence of the consent of the Parties to the conflict.

    218 In the conduct of negotiations those concerned should make every effort to find and appoint a suitable substitute quickly. If the Parties to the conflict have clearly failed in this obligation, the ICRC would doubtless attempt to remind them of their obligations. Finally, although such consultations obviously have to be undertaken without publicity, when all was said and done, the ICRC should certainly state whether or not any offer it may have made to act as a substitute had been accepted.

    219 We recall once again what was said with regard to Article 2 (' Definitions '), sub-paragraph (d); without explicitly providing for such action or encouraging it, the Protocol does not prohibit sharing out the tasks of the Protecting Power between a State and a substitute, or between two or more substitutes, if this seems appropriate in a particular case.

    ' Second sentence '

    220 The exercise of its functions by a substitute is subject to the consent of the Parties to the conflict: this should be understood in relation to the preceding sentence. Once the Parties have accepted an offer, the specific practical details of the substitute's activities in the context of the Conventions and the Protocol [p.87] remain to be determined. This should certainly not mean that the acceptance may be called into question, or that it may be deprived of significance by not following it up.

    221 Any hesitation in this respect is removed by the end of the second sentence, which states that: "every effort shall be made by the Parties to the conflict to facilitate the operations of the substitute in the performance of its tasks".

    ' Relationship with the Conventions '

    222 The examination undertaken of Article 10/10/10/11 common to the Conventions and of this paragraph 4 provides the key to their relationship.

    223 Based as it is on the agreement of the two Parties to the conflict, which is desirable whenever possible, the present paragraph overrides paragraphs 2 and 3 of the article common to the Conventions. However, in the last resort, these paragraphs may still play a role, despite their imperfections. (29)

    224 As regards the possibility laid down in paragraph 1 of the same article, this remains open to the High Contracting Parties without being affected by the new provision.

    Paragraph 5

    225 Parties to a conflict have sometimes feared that recourse to the system of Protecting Powers might have an effect on the legal status of another Party to the conflict or of a particular territory. For this reason the Conference considered that it was appropriate to repeat here the general rule of Article 4 (' Legal status of the Parties to the conflict ').

    226 The wording is more concise than that of Article 4 (' Legal status of the Parties to the conflict ') because it refers specifically to the general rule and because of the nature of the present provision, which merely serves as a reminder. Moreover the fact that this is a reminder has a particular importance as far as substitutes are concerned, as we will see with respect to paragraph 7.

    Paragraph 6 (30)

    ' Maintenance of diplomatic relations '

    227 This paragraph first affirms that the maintenance of diplomatic relations between the Parties to the conflict is no obstacle to the designation of Protecting Powers in the sense of the Conventions and the Protocol.

    [p.88] 228 In response to the wish of the majority of governments and experts who expressed their view on this matter, the rule requires that the circumstances of each particular case are assessed. For a long time there was a general feeling that the maintenance of diplomatic relations between Parties to the conflict prevented the latter from appointing Protecting Powers. However, this view of the matter could prove to be extremely harmful to the interests of protected persons if diplomatic relations were maintained without functioning normally.

    229 On the other hand, the Diplomatic Conference did not follow the advocates of the opposite solution, which was to the effect that the appointment of Protecting Powers should be mandatory, even in cases where diplomatic relations were maintained.

    230 Thus, in the light of the efficacy of existing diplomatic relations, and in particular their ability to ensure the necessary supervisory and liaison functions for the application of the Conventions and the Protocol, the Parties to the conflict may be exempted from appointing Protecting Powers.

    ' "Geneva mandate" and "Vienna mandate" '

    231 After a brief discussion, the Conference allowed each Party to the conflict the possibility of having in certain cases two different Protecting Powers to safeguard its interests. One would be appointed in accordance with the rules of international law concerning diplomatic relations; this might be termed the "Vienna mandate", after the Vienna Conventions on diplomatic and consular relations. (31) The other would be appointed for the purposes of the Conventions and the Protocol, which explains the expression "Geneva mandate".

    232 The choice open to the Parties to the conflict should be aimed at the greatest possible efficacy. In principle it seems that the best solution remains that of a single Protecting Power, provided that the State which has already been entrusted with the "Vienna mandate" is prepared and capable of adding the "Geneva mandate".

    233 Whatever solution is chosen, the Parties to the conflict should specify their intentions and make them known as quickly as possible. In particular, to ensure that the system begins functioning as soon as possible, a Party to the conflict should only refuse for grave reasons the cumulation of both mandates where this is the wish of the adverse Party and has the agreement of the State already exercising for the latter Party the "Vienna mandate".

    [p.89] Paragraph 7

    234 No commentary ought to be required for such a straightforward provision, which is aimed only at avoiding repetition in the text of the Protocol. Nevertheless, two comments should be made.

    235 First, the word "subsequent": it would perhaps have been surprising if the indication that every mention of the Protecting Power also includes the substitute applied to paragraphs 2 and 3 of this article. On the other hand, the word "subsequent" limits the application of the paragraph to subsequent articles, while it really also ought to apply to paragraphs 5, 6, and possibly 1 of Article 5 .

    236 This is only seemingly an omission: paragraph 5 in any case serves only as a reminder; paragraphs 1 and 6, for their part, refer to the Protecting Powers themselves because it is only in the case that they fail to be appointed that substitutes appear on the scene as a subsidiary form of the same system of supervision.

    237 As regards the meaning of the word "substitute", this can be found in Article 2 (' Definitions '), sub-paragraph (d): "an organization acting in place of a Protecting Power in accordance with Article 5 ". This definition, which in any case turns out only to serve for the present paragraph, has one omission: it fails to cover substitutes in the sense of the Conventions, while paragraph 1 of the common Article 10/10/10/11 is not affected by the present article, and paragraphs 2 and 3 of the same common article remain as ultimate solutions. This should be seen as an error and it may be taken as granted that a substitute such as provided by these provisions of the common article could also invoke the provisions of the Protocol relating to Protecting Powers.

    ' B.Z. '

    NOTES (1) The functions of the Protecting Powers are outlined below in the discussion of para. 1. In the preparatory work particular note should be made of the document Government Replies, 2nd ed., pp. 6-18, (question 1), pp. 34-130, (questions 3-13), and 01-010 (Annexes 1 and 11);

    (2) O.R. VIII, p. 165, CDDH/I/SR.18, para. 62. Cf. J. Pictet, ' Humanitarian Law and the Protection of War Victims ', Geneva-Leyden, 1975, p. 66, which mentions the Suez conflict (1956), that in Goa (1961) and the conflict between India and Pakistan (1971-1972). A more recent case is that of the conflict between Argentina and the United Kingdom in 1982, in which two States exercised functions of an intermediary and communicated information as laid down by the Conventions (cf. S.-S. Junod, ' Protection of the Victims of Armed Conflict Falkland-Malvinas Islands (1982). International Humanitarian Law and Humanitarian Action ', Geneva, 1984, p. 20);

    (3) We repeat in simplified form the relevant passages of CE/2b, pp. 16-17, and Report A/7720 of the United Nations Secretary-General of 20 November 1969, para. 213, quoted ibid., p. 24, note 62;

    (4) The Protecting Powers or their substitute are mentioned in the Protocol in Articles 2 (sub-paras. (c) and (d)), 6 (para. 1) 11 (para. 6), 33 (para. 3), 45 (paras. 1-2), 60 (para. 2), 70 (para. 3 (b)), 78 (para. 1), and 84. In addition, the Parties to the conflict may resort to Protecting Powers for notifications, agreements and communications of information, as laid down in Articles 12 (para. 3), 22 (para. 3), 23 (para. 4), 25, 26 para. 1), 27 (para. 1), 28 (para. 4), 29 (paras. 1-4), 33 (paras. 1 and 4), 34 (paras. 2-3), 43 (para. 3), 56 (para. 6), 57 (para. 2(c)), 59 (paras. 2, 4-6), 60 (para. 5), 64 (paras. 1-2), 65 (para. 1), 66 (para. 5), 85 (para. 4(d)), 90 (paras. 2(d) and 3(a)), 96 (para. 2), Annex I, Arts. 1 (para. 2), 6 (para. 3), 7 (para. 3), 8, and 12;

    (5) On the meaning of this expression, cf. commentary Art. 2, sub-para. (c), supra, p. 61;

    (6) In fact, the same word "désignation" is used in the French version in the title and in the article itself;

    (7) Cf. O.R. VIII, p. 264, CDDH/I/SR.27, para. 70; pp. 266-267, paras. 87, 91; pp. 268-269, paras. 98 and 101-103; 0.R. VI, p. 65, CDDH/SR.37, para. 1, respectively;

    (8) The difference between the wording of this paragraph ("from the beginning of that conflict") and paragraph 2 ("from the beginning of a situation referred to in Article 1") is not the result of a difference of substance: the term "conflict", as used particularly in the title of the Protocol itself, also covers all forms of occupation, including the case where it does not meet any armed resistance (cf. Art. 1, paras. 3 and 4, of the Protocol and Art. 2 common to the Conventions, paras. 1-2);

    (9) On the meaning of the expression "High Contracting Parties", cf. commentary Preamble, supra, p. 25;

    (10) For further details, cf. commentary Art. 1, para. 1, supra, pp. 35-37;

    (11) On Protecting Powers before 1949, cf. A. Janner, ' La puissance protectrice en droit international ', Basle, 1st ed., 1948, 2nd ed., 1972; W.M. Franklin, ' Protection of Foreign Interests, Washington, D.C. ', 1946.
    On Protecting Powers and their substitutes in the Conventions, both for the historical background and for an analysis of their functions, cf. F. Siordet, ' The Geneva Conventions of 1949 '. ' The Question of Scrutiny ', ICRC, 1953. ' Commentaries I-IV ' ad Arts. 8/8/8/9 and 10/10/10/11.
    Covering the Conventions and the Protocol, cf. M. Takemoto, "The Scrutiny System under International Humanitarian Law -- An Analysis of Recent Attempts to Reinforce the Role of Protecting Powers in Armed Conflicts", ' Japanese Annual of International Law ', 1975, p. 1; D.P. Forsythe, "Who Guards the Guardians: Third Parties and the Law of Armed Conflict", 70 AJIL 1, 1976, p. 41; F. Bugnion, "Le droit humanitaire applicable aux conflits armés internationaux -- Le problème du contrôle", ' 8 Annales d'Etudes internationales ', 1977, p. 29; C. Dominicé, "The Implementation of Humanitarian Law", in ' The International Dimensions of Human Rights ', Paris, 1982, p. 507; C. Dominicé et J. Patrnogic, "Les Protocoles additionnels aux Conventions de Genève et le système des Puissances protectrices", ' 28 Annales de droit international médical ', 1979, p. 24; G.I. A.D. Draper, "The Implementation and Enforcement of the Geneva Conventions of 1949 and of the Two Additional Protocols of 1978 [sic]", 164 ' Hague Recueil ', 1979/III, pp. 13-19, 29; G. Abi-Saab, "The Implementation of Humanitarian Law", in A. Cassese (ed.), ' The New Humanitarian Law of Armed Conflict ', Naples, 1979, pp. 310-341, 345-346; J. de Preux, "Protecting Power", IRRC, March-April 1985, p. 86;

    (12) For the Protocol, cf. supra, note 4, first sentence. For the Conventions, cf. F. Siordet, op. cit., pp. 73-80. ' Commentaries I-IV ', ad Art. 8/8/8/9, para. 1, pp. 26, 60, 98 and 99-100 (note 2), 87 (note 1) respectively;

    (13) Cf. For example, ' Commentary I ', pp. 96-98;

    (14) Cf. commentary Art. 90, particularly para. 2 (e), which mentions the relevant Article common to the Conventions. For the ' travaux préparatoires ', cf. particularly O.R. III, p. 35, CDDH/I/83, para. 2; O.R. X, p. 69, CDDH/I/235/Rev. 1 (para. 4bis); O. R. VIII, p. 254, CDDH/I/SR.27, para. 8; pp. 261-262, paras. 54-55; ' Commentary Drafts ', p. 9 (Art. 2, sub-para. (d), in fine);

    (15) ' Commentary Drafts ', p. 9 (Art. 2, sub-para. d), in fine);

    (16) O.R. VIII p. 280, CDDH/I/SR.28, para. 50;

    (17) O.R. III, p. 28, CDDH/I/64; p. 34, CDDH/I/205 (ad paras. 3 and 3bis). Cf. also ' Commentary III, ' p. 121, and ' Commentary IV, ' pp. 109-110;

    (18) Cf. L. Oppenheim, ' International Law: A Treatise, ' vol. 2: Disputes, War and Neutrality, 7th ed., London, 1952, pp. 8-11 ( 7-11); P. Reuter, ' Droit international public ', 4th ed., Paris, 1973, pp. 326-327; Ch. Rousseau, ' Droit international public, ' vol. V, Paris, 1983, pp. 261-271 (paras. 253-264). The Hague Convention for the Pacific Settlement of International Disputes deals with the subject of good offices and mediation, though without defining the former or establishing a clear distinction between them (Convention I of 1899 and 1907, Arts. 2-8);

    (19) On the concepts of "humanitarian" and "impartial", cf. for example ' Commentary I, ' pp. 109-110 Art. 9);

    (20) For more complete information on the origin and contents of this common article, cf. the commentary thereon or F. Siordet, op. cit.;

    (21) The study of the possibility of a new body as recommended by resolution 2 in 1949 has not 1ed to any result;

    (22) To be interpreted in the terminology of the Protocol as "a neutral or other State not Party to the conflict"; cf. commentary Art. 2, sub-para. (c), supra, p. 61;

    (23) Cf. for example ' Commentary, I, ' pp. 120-121. For an assessment of the reservations formulated by a number of States with regard to paras. 2 and 3, cf. C. Pilloud, "Reservations to the Geneva Conventions of 1949", IRRC, March 1976, pp. 117-121 (pp. 13-16 of the offprint);

    (24) Cf. For example, ' Commentary I, ' p. 122;

    (25) ' CE 1971, Report, ' p. 109, paras. 552-553;

    (26) Cf. supra, note 23, second sentence;

    (27) The United Nations was mentioned several times in respect of this article, either as a designating authority for Protecting Powers or substitutes, or to play the role of substitute itself. The Order of Malta let it be known that it was prepared to assume a mandate as a substitute (cf. O.R. VII, p. 317, CDDH/SR.58, paras. 185-187, and notification by the depositary of 2 May 1980);

    (28) The ICRC stated its views on the various aspects of this paragraph shortly before it was adopted by the competent Committee; cf. O.R. VIII, pp. 264-265, CDDH/I/SR.27, paras. 71-81;

    (29) Many explicit statements were made that the provisions of the Conventions relating to substitutes are not cancelled by the present paragraph, for example, O.R. VIII, p. 145, CDDH/I/SR.17, para. 24; pp. 271-272, CDDH/I/SR.28, paras. 3-6; p. 273, para. 11; p. 276, para. 21; p. 279, para. 43;

    (30) Despite its wording, and as will be seen below in the commentary on paragraph 7, that paragraph also applies to paragraph 6;

    (31) Convention on Diplomatic Relations of 18 April 1961, Art. 45; Convention on Consular Relations of 24 April 1963, Art. 27. On 31 December 1984 these Conventions had 142 and 109 States Parties, respectively;