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Commentary - Art. 10. Chapter I : General provisions
    ARTICLE 10 -- SUBSTITUTES FOR PROTECTING POWERS


    [p.113] GENERAL

    This Article supplements Article 8 , and cannot be considered except in conjunction with the latter, on which see the commentary above (1).
    Protecting Powers are not, we must repeat, a creation of the Geneva Conventions. They constitute an institution -- or more exactly, just a practice -- of international law, much older than the Conventions. The appointment of a Protecting Power is a private matter between the Power of Origin, which appoints, the Protecting Power, which is appointed, and the State of Residence, in which the functions of the Protecting Power are to be exercised. The 1949 Conventions do not come into these arrangements. All they do is to designate, in the person of the Protecting Power, the third party entitled to be entrusted, not by the Power of Origin alone, but this time by all the High Contracting Parties, with a higher mission -- that of participating in the application, and supervising the observance, of the Conventions.
    The exercise of the Protecting Power's functions accordingly presupposes the juridical existence and the capacity to act of the three parties to the contract. In the event of one of the parties ceasing to exist, or merely ceasing to be recognized by one of the other two, or again, in the event of its losing its capacity to act, the Protecting Power's mandate comes to an end automatically.
    This occurred on numerous occasions in the Second World War. When the Protecting Power itself ceased to function, the gap could be filled by the Power of Origin appointing another neutral State to take its place. Thus, towards the end of the war Switzerland and [p.114] Sweden between them were acting as Protecting Powers for practically all the belligerent States. But, when it was one of the two belligerents whose legal or actual existence, or capacity to act, ceased, millions of individuals in the hands of the enemy were left for good or evil at the mercy of the latter.
    The International Committee of the Red Cross for its part could not allow its interest in the victims of war to be overridden by juridical considerations. Juridical considerations were a matter for Governments. In the eyes of the International Committee on the other hand soldiers who were sick, wounded, or prisoners of war were always suffering human beings, whether the country for which they fought was, or was not, recognized by its opponent. The urgency of the need for treatment of their sickness or their wounds did not depend on the entry into force or the lapsing of a Convention. Accordingly the International Committee set itself with varying, and generally limited, success to make its traditional humanitarian assistance available to prisoners of war whose title to protection under the 1929 Convention was contested (2). It did more. In certain cases, where there was no Protecting Power, the Committee was able, either on its own initiative or at the request of one of the Parties, to engage in certain activities reserved to the Protecting Power (3).
    The International Committee of the Red Cross took all these points into consideration when it embarked on the study of the revision of the existing Conventions and the draft of a new one. After considering various solutions and consulting the Conference of Government Experts of 1947 (4), the Committee drafted an Article, common to all four Conventions, which was approved by the Stockholm Conference and taken as the basic text of the Diplomatic Conference of 1949. It ran as follows:

    "The Contracting Parties may at any time agree to entrust to a body which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present Convention."
    [p.115] Furthermore, if wounded and sick, or members of the medical personnel and chaplains do not benefit, or cease to benefit, by the activities of a Protecting Power or of the said body, the Party to the conflict in whose hands they may be, shall be under the obligation to make up for this lack of protection by inviting either a neutral State or an impartial humanitarian body such as the International Committee of the Red Cross, to assume in their behalf the duties devolving by virtue of the present Convention on the Protecting Powers.
    Whenever the Protecting Power is named in the present Convention, such reference also designates the bodies replacing it in the sense of the present Article."

    This text was the occasion of arduous, and frequently confused, discussions. To the principle there was little opposition; but the wording gave rise to numerous amendments (5).
    Some felt that the second paragraph was not sufficiently precise. There should, they said, be a clearer distinction between the different cases in which a substitute was to be found for a Protecting Power. A neutral State and a humanitarian organization could not be placed on the same footing for service as substitutes. The International Committee of the Red Cross itself said that it could hardly act as a substitute for a Protecting Power in the full and true sense of the word. The independence, by which all its activities were conditioned, would not permit of its acting as the agent of a particular Power. It might be able, within the measure of its means, to take over the humanitarian duties of the Protecting Power; but there were other duties of an administrative, or even a political, character, which it could not carry out. The discussion was now tending towards the idea of making a distinction between substitutes proper of Protecting Powers and recourse, in the event of the substitute itself ceasing to function, to a humanitarian organization.
    Other delegations were afraid that the substitute, being appointed by the Detaining Power, would not have the requisite independence, or would lose sight of the interests of the Power of Origin. Others again were apprehensive of an Occupying Power evading the provisions of the Article by the conclusion of a special agreement with the Government of the occupied country, where that Government was dominated, and perhaps even set up, by the occupant.
    Another view, first expressed by the Conference of Government Experts in connection with the new Civilians Convention, was put forward on several occasions by the French Delegation. It was to the [p.116] effect that, in the event of a general war in which there were no neutral States left, the provisions of the Article would remain inoperative, unless some special organization was set up in peacetime.
    These various standpoints found embodiment in three main amendments or proposals, as follows:

    1. An elaborate amendment of the United Kingdom, proposing to split up the second paragraph of the Stockholm draft into three separate parts, dealing with three possible ways (conceived as successive, and not alternative possibilities) of replacing the Protecting Power (6).

    2. A French proposal to insert in all four Conventions the provision adopted at Stockholm for prisoners of war only. The object of the amendment was to prevent the conclusion of special agreements between the Occupying Power and the adverse Government, since the latter's liberty of action would be restricted.

    3. Another French proposal for a new Article setting up a "High international Committee", consisting of 30 persons of established impartiality, to replace the Protecting Power.

    The United Kingdom amendment was discussed line by line. Parts of it were adopted; others were rejected. It was then redrafted, and led ultimately to the division of the second paragraph of the Stockholm text into two distinct parts, which became paragraphs 2 and 3 of the Article in its final form. The United Kingdom amendment also led to the adoption of the new paragraph 4.
    The first French proposal, which was adopted, resulted in the insertion, in all four Conventions, of paragraph 5, which was originally meant to figure only in the Third (Prisoners of War) Convention. The second French proposal was accepted by some; but others pointed out the various practical difficulties which it would involve. It was accordingly given the form of a simple recommendation, and adopted as such as Resolution 2 (7).
    In the end paragraphs 1, 5 and 6 were approved unanimously in the Joint Committee, while paragraphs 2, 3 and 4, and the Article as a whole, [p.117] were approved only by a majority. At the plenary meeting of the Conference the Article was finally adopted by 30 votes to 8. Opposition, which was persistent and recurred at every stage of the discussion, was confirmed by reservations at the time of signature (8). It was directed above all against paragraphs 2 and 3. Numerous delegations were unwilling to allow a Detaining -- that is to say, an enemy -- Power to appoint a substitute of its own choice without the agreement of the Power of Origin. It may have been due to the confused nature of the discussions, or to inevitable defects in the translation of oral discussions, but this view was founded on a misunderstanding of the purport of paragraphs 2 and 3. The opponents of the text based their contentions on the idea that if the Protecting Power chosen by the Power of Origin ceased to function, it would follow automatically that the adverse Power would alone be
    qualified to find it a successor (9).
    It is true that, in the enumeration of the successive cases of absence of protection, the Conference omitted to state that where the Protecting Power ceased to function, it would rest with the Power of Origin to appoint a substitute. But this was an omission which it did not rest with the Conference to make good. It was not for the Conference to create or to regulate the system of Protecting Powers, which is governed by international usage. All that the Conference was called upon to do was to determine the particular duties of co-operation and supervision to be assigned to the Protecting Power and, in the event of the absence of any Protecting Power, to decide to whom, and in what manner, the duties of the latter should be transferred.

    [p.118] PARAGRAPH I -- SPECIAL INTERNATIONAL ORGANIZATION

    By the mere fact of choosing a Protecting Power, in accordance with international usage, a belligerent State appoints the latter to play the part indicated in Article 8 , and to perform the duties which the part entails.
    The first paragraph of Article 10 gives the High Contracting Parties the option of entrusting this high mission to a special organization.
    The provision relates only to the duties envisaged by the Convention, It does not in any way affect the right of the Power of Origin to appoint an ordinary Protecting Power; nor does it affect the normal duties of a Protecting Power, such as the safeguarding of the diplomatic, commercial and financial interests of the Power of Origin ' vis-à-vis ' its adversary, or the protection of individuals and their property over and above the protection provided by the Conventions. All that remains a private matter between the parties concerned.
    Accordingly a belligerent Power may quite well appoint simultaneously:

    (a) a neutral State as ordinary Protecting Power, to perform the usual
    duties of a Protecting Power, other than the duties for which the
    Convention provides;

    (b) (by agreement with the enemy) an organization as described in
    paragraph 1, to perform the duties for which the Convention provides.

    The belligerent cannot appoint any organization he pleases. Two conditions are essential: there must be agreement between both parties as to the appointment; and the organization appointed must offer every guarantee of ' impartiality ' and ' efficacy '.
    What is meant by "impartiality" has been already shown (10). But it is difficult to define here the conditions for "efficacy", since they will depend on the nature, extent and degree of localization of the conflict. The guarantees of efficacy are to be sought mainly in the financial and material resources which the organization has at its command and, even more perhaps, in its resources in qualified staff. Its independence in [p.119] relation to the Parties to the conflict, the authority it has in the international world, enabling its representatives to deal with the Powers on a footing of equality, and finally its accumulated experience -- all these are factors calculated to weigh heavily in deciding the parties to agree to its appointment. Without such agreement the special organization to which paragraph I relates cannot be appointed; and in the absence of such agreement the duties for which the Convention provides fall automatically to the Protecting Powers.
    Paragraph 1 is applicable ' at any time '. There are three conceivable contingencies in which it may be applicable:
    (a) In peacetime the High Contracting Parties may conclude an ad hoc agreement by which the role assigned by the Convention to the Protecting Powers is to be entrusted, in the event of armed conflict, to a special organization designated by name. In such a case, as soon as a conflict breaks out between two or more of the High Contracting Parties, the organization in question will be invested with the functions arising out of Article 8 . The Protecting Powers appointed by the Parties to the conflict will thereupon be ipso facto freed of responsibility for performing the said functions.
    Such was the original idea voiced at the Conference of Government Experts in 1947. But the agreement regarding the appointment of a special organization need not necessarily be concluded between all the Powers parties to the Convention. It may be the act of some of them only, in which case the special organization will not be invested with the functions arising out of Article 8 except in regard to relations between adversaries who are parties to the agreement. For all other purposes the Protecting Powers will continue to discharge these functions.
    (b) At the outset of hostilities the Parties to the conflict, in appointing their respective Protecting Powers, may agree to have recourse to a special organization for the application of the Convention. An agreement of this kind, handing over to the special organization the functions for which Article 8 provides, relieves the Protecting Powers eo ipso of those functions, leaving them to pursue their other activities arising out of international usage.
    (c) In the course of the conflict the opposing Parties may agree for some reason -- in order, for example, to relieve the Protecting Powers -- to entrust to a special organization a part of the functions exercised by those Powers under the Convention.
    [p.120] It may be noted that in any one of these three contingencies the Parties to the conflict are free to entrust to the special organization (if it agrees) the other duties, independent of the Conventions, of the Protecting Power. It was not for the Convention to lay down rules on the point. It was a matter falling within the exclusive competence of the Parties concerned.
    The Diplomatic Conference refrained from any more precise indication, even by analogy, of the organization to which the paragraph relates. The organization may be one which is specially created for the sole purposes of Article 10, or it may be an organization already existing. The latter may be either specialized or not; it may be official or private, international or national. What matters is its impartiality.

    PARAGRAPH 2 -- ABSENCE OP PROTECTING POWER

    We here come to the actual appointment of the substitute for the Protecting Power. Under what conditions and at what moment does the paragraph become applicable?
    The text, as we have seen, gave rise to serious opposition, and even led to reservations (11). It was feared that a Detaining Power might appoint a substitute of its own choice, not approved by the Power of Origin who is primarily concerned, by the simple process of inducing the Protecting Power appointed by the Power of Origin to renounce its functions.
    These apprehensions were unfounded. In the first place the text does not speak of "the activities of ' the ' Protecting Power appointed at the outset of the conflict" but of "the activities of ' a ' Protecting Power". We can only repeat the essential point that the Convention does not affect the process of appointment of the Protecting Power, which is governed by international usage. The disappearance, renunciation or disclaimer of the Protecting Power originally chosen by the Power of Origin does not in any way deprive the latter of its freedom to appoint another neutral State to take the place of the first, or a third to take the place of the second, or a fourth to take the place of the third, and so on. These successive appointees are not "substitutes" for the first Protecting [p.121] Power. They are Protecting Powers on precisely the same footing as the first Protecting Power. So long as there is a Protecting Power of some sort, and the adversaries have not had recourse to the possibility for which paragraph 1 provides, only Article 8 is applicable. The case is the same where, the Parties to the conflict having had recourse to paragraph 1 and appointed a special organization, the organization ceases for one reason or another to function. Its disappearance does not in any way deprive them of the right to appoint, each for himself, an ordinary Protecting Power, Better still, the Protecting Powers they appoint for the discharge of the ordinary representative functions will in such case become automatically responsible under Article 8 for the duties for which the Conventions provide.
    The above considerations, the actual wording of paragraph 2, and the fact that it is the Detaining Power (that is to say, the Power which would appear to be the least suitable for the purpose) which is made responsible for ensuring the protection of enemy personnel fallen into its hands, all go to show that paragraph 2 cannot, and must not, be applied until all other possibilities of arranging for their protection by means of either a Protecting Power or a special organization -- both of which solutions imply the express consent of the Power of Origin -- have been exhausted.
    In practice such an eventuality could hardly occur, unless the Power of Origin ceased to exist. The Detaining Power could not in such a case be blamed for choosing a substitute without the consent, or in defiance of the wishes, of the Power of Origin, since the latter would not be in a position to conclude a valid agreement or, in fact, to express an opinion of any sort. Better a protector appointed by the Detaining Power itself than no protector at all. The same argument would hold good if the Power of Origin persistently refrained from appointing, or refused to appoint, a Protecting Power.
    The Detaining Power has not a completely free hand in the choice of the substitute. It has to "request a neutral State, or such an organization" to take the position. It cannot therefore appoint an allied Power. The State, if it is to be a State, must be neutral. It is, of course, possible for a State to be neutral (that is to say, not to be involved in the conflict on either side) and at the same time to be bound by a treaty of friendship with the Detaining Power. But its very neutrality will leave it a certain minimum of independence in relation to the Detaining [p.122] Power. It was hardly possible in the Convention to go into further detail. But it is obvious that a State which, while keeping out of the conflict, has previously broken off diplomatic relations with the camp opposed to the Detaining Power will be ineligible.
    The text leaves no choice as to the organization to which recourse may be had. There can only be one such organization, if there is one at all. The words "or such an organization" do not mean any organization which offers all guarantees of impartiality and efficacy. They can only refer to the organization mentioned in the previous line as being "provided for in the first paragraph above", that is to say, an organization appointed by previous agreement between the Contracting Parties, and consequently accepted in advance by the Power of Origin.
    The neutral State or organization thus appointed by the Detaining Power is not really a Protecting Power. Its appointment is exceptional, and is only made in order to apply the Convention. It entitles it to perform all the duties devolving upon a Protecting Power under the Convention, but no others.

    PARAGRAPH 3 -- IN DEFAULT OF SUBSTITUTES

    We come to the final stage where, no organization having been appointed under paragraph 1, and the Power of Origin being no longer in a position to appoint a Protecting Power, the Detaining Power, having made every effort under paragraph 2, has failed to find a neutral State. There are no longer any possible substitutes. It is then that, as a last resource, the Convention calls upon a humanitarian organization.
    The Convention's request in this case is no longer to "undertake the functions performed by a Protecting Power". It speaks only of "humanitarian functions". That is logical. There is no longer any question of a real substitute, and a humanitarian organization cannot be expected to fulfil all the functions devolving on a Protecting Power under the Conventions. What the humanitarian organization is asked to do, in the chaotic conditions which would exist if there were no longer any neutral States, is to undertake those activities, at least, which bring directly and immediately to the persons protected by the Convention, the care which their condition demands. This distinction has, moreover, the advantage of showing that the humanitarian organization referred [p.123] to in paragraph 3, unlike a Protecting Power or its substitute, does not act, as it were, as an agent or official, but rather as a voluntary helper. This is of great importance -- to the International Committee of the Red Cross at any rate -- in that it safeguards the
    independence of the organization; and that is an essential condition for its humanitarian work.
    The Detaining Power must request the intervention of the humanitarian organization, And should the humanitarian organization anticipate its approaches with a spontaneous offer of services, the Detaining Power must accept them.
    The obligation to ask for such services is unconditional. Consequently, a Detaining Power which was justified in declining the offer of services of a particular humanitarian organization, would not thereby be relieved of its obligation, but would have to ask for the co-operation of another organization. The same obligation would be operative in the event of the first organization which it approached, or which offered its services, ceasing to function for any reason.
    On the other hand, the obligation to accept offers of services is qualified by the condition "subject to the provisions of this Article"; and these provisions can only be those of the present paragraph and paragraph 4. The Detaining Power cannot therefore decline these offers of service, unless it has already applied for, and obtained, the co-operation of another qualified humanitarian organization, or unless the organization making the offer fails to furnish "sufficient assurances" as required by paragraph 4.
    It is obvious that the Detaining Power is always free to request, and accept, the simultaneous services of several humanitarian organizations.

    PARAGRAPH 4 -- REQUISITE QUALIFICATIONS

    The Protecting Power is primarily the agent of the Power of Origin, whose interests it safeguards ' vis-à-vis ' the adverse Power. The Convention imposes on it in this capacity humanitarian duties, which it asks the Protecting Power to perform as impartially as possible. That postulate does not deprive the Protecting Power of its primary character as representative of the Power of Origin. The substitute, on the other hand, who takes the place of the Protecting Power in the event of the [p.124] latter ceasing to function, is appointed by the enemy of the Power of Origin; and fears were expressed in the course of the discussions at the Diplomatic Conference that the Detaining Power might tend to appoint a neutral State or an organization devoted to its (the Detaining Power's) cause. Hence the desire to bring it home to the substitute that, although he was chosen by the Detaining Power, this course was an exceptional one adopted for want of a better alternative, that it did not make him the agent of the Detaining Power, and that he is
    charged by all the Contracting Parties with loyal co-operation in the application of the Convention in relation to the adversaries of the Detaining Power. Was this reminder indispensable? It would have no effect on a substitute of deliberate bad faith; but is there not a risk of its appearing to an honest substitute as an offensive suspicion? Our own feeling is rather that the paragraph is not so much an admonition to the substitute as a weapon placed in his hands to enable him to insist on the Detaining Power according him the means and independence necessary for the performance of his duties with the impartiality required by the Convention.
    As for the "sufficient assurances" required by the paragraph, reference is made to what was said above on the subject of paragraph 1 (12). The matter is one on which the Detaining Power will in practice be the sole judge; and, as it will be the sole judge, so it alone will bear the responsibility for all such deficiencies in the application of the Convention as are due to incapacity or lack of impartiality on the part of a substitute invited or accepted by it in the place of one better qualified.

    PARAGRAPH 5 -- PROHIBITED DEROGATIONS

    This paragraph, which was added to the drafts of the International Committee of the Red Cross by the Stockholm Conference, but only in the case of the Third Convention, was inserted by the Diplomatic Conference in all four Conventions. Its purpose is to ensure neutral and impartial scrutiny in all circumstances, including cases where one Party to the conflict has become subject to the domination of the other. An Occupying Power, temporarily or finally victorious, will not in future be able to evade the provisions of Article 10 by establishing, by agreement [p.125] with an enemy Government fallen under its influence, or actually set up by it, a system in which a special substitute, at its beck and call, would in actual fact place the sick and wounded and the medical personnel at its mercy, rendering any sort of supervision illusory. So long as a Detaining Power has protected persons in its charge, no plea of an arrangement with the enemy can be valid. It is bound either to continue to accept the intervention of the Protecting Power or, if there
    is no longer a Protecting Power, to provide a substitute in accordance with the provisions of Article 10.

    ' Paragraph ' 6 explains itself and calls for no comment.

    CONCLUSION

    It would be idle to deny that Article 10 is not all it might be. In spite of an obvious effort to carry matters to their logical conclusion, the Article remains incomplete and confused. It could hardly be otherwise in view of the difficulty of the subject-matter and the confused nature of the situations with which it deals. Its provisions may, perhaps, admit of different interpretations. But let us not go into them here. Let us rather consider the positive achievements of the Article.
    Like the two Articles which precede it, Article 10 supplements and reinforces Article 1 . The Convention is to be respected ' in all circumstances '. That requirement is so essential that the absolute undertaking of the Parties to the conflict is not enough. Independent, impartial and effective supervision from outside is also necessary; and, where even that is impossible, a final possibility is provided.
    The one thing that matters, the one thing that counts, is the principle set forth in Article 12 , the Article on which all the other provisions of the Convention depend. Such is its significance that even war, which is the ' raison d'être ' of the Convention, cannot prevail against it. So there may be many interpretations of Article 10; but only one true one -- that interpretation, namely, which is best fitted to give practical effect to the provisions of Article 12 .


    * (1) [(1) p.113] See above, pages 86 ff.;

    (2) [(1) p.114] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War ' (September 1, 1939 -- June 30, 1947), Vol. I, Part
    III, Chapter XIII, pages 515 ff.;

    (3) [(2) p.114] Ibid, Vol. I, Part III, Chapter VII, pages 353
    ff.;

    (4) [(3) p.114] See ' Report on the Work of the Conference of
    Government Experts for the Study of the Conventions for
    the Protection of War Victims ' (Geneva, April 14-26,
    1947), Geneva, 1947, pages 263-298;

    (5) [(1) p.115] See ' Final Record of the Diplomatic
    Conference of Geneva, 1949, ' Vol. II-B (on Article
    8/9/9/9) of the Stockholm draft);

    (6) [(1) p.116] See ' Final Record of the Diplomatic
    Conference of Geneva, 1949, ' Vol. II-B, pages 65-66;

    (7) [(2) p.116] See below, page 431. See also ' Final Record
    of the Diplomatic Conference of Geneva, 1949, ' Vol. II-B,
    on Article 7A, especially pages 27, 30 and 487;

    (8) [(1) p.117] Ten delegations made reservations on this
    point when signing the Convention. Reservations do not
    take effect -- if they are maintained -- until after
    ratification of the Convention. The reservations of
    Czechoslovakia and Yugoslavia, both of which countries
    have ratified the Convention, are as follows. The wording
    of both is identical.
    "The Government of the Czechoslovakian Republic
    (The Government of the Federal People's Republic of
    Yugoslavia) will not consider as legal a request by
    the Detaining Power that a neutral State or an
    international organization or a humanitarian
    organization should undertake the functions performed
    under the present Convention by the Protecting
    Powers, on behalf of the wounded and sick, or medical
    personnel and chaplains, unless the Government whose
    nationals they are has given its consent.";

    (9) [(2) p.117] See ' Final Record of the Diplomatic
    Conference of Geneva, 1949, ' Vol. II-B, especially page
    351;

    (10) [(1) p.118] See above, page 109;

    (11) [(1) p.120] See above, page 117;

    (12) [(1) p.124] See above, page 118;