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Commentary - Art. 11. Chapter I : General provisions
    [p.126] ARTICLE 11 -- CONCILIATION PROCEDURE


    This Article is completely new in the First Geneva Convention, although its main principles were already embodied 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. In the drafts which it submitted to the XVIIth International Red Cross Conference, the International Committee of the Red Cross had already proposed the amalgamation of these two provisions into 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 accepted.
    There was little discussion on the Article, which was adopted almost without alteration by the Diplomatic Conference. It was submitted with others to the so-called Joint Committee charged with the study of Articles common to all four Conventions. The Joint Committee referred the Article to its Special Committee, and the latter appointed a Working Party to consider all the provisions concerning the settlement [p.127] of disputes which might arise in the application of the Conventions. The proposal, put forward by the Working Party, to insert this Article in all four Geneva Conventions was approved in turn by the Joint Committee and the Plenary Assembly.
    The alterations made were in general intended to facilitate the action 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 as to the application of the Convention (as intended in 1929) that the Protecting Powers are to lend their good offices, but also in all cases where they deem it advisable in the interest of protected persons. Furthermore, it is explicitly laid down that the Protecting Powers shall act in this way when there is disagreement as to the interpretation of the provisions of the Convention. This latter provision is new.
    The only indication which the Convention contains as to the form which such good offices will take, is the provision made in paragraph 2 of the present Article for a possible meeting between the representatives of the Parties to the conflict. The Protecting Powers may, however, resort to other methods. They will undoubtedly in most cases try to achieve a reasonable 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 each of two belligerents ' vis-à-vis ' the other, or there may be two different Protecting Powers. In the latter case they can take action either severally or jointly. It is generally preferable to have an agreement concluded beforehand between the two Protecting Powers.
    During the Second World War there were several cases of disagreement between belligerents as to the application of the provisions of the 1929 Conventions. The Protecting Powers were inclined more often than not to regard themselves as agents, acting only on the instructions of the Power whose interests they safeguarded. In its new form this [p.128] paragraph invites them to take a more active line. The general tendency of the 1949 Conventions is indeed to entrust Protecting Powers with rights and duties considerably more extensive than those which would devolve upon them as mere agents, as well as a certain power of initiative. They thus become, as it were, the agents or trustees of all the Contracting Parties and act in such cases solely according to their own consciences (1). The task of countries which agree to play the part of Protecting Powers will naturally be much heavier now than it was under the 1929 Conventions.

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

    This paragraph combines provisions already found in Article 83, paragraph 3 , and Article 87, paragraph 2 , of the 1929 Convention relative to prisoners of war. It has first to be borne in mind that henceforward Protecting Powers have the right to act on their own initiative, and are no longer dependent, as the 1929 text might seem to imply, on the initiative of the Party to the conflict whose interests they safeguard. 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, resulted in the conclusion of special agreements on the treatment of prisoners of war and other problems of a humanitarian nature (2).
    [p.129] On the other hand, during the Second World War no meeting of this kind took place, so far at least as the International Committee of the Red Cross is aware. It is true -- and deplorable -- that the particularly bitter nature of the struggle made such meetings very difficult if not impossible. No matter how much care is given to the drawing up of the Geneva Conventions, situations calling for an adaptation of their provisions and unforeseen circumstances requiring special treatment, are always possible. The difficulty of coming to an agreement without direct contact between the belligerents, and the delays involved by such negotiations, are well known. In connection with the application 01 the First Geneva Convention such meetings might be of great value. They would for instance make it possible to select routes for the repatriation of the seriously wounded and sick. They would allow of arrangements being made for the relief of medical personnel, and would help to settle many other questions. There is reason to hope that the new
    role assigned to the Protecting Powers will often allow the condition of war victims to be improved considerably.
    The other 1929 provisions have been little changed. The Parties to the conflict are bound to give effect to the proposals made to them by the Protecting Powers with a view to a meeting. And the Protecting Powers may suggest that a neutral personage, possibly 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 are certainly calculated to facilitate to a great extent the application of the Geneva Conventions, and to ensure satisfactory treatment of the persons protected by those Conventions.
    It may be added that during the Diplomatic Conference one delegation was against any reference in this Article to disagreements as to the interpretation of the Convention, on the ground that its interpretation [p.130] 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 few words may well be said here concerning a provision whose insertion in the Convention was proposed by several delegations at the opening of the discussions of the Diplomatic Conference. These delegations asserted 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 41 A, to be inserted immediately after the Article relating to enquiry procedure (Article 52 of the present Convention (3)).
    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 (4)."

    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, in the course of which several delegates stressed the fact that such a provision was in opposition to Article 35 of the Statute 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 parties to its statutes. 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 an organ of that organization. After a lengthy discussion [p.131] the Conference decided to change the proposed Article into a Resolution (5), which was adopted without opposition. It reads as 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 adhere to them. Their keynote is universality. They are above and beyond all political and juridical problems.
    Nevertheless, the pressing recommendation contained in the Resolution quoted has a definite value of its own, and constitutes a powerful incentive to belligerents, in the circumstances indicated, to appeal to the Hague Court.


    * (1) [(1) p.128] This extension of their powers is a logical
    consequence of the general mission entrusted to them under
    Article 8: "The present Convention shall be applied with
    the cooperation and under the scrutiny of the Protecting
    Powers". See above, page 000;

    (2) [(2) p.128] Mme Frick-Cramer, in her article ' Le Comité
    international de la Croix-Rouge et les Conventions
    internationales pour les prisonniers de guerre et les
    civils, ' gives the following list of some of the
    principal agreements concluded: Copenhagen Agreement, in
    October-November 1917 (Germany, Austria-Hungary, Rumania,
    Russia, Turkey and various National Red Cross Societies);
    Agreements between Turkey, Great Britain and France,
    signed at Berne on 28 December 1917 and 23 March 1918;
    Franco-German Agreement, signed at Berne on 15 March 1918;
    Franco-German Agreement, signed at Berne on 26 April 1918;
    Austro-Serbian Agreement, signed at Berne on 1 June 1918;
    Agreement between Germany and Great Britain, signed at The
    Hague on 14 July 1918; Convention between Austria-Hungary
    and Italy, signed at Berne on 21 September 1918;
    German-American Agreement, signed at Berne on 11 November
    1918. (' Revue internationale de la Croix-Rouge ' Nos. 293
    and 295, of 1943).
    Several of these agreements were concluded, as will
    be seen, under the auspices of the Swiss Government, of
    which one of the members at the time was M. Gustave Ador,
    President of the ICRC. In most cases the negotiators of
    the two Parties did not sit together. Each delegation was
    in a separate room, and a neutral personage went from one
    room to the other transmitting the proposals made and the
    replies received. This procedure slowed down the work to
    some extent; but it enabled extremely satisfactory results
    to be achieved, without enemies having to sit face to
    face. M. Georges Cahen-Salvador, one of the french
    negotiators, gives a humorous description of this form of
    negotiation in his book ' Les Prisonniers de guerre, '
    pages 100 ff.
    Provisions concerning the treatment of medical
    personnel and their assignment to the care of prisoners of
    war figure in the agreements concluded. Several of the
    agreements also deal at some length with the problem of
    the repatriation of seriously sick or seriously wounded
    prisoners of war;

    (3) [(1) p.130] See below, page 374;

    (4) [(2) p.130] ' Final Record of the Diplomatic Conference of
    Geneva, 1949, ' Volume II-A, p. 230;

    (5) [(1) p.131] Resolution 1, see below, page 431;