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Commentary - Art. 8. Part I : General provisions
    ARTICLE 8. -- PROTECTING POWERS


    [p.93] GENERAL

    1. ' Historical background '

    This provision already existed in the 1929 Convention relative to the Treatment of Prisoners of War (Article 86 ), and was introduced into all four 1949 Conventions.
    A Protecting Power is, of course, a State instructed by another State (known as the Power of Origin) to safeguard its interests and those of its nationals in relation to a third Power (known as the Detaining Power). This concept corresponds to a time-honoured practice which has fine achievements to its credit but is not yet codified.
    The origin of this concept goes back to the XVIth century. Only the principal sovereigns then maintained embassies. The subjects of lesser princes, when living abroad, were not protected. That had certain disadvantages, especially where the national customs and outlook on life were very different from those of their home country. Certain great Powers then claimed, and asserted by treaties concluded with the countries of residence, the right to take under the protection of their embassies foreign nationals without national representation of their own.
    Later, the initiative passed to the Power of Origin, which, as it became progressively more alive to its duties towards its nationals abroad, began of its own initiative to have recourse to the good offices of a third Power. This practice spread, ranging from temporary representation limited to certain specified functions, to general representation of the interests of the Power of Origin in all countries where the Protecting Power maintained diplomatic or consular staff. The juridical position of the Protecting Power was differently regarded by different countries. Some countries considered themselves as deputizing for the Power of Origin, and negotiated officially in its name; others restricted themselves to authorizing their consuls to lend their good offices to foreigners under their protection. In war-time, however, the rôle of a Protecting Power was usually restricted to the custody of diplomatic and consular premises and archives, and the occasional forwarding of documents.
    Such was the situation in 1914, at the outbreak of the First World War. During the conflict, there was a particular problem which drew the world's attention and led to the expansion of the idea of the Protecting Power -- the problem, namely, of prisoners of war. Never had such multitudes of captives remained so long in enemy hands. [p.94] They were, of course, protected by the Hague Regulations of 1907. But those rules were summary, and however important they might be as principles of conduct, they often required clarification in practice, and this lack of precision resulted in their not always being respected as they should have been. The world was roused. The International Committee of the Red Cross, acting on past precedents, founded at the outset the Central Information Agency which, with its seven million index-cards, secured a great deal of publicity. The Committee went further still. Basing itself on the Hague Regulations which authorized the distribution of relief, it sent missions to visit the camps.
    If a purely private institution could in this way exercise unofficial but not ineffective control over the application of the Hague Regulations, why should not the Protecting Power be able to do the same? In actual fact, despite many difficulties and the unpopularity of duties which tended to make the general public regard them as enemy agents, the representatives of several Protecting Powers were able to visit the camps and they frequently obtained great improvements in the treatment of prisoners of war. As a result of their efforts, special agreements were also concluded between the adverse Parties with a view to establishing rules for the implementation of the Hague Regulations.
    As soon as the war was over, the International Committee of the Red Cross took the initiative of suggesting, in the light of the experience gained, that the Geneva Convention should be revised and that moreover a new Convention should be drawn up in order to clarify and supplement the Hague Regulations as a veritable prisoners-of-war code.
    The Diplomatic Conference of 1929, to which the drafts prepared by the International Committee of the Red Cross were submitted, considered that the rôle of the Protecting Powers should be clearly defined, in view of the fact that the Detaining Powers had not always facilitated the activities of the representatives of the enemy State's interests. After lengthy discussions, Article 86 of the 1929 Convention was adopted, providing a legal basis for the activities of the Protecting Powers (1).
    [p.95] The Article was excellent. It paid a tribute to the work achieved by certain Protecting Powers in the past, while at the same time legalizing such work in the future. It eliminated many material or political obstacles in the path of the Protecting Powers, and mitigated the ill-will which they had so often encountered. Henceforward their representatives would not be likely to be suspected of sympathy with the enemy. Their intervention would be in conformity with an international agreement.
    This Article, however, did not embody the idea of obligatory control by a neutral and independent agency which the International Committee of the Red Cross had included in its draft (2).
    Article 86 of the Prisoners of War Convention was not the only one that mentioned the Protecting Powers. They were expressly referred to in a dozen special provisions, which, for instance, authorized them to receive and forward documents.
    The Second World War clearly showed the value of this Article. It is true that there were neutral States which took a high view of their protecting mission. It is also true that various circumstances facilitated their task. Many belligerents, departing from former practice, chose one and the same Protecting Power to represent them in relation to all their enemies. Furthermore, the extension of the conflict greatly reduced the number of neutral Powers with the result that a great many Protecting Power mandates came to be concentrated in the hands of those remaining.
    It became more and more common for these neutral Powers to find themselves responsible for representing the respective interests of two opposing Parties at one and the same time (3). This gave them additional authority, and incidentally altered their rôle; for once a [p.96] Power represented the interests of two opposing belligerents, it became not so much the special representative of each of them, as the common agent of both, or a kind of umpire. This enabled it to bring directly into play that powerful instrument, the argument of reciprocity, to obtain the improvements desired.
    The value of the supervision envisaged and authorized by Article 86 of the Prisoners of War Convention had thus proved itself. But the existence of a Protecting Power was still necessary and millions of prisoners of war had been deprived of one through circumstances. In the absence of any control, the particularly serious nature of some of the violations of the Convention which were committed modified the conception of what that control should be. The idea of the private interest of each of the belligerents was replaced by the conception of the overriding general interest of humanity, which demanded such control, no longer as a right, but as a duty.
    The International Committee of the Red Cross, encouraged by the opinions of the Preliminary Conference of National Red Cross Societies in 1947 and the Conference of Government Experts in 1947, directed its attention to three points:

    1. The extension to all the Conventions of the supervision exercised by
    the Protecting Power.

    2. Arrangements for providing a substitute for a Protecting Power no
    longer able to act.

    3. Compulsory supervision.

    The draft resulting from the study of these questions, as approved and completed by the XVIIth International Red Cross Conference at Stockholm, served as a basis for the work of the Diplomatic Conference of 1949. This draft reproduced the essential features of Article 86 of the 1929 Convention with the exception of the provisions dealing with visits to camps which are included in Article 126 . But it replaced its optional form ("possibility of collaboration between the Protecting Powers") by an imperative form ("The present Convention ' shall be ' applied with the co-operation and ' under the supervision ' of the Protecting Powers..."); moreover, it added a separate draft Article providing for the compulsory replacement of Protecting Powers which ceased to function (4).

    [p.97] 2. ' Discussions at the Diplomatic Conference of 1949 '

    Surprisingly enough, the Stockholm draft gave rise to hardly any objections at the Diplomatic Conference (5). The new form proposed: "The Convention ' shall be ' applied with the co-operation and under the supervision..." was not to much as discussed, the necessity for increased supervision being evident to everyone. The English translation of the word "contrôle" was the subject of the longest discussion; the English-speaking delegations were all without exception opposed to the adoption of the English word "control" which is much stronger and has a connotation of domination that it does not have in French. It must be admitted, however, that the French word "contrôle" is being increasingly used with the English meaning. Four translations were in turn suggested and discussed at length before agreement was finally reached on the word "scrutiny". The discussion was not purely academic for it enabled the Conference to define precisely the powers which it intended to confer on the Protecting Power (6).
    The need for increased control being once admitted, there was no further difficulty. No one thought of contesting the Protecting Power's right to appoint additional staff. On the contrary, as the Protecting Power was no longer merely "authorized" but was instructed to exercise supervision, the importance of its disposing of a sufficiently large and qualified staff was admittedly increased. It was to this end that the Conference placed the consular staff of the Protecting Power on the same footing as its diplomatic staff, the draft text having referred only to the latter. On the other hand, the Conference could not agree to adopt the last sentence of paragraph 1 which had been hastily and generously added at the Stockholm Conference to the original draft submitted by the International Committee of the Red Cross. That sentence read as follows: "The said Power may only refuse its approval if serious grounds are adduced." In normal times -- and the more so in time of war -- a Government may refuse to accept or to give official recognition to the
    diplomatic or consular representatives of another State without being obliged to state its reasons for so doing. It would not be logical for occasional delegates, appointed temporarily and in an auxiliary capacity, to have a privileged status in this respect.

    [p.98] PARAGRAPH 1. -- GENERAL ROLE OF THE PROTECTING POWERS

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

    This is a command. The English text, which is authentic equally with the French, makes this absolutely clear (7).
    The command is addressed in the first instance to the Parties to the conflict. They are bound to accept the co-operation of the Protecting Power; if necessary, they must demand it. In the course of the discussion, there was ample evidence of the desire of those participating to establish a stricter control procedure and to make it obligatory.
    But the command is also addressed to the Protecting Power, if the latter is a party to the Convention. The Protecting Power is obliged to participate, so far as it is concerned, in the application of the Convention.
    What does the rôle of the Protecting Power involve, and what should be understood by "co-operation" and "scrutiny"?
    It should be noted first of all that it is not only Article 8 which mentions the intervention of the Protecting Power. Express reference is made to it in some thirty other Articles (8).
    [p.99] It may also be noted that the Second Convention contains only one provision of its own in which the Protecting Power is mentioned, whereas the First and Fourth Conventions contain respectively three and thirty-three such provisions.
    The following question therefore arises: do the co-operation and the scrutiny laid down in principle in Article 8 consist solely of the activities referred to in the Articles listed above, or is the Protecting Power assigned a general mission in Article 8 giving it the right -- and the duty -- to intervene in cases other than these particular ones?
    The reply to this question emerges clearly enough from the general desire, expressed during the discussions at the 1949 Diplomatic [p.100] Conference, to establish a genuine supervisory organization with wide powers (9). Moreover, in the text of the provision, the words "their mission ' as defined ' in the present Convention" have been replaced by "their mission ' under ' the present Convention", thus emphasizing that there has been no attempt at giving an exhaustive "definition" of the duties of the Protecting Powers in these particular Articles alone.
    The first sentence of Article 8 is therefore not inserted merely for purposes of style. It entitles a Protecting Power to undertake any intervention or initiative which may enable it to verify the application of any provision of the Convention, or improve the application of the Convention. All the occasions upon which a Protecting Power would have to intervene cannot be envisaged here, nor can the conditions under which interventions take place. They will be determined by the circumstances of the conflict and the means at the disposal of the Protecting Power. Part II of the Convention (Articles 13 to 16) provides for scrutiny of the general treatment accorded to prisoners of war by the Detaining Power. Similarly, in Part III, Articles 17 to 108 lay down the conditions for captivity. Scrutiny by the Protecting Power is of the utmost importance, whether in relation to evacuation, transfer, quarters and food, labour, financial resources, relief, or penal or disciplinary sanctions.
    The Protecting Power's task may thus be an extremely heavy one, involving problems of recruiting staff, let alone that of finding suitable premises and material resources. In most cases such services will be installed in the premises of the embassy or legation of the country whose interests are protected; these are, incidentally, premises and installations which the Protecting Power will generally be responsible for safeguarding and administering. The expenses incurred in such work should certainly be borne by the Power whose interests are protected. Special arrangements will be made in each individual case.
    The procedure for appointing a Protecting Power is not laid down in the Convention. It is in practice a simple matter. The belligerent Power which wishes its interests to be protected asks a neutral Power if it is willing to represent it. Should the neutral Power agree, it asks the enemy Power for authorization to carry out its duties. If the enemy Power gives its consent, the neutral Power then starts its work as a Protecting Power. The enemy Power is not obliged to accept any neutral Power automatically. It may consider, for reasons determined only by itself, that the requesting Power, although neutral, [p.101] will not carry out its protective mission in an impartial manner. Nevertheless, it cannot refuse all the neutral Powers in turn; that would be entirely contrary to the spirit of the Convention and to international usage.
    The Protecting Power will naturally carry out its duties throughout the territory of the belligerent State and its dependencies, unless otherwise arranged. What is the position in regard to occupied territories? The activities of the Protecting Power are gradually extended to such territories as they are occupied. But another Protecting Power could conceivably be appointed specially for the occupied territories. What is the position if the occupation extends to the whole territory of the State? In such cases Protecting Powers have sometimes considered that their duties were at an end, The neutral Powers protecting the interests of Germany considered, for example, that their duties were at an end when the German Government disappeared following the capitulation in May 1945.
    It may be wondered whether such an attitude on the part of the neutral Powers should not be deemed incompatible with the spirit of the new Convention and whether the neutral Powers, having received a regular mandate from a recognized Government, should not continue their activities as long as there are still protected persons within the meaning of the Convention. Although the Protecting Powers act as the special representatives of a given Government so far as their general activities are concerned, they are the representatives not of that Government alone but of all the States party to the Geneva Conventions when carrying out their functions under those Conventions. In any case, if the neutral Power appointed considered that its duties were at an end in such a contingency, the provisions of Article 10 would come into play and a substitute would have to be found.

    2. ' Second and third sentences: Executive agents '

    All members of the diplomatic and consular staff of the Protecting Power are ipso facto entitled, in virtue of their capacity as official representatives of their Government, to engage in the activities arising out of the Convention. This rule covers not only members of the staff who were occupying their posts when hostilities broke out, but also those who are appointed later. It makes no difference whether they are employed solely on the work of the Protecting Power as such, or whether they carry out other diplomatic or consular duties as well. No formalities are required except those which their diplomatic or consular rank would entail in normal times ' (agrément, exequatur). ' [p.102] Special consent is required only for the auxiliary delegates, specially appointed by the Protecting Power, who do not have diplomatic or consular status.

    PARAGRAPH 2. -- FACILITIES

    This provision was also taken from Article 86 of the 1929 Convention, and there is no need to comment upon it. In Article 86 , it referred only to visits to camps. Here it is quite general, and applies to ' all ' the activities of the Protecting Power. It is expressly confirmed by Article 126 .

    PARAGRAPH 3. -- LIMITS

    This paragraph is the result of a compromise. It was adopted to give satisfaction to the supporters of an amendment which, in the opinion of the majority, was too restrictive and might virtually paralyse any activity on the part of the Protecting Power. While trying to give the fullest possible scope to the needs of humanity, the delegates at the Conference could not ignore the requirements of national security.
    Although it permits no sanctions other than the withdrawal of ' exequatur ' or a request for the recall of the official at fault, this clause none the less serves as a solemn reminder to the Protecting Power of the nature of its mission, which is to co-operate with the belligerent Power as the party primarily responsible for the application of the Convention. The Protecting Power is no longer merely entrusted with the duty of exercising the right of scrutiny as the authorized agent of one of the Parties to the conflict. It must also ' co-operate ' in applying the Convention in order to ensure that prisoners of war are accorded the humane treatment specified therein. Thus, when instructing its agents, the Protecting Power should not forget to remind them that all their efforts should be directed towards the strict application of the Convention, without the slightest irregularity which, throwing suspicion on them, and perhaps on their colleagues and Government, might restrict or compromise the effectiveness of their work; for that would increase
    the suffering caused by the war.

    CONCLUSIONS

    As it stands, Article 8 is not perfect. But if one thinks of the tremendous advance which it represents in humanitarian law, it can be considered satisfactory.
    [p.103] This Article presupposes the existence of a Protecting Power appointed by the Power of origin. It does not, however, make the appointment obligatory, and in no way modifies the status of a protecting authority in time of war, as determined by international usage. As we shall see later, Article 10 permits the High Contracting Parties to agree to entrust to an organization which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers.
    By making a duty of what formerly was merely the optional exercise of a right, Article 8 reinforces the Convention's effectiveness. It does even more that that: it calls in a third Power, a neutral Power and as such immune from the passions of war, and invokes the aid of this third Power in respecting fundamental principles (10).
    Article 1 reads as follows: "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." This undertaking applies to a Protecting Power which is a party to the Convention as it does to the belligerent Powers. It is right that this should be so, It illustrates the joint responsibility of nations in the defence of the protective barrier which they have raised against the evils of war by signing the Geneva Conventions.


    * (1) [(1) p.94] See ' Actes de la Conférence diplomatique de
    1929, ' pp. 512 ff.
    The text of this Article reads as follows:
    "The High Contracting Parties recognize that a
    guarantee of the regular application of the present
    Convention will be found in the possibility of
    collaboration between the Protecting Powers charged with
    the protection of the interests of the belligerents; in
    this connection, the Protecting Powers may, apart from
    their diplomatic personnel, appoint delegates from among
    their own nationals or the nationals of other neutral
    Powers. The appointment of these delegates shall be
    subject to the approval of the belligerent with whom they
    are to carry out their mission.
    The representatives of the Protecting Power or their
    recognized delegates shall be authorized to proceed to any
    place, without exception, where prisoners of war are
    interned. They shall have access to all premises occupied
    by prisoners and may hold conversation with prisoners, as
    a general rule without witnesses, either personally or
    through the intermediary of interpreters.
    Belligerents shall facilitate as much as possible the
    task of the representatives or recognized delegates of the
    Protecting Power. The military authorities shall be
    informed of their visits.
    Belligerents may mutually agree to allow persons of
    the prisoners, own nationality to participate in the tours
    of inspection.";

    (2) [(1) p.95] Although Article 88 stated: "The foregoing
    provisions do not constitute any obstacle to the
    humanitarian work which the International Committee of the
    Red Cross may perform for the protection of prisoners of
    war with the consent of the belligerents concerned.";

    (3) [(2) p.95] At one time Switzerland alone was Protecting
    Power for no fewer than thirty-five belligerent countries;

    (4) [(1) p.96] See the commentary on Article 10 below;

    (5) [(1) p.97] In the Stockholm draft, the provision under
    study appeared as Article 7 (Article 6 of the First
    Convention and Article 7 of the Second and Fourth
    Conventions). It was therefore discussed by the Diplomatic
    Conference of Geneva as Article 6/7/7/7 before becoming
    Article 8/8/8/9 in the final text;

    (6) [(2) p.97] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-B, ad Articles 6/7/7/7, pp.
    19-20 and 57-58;

    (7) [(1) p.98] The French text reads: "La Convention sera
    appliquée avec le concours..." The words "shall be" in the
    English text show that the future imperative has been used
    and not the simple future;

    (8) [(2) p.98] These are as follows:
    (a) Among the general provisions common to all four
    Conventions:
    Art. 10: substitutes for Protecting Powers;
    Art. 11, para. 1: loan of good offices in cases of
    disagreement as to the application or interpretation
    of the Conventions;
    Art. 128: communication of translations of
    Conventions during hostilities.
    (b) Among the provisions peculiar to the Third
    Convention:
    1. Acting as an intermediary:
    Art. 23, para. 3: transmission of information
    concerning the geographical location of camps;
    Art. 62, para. 1: transmission of working rates of
    pay;
    Art. 63, para. 3: transmission of notifications of
    payment;
    Art. 66, para. 1: transmission of lists of credit
    balances;
    Art. 68, para. 1: transmission of claims for
    compensation;
    Art. 69: transmission of notification of measures
    taken in regard to correspondence and relief;
    Art. 77, para. 1: transmission of legal documents;
    Art. 120, para. 1: transmission of death
    certificates;
    Art. 122, para. 3: transmission of identity
    particulars.

    2. Supervision, and means to facilitate supervision:

    Art. 56, para. 3: inspection of record of labour
    detachments;
    Art. 78, para. 2: receipt of complaints and requests
    by prisoners of war, and reports on situation in
    camps;
    Art. 79, para. 4: approval by Detaining Power of
    elected prisoners' representatives;
    Art. 81, para. 4 and 6: communication with
    prisoners'representatives, examination of reasons for
    dismissal;
    Art. 96, para. 5: inspection of record of
    disciplinary punishments;
    Art. 126, para. 1: visits to camps and places of
    internment.

    3. Activities connected with the financial resources of
    prisoners of war:
    Art. 58, para. 1: determination of allowances in
    ready money;
    Art. 60, para. 4: consideration of limitations on
    advances of pay;
    Art. 65, para. 2: inspection of prisoners' accounts.

    4. Activities connected with correspondence and relief
    for prisoners of war:
    Art. 71, para. 1: limitations on correspondence;
    Art. 72, para. 3: limitations on relief;
    Art. 73, para. 3: supervision of distribution of
    relief;
    Art. 75, para. 1: supply of special means of
    transport; use of other means of distribution for
    relief shipments (Article 9 of Regulations in Annex
    III);

    5. Activities of a judicial character:
    Art. 100, para. 1: notification of offences
    punishable by the death sentence;
    Art. 101: receipt of detailed communication
    concerning death sentence, six months before
    execution;
    Art. 104, para. 1: receipt of notification of
    judicial proceedings;
    Art. 105, para. 2: judicial assistance;
    Art. 107, para. 1: notification of findings, sentence
    and right of appeal.

    6. Activities in case of transfer of prisoners of war to
    another Power:
    Art. 12, para. 3: notification to State of origin in
    the event that such Power fails to carry out its
    obligations.

    7. Activities connected with Mixed Medical Commissions:
    Participation in appointment (Art. 2 of Regulations
    in Annex II).
    Substitution for International Committee of the Red
    Cross for appointment (Art. 5 of Regulations in
    Annex II);

    (9) [(1) p.100] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949, ' Vol. II-B, ad Art.
    6/7/7/7, pp. 344 ff.;

    (10) [(1) p.103] If the Protecting Power is not a party to the
    Convention, this mission under the Convention is
    obligatory only in so far as the Protecting Power
    explicitly accepts it; in fact, however, there are very
    few Powers which are not party to the Convention;