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Commentary - Art. 9. Part I : General provisions
    ARTICLE 9 -- PROTECTING POWERS


    [p.81] GENERAL

    1. ' Historical background '

    A provision dealing with the part played by Protecting Powers in connection with the Convention's application had been included in the 1929 Prisoners of War Convention (Article 86 ). When a new Convention for the protection of civilians was being drawn up in 1949, it was naturally suggested that a similar provision should be introduced.
    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 State (known as the State of Residence). It will be seen at once that the activities of a Protecting Power are dependent upon two agreements: the first between the Power of Origin and the Protecting Power and the second between the Protecting Power and the State of Residence.
    Protecting Powers have existed since the XVIth century. Only the larger States then had embassies, and for reasons of prestige they often protected the interests of small or medium-sized countries and of their nationals. Later on, some of these small and medium-sized countries asked the great Powers to undertake the protection of their interests in countries where they themselves were not represented. There are still cases of this practice at the present time.
    The activities of the Protecting Powers in this connection were of a most varied nature, ranging from special representations in particular cases to the general and permanent protection of the interests of nationals of the protected country. This activity could not, of course, have the effect of shielding protected persons from the laws of the State of Residence; it was aimed rather at ensuring that they were treated in accordance with those laws and with international treaties and custom. This is important, since the safeguarding of foreign interests in wartime is merely one case of protection among others, with this difference, however, that the existence of a State of war makes it more necessary, while at the same time limiting it in some ways. In actual fact the role of a Protecting Power in Wartime has often been restricted to the custody of diplomatic and consular premises and archives, and the occasional forwarding of documents.
    That was, in short, the situation in 1914, at the outbreak of the First World War. The very large numbers of prisoners of war on either side and the time their captivity lasted very quickly raised the question of the supervision of their treatment -- to which no answer [p.82] had previously been found. The Regulations annexed to the Fourth Hague Convention of 1907 contained certain brief rules concerning the treatment of prisoners of war, but made no provision for the possibility of supervision. Civilians, whether interned in the territory of the Parties to the conflict or detained in occupied territory, were not protected by any international treaty; all that could be applied to their case was customary law, in so far as it could be determined.
    The International Committee of the Red Cross was very soon successful in obtaining permission from the principal belligerents, to visit prisoner-of-war camps. It sent many missions to such camps and in certain cases its delegates were also allowed to visit the enemy civilians interned in the territory of the Parties to the conflict. The Protecting Powers were granted the same prerogatives and they too visited prisoner-of-war and civilian internment camps. Neither the International Committee of the Red Cross nor the Protecting Powers were able to take any action, however, in regard to the relations existing in occupied territory between the Occupying Power and the population.
    When the Prisoners of War Convention was being drawn up in 1929, the need for supervision was recognized. This duty was assigned to the Protecting Powers.
    Under the system set up by the 1929 Convention, however, the Protecting Power remained a private representative -- a voluntary representative, moreover -- and duties could not be assigned to it, since it acted solely at the behest of the appointing Power. The most that could be done was to recognize the activities of the Protecting Power, and provide them with a legal basis by requiring the Detaining Power to tolerate and even to facilitate them. Article 86 of the 1929 Prisoners of War Convention therefore began with the following words: "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; ...".
    The Article paid tribute to the work accomplished by certain Protecting Powers in the past, while at the same time legalizing such work in the future. Moreover, by giving certain details concerning the activities in which the Protecting Powers might engage, it eliminated many material and political obstacles. Henceforward their representatives would be less open to suspicion of sympathizing with the enemy, since their intervention would be arranged for in advance and desired.
    Nevertheless this Article had the drawback of crystallizing the Protecting Powers'special position as agents of the belligerent States. [p.83] It did not make their supervision compulsory, and yet it gave them no authority to act on their own initiative; the Protecting Power had to be content to carry out the instructions it received; although it naturally remained free not to do so if in certain given cases it considered that its own position might be prejudiced by the representations it was called upon to make.
    So far as it went, Article 86 of the 1929 Convention proved to be of very great value during the Second World War. Many neutral States took a broad view of their protecting mission, and their task was also facilitated by circumstances; for in several cases the same Protecting Power found itself representing two opposing States. This altered its rôle very appreciably; for once a Power represented the interests of two opposing belligerents, it became as it were an umpire and this enabled it to use the argument of mutual advantage to obtain the improvements desired.
    The system by which the Protecting Powers supervised the application of the Convention certainly proved its value during the Second World War; but civilians were still without the protection of any definite provisions, as they had been during the First World War. However, as we have seen, enemy nationals who were interned in the territory of the Parties to the conflict were for the most part placed on the same footing as prisoners of war and given the benefit of the provisions relating to them, in particular so far as the activities of the Protecting Powers were concerned. Those Powers gave the same service to them as to the prisoners and also helped enemy civilians in the territory of the Parties to the conflict who were not interned, especially by forwarding remittances or relief consignments received from their country of origin. On the other hand, it was in most cases impossible for the Protecting Powers to act in occupied territories, either because they had been refused access to the territory in question or because they were no
    longer recognized as Protecting Powers following the occupation; at the very most they were, in certain cases, permitted to visit camps where enemy civilians were interned in occupied territory; but this was not allowed in the case of nationals of the occupied territory itself. British and American citizens interned in France by the German authorities could, for example, be visited by agents of the Powers which represented British and American interests in Germany.
    The system of Protecting Powers was deficient in certain important respects during the Second World War. The functioning of a Protecting Power presupposes the existence of agreements in which three States participate. If any one of those States does not recognize the Government of the other two States, the appointment of a [p.84] Protecting Power becomes impossible. This occurred, for example, in the case of all the Governments of occupied countries which established themselves outside their national territory. In other cases the Protecting Powers, with the best will in the world, were unable to carry out any real work on behalf of war victims.
    The experience gained in the Second World War showed the absolute necessity for supervision. When it was lacking -- both in the case of prisoners of war without a Protecting Power and in that of the civilian population of occupied territories -- the violations and exactions were more numerous and more serious and the victims suffered the most.
    Accordingly, in the preliminary work carried on after 1945, the International Committee had three main objects in view:

    (a) The extension to all the Conventions of the supervision exercised by
    the Protecting Powers.

    (b) Compulsory supervision.

    (c) Arrangements for providing a substitute in the absence of a
    Protecting Power.

    The study devoted to these questions produced the draft text which was to serve as a basis for the work of the Diplomatic Conference of 1949: "The present Convention shall be applied with the co-operation and under the supervision of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict...".
    The provisions concerning the visiting of protected persons and those providing for the compulsory appointment of substitutes for Protecting Powers which ceased to function, were in each case made the subject of a separate Article.

    2. ' Discussions at the Diplomatic Conference of 1949 '

    Surprisingly enough, the Stockholm Draft gave rise to hardly any objections at the Diplomatic Conference (1). The new form proposed: "the Convention ' shall be ' applied with the co-operation and under the supervision ..." was not so 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 both in the Joint Committee and in its Special [p.85] Committee. As previously at Stockholm, the English-speaking delegations were all, without exception, opposed to the adoption of the English word "control", and rightly so, since it is by no means an exact translation of "contrôle", being much stronger and implying domination. It must be admitted, however, that the French word "contrôle" is being increasingly used with the English meaning. It is not uncommon to hear that a company controls ("contrôle") a business when it possesses the major part of its shares and consequently directs it, or that a regiment controls ("contrôle") a
    crossing of which it has taken possession. 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 upon the Protecting Power (2).
    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 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 adopted a new proposal which placed the consular staff of the Protecting Power on the same footing as its diplomatic staff, the draft text having only referred to the latter.
    A very satisfactory Article was thus evolved. Unfortunately, it ran the risk of being considerably weakened by the following additional amendment:

    "With regard to their co-operation in the application of the Conventions, and the supervision of this application, the activity of the Protecting Powers or of their delegates may not infringe the sovereignty of the State or be in opposition to State security or military requirements."

    The purpose of this amendment was to prevent a Power from being accused of violating the Convention on account of its having temporarily restricted the activities of the Protecting Power in exceptional cases because of military requirements or for security reasons (3). The amendment was keenly opposed. Some delegates wished to reject it; others felt that although it might temporarily be necessary to restrict the activities of the Protecting Power, it would be better for the restriction to apply to a particular provision rather than to the general [p.86] Article. A compromise formula was then proposed (4), and was finally adopted, as paragraph 3, after a slight but important alteration had been made, the words "the limits of their mission ' as defined in ' the present Convention" being replaced by a more general form, "their mission ' under ' the present Convention." It was pointed out that the Convention did not, strictly speaking, define the mission of the Protecting Powers (5).

    PARAGRAPH 1. -- GENERAL ROLE OF THE PROTECTING POWERS

    A. ' First sentence: Obligatory character '

    This is a command. The English text, which is authentic equally with the French, makes this absolutely clear (6). It is no longer therefore a case of collaboration being merely possible, and of supervision being authorized, at it was in the 1929 Prisoners of War Convention.
    This command is addressed in the first instance to the Parties to the conflict and to the Occupying Powers, since the responsibility for application is theirs. They are bound to accept the co-operation of the Protecting Power; if necessary they must demand it. The whole Convention shows that it was intended to exclude any possibility of the protected persons not having the benefit of the services of a Protecting Power or a substitute for such a Power.
    An obligation is also laid on the Protecting Power, if the latter is party to the Convention. The Protecting Power must not wait until the Party to the conflict, in relation to which it safeguards the interests of the Power which appointed it, demands its co-operation; it must take the first step. The Protecting Power is obliged to participate, so far as it is concerned, in the application of a Convention by which it is bound. Article 9 is the basis of the Protecting Power's activities for the purposes of this Convention. It is nevertheless mentioned on numerous occasions in individual provisions of the Convention. Article 143 is of particular importance, since it lays down the conditions under which the Protecting Powers'delegates are to have access to the protected persons. The other references to the Protecting Power are often important, a case in point being the clause in Article 30 which establishes the right of every protected person to make application [p.87] to the Power protecting his interests. There are in all 37 references to the Protecting Power in
    this Convention (7).
    Quite apart from the express references to the Protecting Power that Power must undoubtedly not only supervise the application of the whole Convention, but also take part in its application should the need arise; the references in question do not restrict its action. The Diplomatic Conference intended to give it an imperative mission with very wide terms of reference and extensive powers to carry it out.
    The first sentence of Article 8 is not inserted merely for purposes of style; it has its own value. It entitles a Protecting Power to intervene or take action on its own account in any way and on any occasion for the purpose of checking the application of any provision of the Convention, or of helping to ensure that it is better applied. Its action will be determined by the circumstances of the conflict and the means at the Protecting Power's disposal.
    The Protecting Power's task may be an extremely heavy one in certain cases where the State concerned has few diplomatic representatives. It will often be a real problem to set up an organization which may require a staff of several hundred people for a single country, and it will be necessary to find premises and to have certain 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, buildings 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 financial arrangements will be made in each individual case.
    The procedure for appointing a Protecting Power is not laid down in the Convention. It is quite 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 political reasons for example, that the neutral Power in question is not sufficiently neutral in its eyes to carry out its protective mission in an impartial manner. Although the enemy Power is not forced to accept any neutral Power proposed to it, it cannot refuse all the neutral [p.88] 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 representing the interests of the occupied State in the State opposed to it are gradually extended to such territories as they are occupied. But another Protecting Power could conceivably be appointed 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, as we have pointed out elsewhere, 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 11 would come into play and a substitute would have to be found.
    The task of the Protecting Powers will be a particularly onerous one in occupied territories. They will have to investigate the position of people living in such territories and exercise supervision; but that is not all; they will also have to consider whether the arrangements made by the Occupying Power are compatible with the Convention. According to Article 55 , for example, the Protecting Power is at liberty to verify, at any time and without hindrance, the state of the food and medical supplies in occupied territories. Moreover the whole field covered by the penal legislation enacted by the Occupying Power is subject to examination by the Protecting Power. It should, lastly, be remembered that in occupied territory the whole of the population is protected by the Convention and each protected person is entitled under Article 30 to make application to the Protecting Power. One can well imagine, therefore, that the work of a Protecting Power in [p.89] occupied territory may make it necessary to set up services much larger than those
    established by various Protecting Powers in the territory of the Parties to the conflict during the Second World War.

    B. ' 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 sent to relieve or assist them. 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) '. Special consent is only required for the auxiliary delegates, specially appointed by the Protecting Power, who do not have diplomatic or consular status. More often than not these will be persons recruited in the country where the Protecting Power has to act, from among its own nationals or from those of neutral countries. It is only natural, therefore, that the State
    of Residence should be entitled to refuse its consent, in particular where it has reason to fear that these auxiliary delegates, knowing the country and perhaps having connections there, may take advantage of the facilities for moving about and making contacts which their duties afford, to engage in activities that have but little connection with the application of the Convention and may be harmful to the security of the State.
    In occupied territories the Protecting Power will often find it necessary to establish permanent delegations, making use of its own consulates if any. It will probably also be able to make some use of the public buildings of the State whose interests it is protecting, provided of course that they are not requisitioned by the Occupying Power or utilized by local government services. It will also certainly be necessary to establish a degree of collaboration with the authorities of the occupied territory who remain there.

    PARAGRAPH 2. -- FACILITIES

    This provision is quite general, and applies to all the activities of the Protecting Power. Bearing in mind what we have said above the reader will readily imagine the numerous practical facilities which the Protecting Power will need if it is to carry out its duties under satisfactory conditions: premises, means of transport, visas, etc.

    [p.90] PARAGRAPH 3. -- LIMITS

    This paragraph is a compromise formula. It was adopted to give partial satisfaction to the supporters of an amendment which, in the opinion of the majority, was too restrictive and would indeed make it possible to paralyse practically any activity on the part of the Protecting Power (8). While trying to give the fullest possible scope to the needs of humanity, the delegates at the Conference could not, in their capacity as representatives of Governments, completely ignore the requirements of national sovereignty. In the paragraph we accordingly find a reminder of the existence of this national sovereignty, which has, incidentally, been seriously encroached upon in many of the provisions of the Geneva Conventions, beginning with the original Convention of 1864 -- not to mention all the other international Conventions or institutions which tend more and more to restrict it in favour of a higher interest.
    The first sentence, with its appendix "they shall, in particular, take account...", makes no provision for sanctions. What is to happen if the agents of the Protecting Power exceed their mission and, while carrying out their duties, engage in acts harmful to the security of the State? The text is silent on this point, so that the situation is the same as it would be if the provision did not exist. Even so, a Government which had good reason to complain of the activities of one of the Protecting Power's agents, would not be without a remedy. It could make the necessary representations; it could ask for the recall of the offending agent or designate him as a persona non grata; it could refuse him the necessary facilities.
    In these circumstances it must be wondered whether, with such a provision ready to hand, a belligerent Power will not be tempted to resort to it lightly and so, in one way or another, restrict the activities of the Protecting Power, even where such activities are purely humanitarian. The Conference thought fit to adopt this provision, however -- not so much because it was necessary as because it provided a means of combating an amendment which was still more restrictive; let us therefore try to see what positive features it has to offer.
    Without sanctions, it serves none the less as a solemn reminder to the Protecting Power of the nature of its mission, which will in future take the form of co-operation with the belligerent Power as the Party primarily responsible for the application of the Convention. The Protecting Power, as the authorized agent of the enemy, is no longer merely entitled to exercise the right of scrutiny of the latter as [p.91] co-contracting party. Not only ' must ' the Protecting Power exercise this right of supervision; it must also ' co-operate ' in applying the Convention, the whole purpose of which is to ensure respect for a higher principle -- the principle, namely, that protected persons must always be treated humanely and without any adverse distinction. Thus, when instructing its agents, the Protecting Power should not forget to bring this provision to their notice. It should remind them that, as its representatives under the Convention, all their efforts should be directed exclusively towards the achievement of the above purpose, and
    that their task is too noble, too essential to mankind, to admit of the slightest irregularity which, by throwing suspicion on the officials in question, and perhaps on their colleagues and Government, might compromise or even simply restrict the work; for that would be equivalent to increasing the suffering due to the war.
    In the First and Second Conventions, this paragraph contains an additional restriction expressed in the following sentence: "Their activities shall only be restricted as an exceptional and temporary measure when this is rendered necessary by imperative military necessities". The restriction is understandable, as these two Conventions will usually be applied on the battlefield or in its immediate vicinity, so that it is hardly conceivable that the belligerents would authorize the representatives of the Protecting Power to go to the actual spot. There was no call for this restriction in the present Convention, which mainly affects areas behind the lines, although, as we have already said, it is in fact applicable as soon as enemy troops penetrate into the territory of the opposing side.

    CONCLUSIONS

    As it stands Article 9 is not perfect; far from it, but what has to be considered is the huge advance which it represents in international humanitarian law. It has to be realized that, to achieve what they did, the diplomats assembled in Geneva had to take into account divergent opinions; they had to reconcile the claims of the sovereignty of their respective countries with the claims of humanity; and they had to harmonize two opposite conceptions of the role of the Protecting Power, viewed by some as their agent (of whom the maximum is demanded), by others as the agent of the enemy (to whom the minimum is accorded). When it is remembered, finally, that the legal relations between the Protecting Power and the Power of Origin on the one hand, and then again between the Protecting Power and the State of Residence, are of the most varied nature, it must surely be admitted that this Article is on the whole satisfactory.
    [p.92] Article 9 presupposes the existence of a Protecting Power appointed by the Power of Origin. It does not make the appointment obligatory, and in no way modifies the status of the Protecting Power as determined by international usage. The Protecting Power therefore remains the special representative of one of the Parties to the conflict -- first of all for the exercise of political, administrative or other functions arising either out of its appointment or out of international usage, and secondly for the application of the Convention; but in the latter case it also has a higher mission, automatically entrusted to it, by reason of its duties, by the whole body of Contracting Parties, including the Power in whose territory it carries out its task.
    By making a duty of what formerly was merely the optional exercise of a right, Article 9 reinforces the supervision over the correct application of the Convention, and consequently increases the Convention's effectiveness. It does more than that: it calls in a third Power, a neutral Power and as such immune from the exacerbation of opposed opinions which war provokes, so often leading to a faulty appreciation of the most firmly established moral values, and invokes the aid of this third Power in respect of those fundamental principles.
    If the Protecting Power is not party to the Convention, this mission under the Convention is only obligatory in so far as the Protecting Power explicitly accepts it. If, on the other hand, the Protecting Power is bound by the Convention, the mission is obligatory from the mere fact of the State in question having accepted the role of Protecting Power.
    Article 1 of the Convention reads as follows: "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." This engagement applies just as much to a Protecting Power which is a Party to the Convention as it does to the belligerent Powers, for just as it assisted in the conclusion of the Convention, so it must assist in its application, its responsibility being measured by the extent of the demands made on it. It has no doubt less responsibility than the Parties to the conflict, owing to its inability to act except through the intermediary of its representatives in foreign countries, its means being thus very limited as compared with those which the belligerent Powers have at their disposal for meeting their obligations. But within the limits of its means the Protecting Power's responsibility exists. 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 war, and if necessary
    against their own backslidings, by signing the Geneva Conventions.


    Notes: (1) [(1) p.84] In the Stockholm Draft the provision under
    study appeared as Article 7. 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;

    (2) [(1) p.85] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-B, Article 6/7/7/7, pp. 19-20
    and 57-58;

    (3) [(2) p.85] Ibid., p. 59;

    (4) [(1) p.86] See ' Final Record of the Diplomatic Conference
    of Geneva of 1949, ' Vol. II-B. Article 6/7/7/7, p. 74;

    (5) [(2) p.86] Ibid., p. 28;

    (6) [(3) p.86] 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;

    (7) [(1) p.87] Articles 9, 11, 12, 14, 23, 30, 35, 39, 42, 43,
    45, 49, 52, 55, 59, 60, 61, 71, 72, 74, 75, 76, 83, 96,
    98, 101, 102, 104, 105, 108, 109, 111, 123, 129, 137, 143
    and 145;

    (8) [(1) p.90] See above, pp. 85-86;