ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 10. Chapter I : General provisions
    ARTICLE 10. -- SUBSTITUTES FOR PROTECTING POWERS


    [p.71] Scrutiny having been made compulsory, it was necessary to ensure that it could take place in all circumstances. The purpose of the present Article is therefore to provide for either the substitution for the Protecting Power of an organization chosen by the two Parties, or its replacement if, for any reason, the said Protecting Power can no longer continue its activities (1).

    PARAGRAPH 1. -- SPECIAL INTERNATIONAL ORGANIZATION

    By the mere fact of choosing a Protecting Power, in accordance with international usage, a belligerent State appoints that Power to carry out the duties laid down in Article 8 and the activities arising thereunder.
    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 a Protecting Power in the normal way, nor does it affect the normal duties of a Protecting Power, such as safeguarding the diplomatic, commercial and financial interests of the Power of origin in enemy territory, or the protection of individuals and their property, over and above the protection afforded by the Conventions. All that remains a private matter between the Parties concerned.
    Accordingly a belligerent Power may very well appoint simultaneously:

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

    [p.72] (b) by agreement with the enemy, an organization as described in
    paragraph 1, to perform the duties for which the Convention provides.

    The organization must be approved by both Parties and must offer guarantee of ' impartiality ' and ' efficacy '.
    What is meant by "impartiality" has already been shown (2), 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 relation to the Parties to the conflict, the authority it enjoys in the 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. For in the case considered in paragraph 1, the special organization can be appointed only by agreement; failing 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 main possibilities:

    (a) In peace-time the High Contracting Parties may conclude an ad hoc agreement by which the rôle 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. 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 be ipso facto freed of responsibility for performing these functions.
    Such was the original idea voiced at the Conference of Government Experts in 1947. The agreement regarding the appointment of a special organization need not, however, be necessarily concluded between ' all ' the Powers party to the Convention. It may be the act of some of them only, in which case the special organization will [p.73] not be invested with the functions arising out of Article 8 except in regard to relations between adversaries which are parties to the agreement. In all other cases the Protecting Powers will continue to be responsible for these functions.

    (b) When hostilities first break out 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, making over to the special organization the functions provided for in Article 8 , eo ipso dispenses the Protecting Powers from the exercise of those functions, and limits them to the discharge of the other duties which international usage makes theirs.

    (c) In the course of the conflict the opposing Parties may agree -- in order, for example, to ease the burden on the Protecting Powers -- to entrust to a special organization that part of the Protecting Powers'functions arising from the provisions of the Convention.
    It may be noted that in any 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 performed by the Protecting Power.
    The Diplomatic Conference refrained from giving a more precise indication, even by analogy, of the organization to which the paragraph relates. It may be one specially created for the sole purposes of Article 10, or may be already in existence. In the latter case, it may be specialized or general, official or private, international or national. The essential point is that it should be impartial and effective.

    PARAGRAPH 2. -- ABSENCE OF PROTECTING POWER

    We now come to the actual appointment of a substitute for the Protecting Power.
    This paragraph does not become applicable automatically if the Protecting Power first chosen ceases to exist or gives up that office.
    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 [p.74] first 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, and so on, each being on precisely the same footing as the first Protecting Power. The same thing is true in the event of the disappearance of a special organization appointed pursuant to paragraph 1 and each Party to the conflict remains entitled to appoint a Protecting Power in the normal way, automatically responsible under Article 8 for the duties provided for in the Conventions. The present Article refers to the duties not of ' the ' Protecting Power appointed, but of ' any ' Protecting Power. It is clear from the foregoing that paragraph 2 cannot, and must not, be applied before all other possibilities have been exhausted for ensuring
    scrutiny by means of either a Protecting Power or a special organization.
    In practice, this contingency is hardly likely to arise unless the Power of origin persistently failed or refused to appoint a Protecting Power, or ceased to exist.
    The Detaining Power is not completely free in the choice of the substitute: it has to "request a neutral State, or such an organization, to undertake..." the duties in question. It cannot therefore appoint an allied Power. The State must be ' neutral. ' It was hardly possible for the Convention to go into further detail. However, a State which, while keeping out of the conflict, had previously broken off diplomatic relations with the enemies of the Detaining Power would obviously be ineligible.
    The text leaves no freedom of choice with regard to the organization whose services may be requested: it can be only the organization mentioned in the previous line as being "provided for in the first paragraph above", that is to say an organization appointed by prior 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 entitled to perform all the duties devolving upon a Protecting Power under the Convention, but no others (3).

    [p.75] PARAGRAPH 3. -- ABSENCE OF A SUBSTITUTE

    This is the final stage, in which no organization has been appointed under paragraph 1 and the Power of origin is unable to appoint a Protecting Power, while the Detaining Power, although wishing to apply paragraph 2, has failed to find a neutral State. There are no longer any possible substitutes. It is then that, as a last resort, the Convention calls upon a humanitarian organization.
    The Convention in this case no longer uses the words "undertake the functions performed by a Protecting Power", but speaks only of "humanitarian functions". The distinction is logical. A humanitarian organization cannot be expected to fulfil all the functions incumbent on a Protecting Power by virtue of the Convention. What it is asked to do is to undertake at least those activities which bring directly and immediately to the persons protected by the Convention the care which their condition demands. Thus, the humanitarian organization referred to in paragraph 3 does not act, as it were, as an agent, 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 that organization; and that is an essential condition for its humanitarian work.
    The Detaining Power ' must ' request the intervention of a humanitarian organization; and should such an organization anticipate it by spontaneously offering its services, the Detaining Power ' must ' accept them.
    The obligation is unconditional. Consequently, a Detaining Power which was justified in declining the offer of services of a humanitarian organization that failed to furnish sufficient assurances would have to ask for the co-operation of another organization. The same would be true if the first organization which it approached, or which offered its services, ceased to function for any reason.
    On the other hand, the obligation to accept the offer of services is qualified by the condition "subject to the provisions of this Article"; and these provisions can only be those of paragraphs 3 and 4. The Detaining Power cannot therefore decline such offers of service unless it has already applied for, and obtained, the co-operation [p.76] of another qualified humanitarian organization, or unless the organization making the offer fails to furnish "sufficient assurances" as required by paragraph 4.
    The Detaining Power is naturally 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, but the Convention imposes on it humanitarian duties which it must perform as impartially as possible. In the absence of a Protecting Power, the substitute which takes its place is appointed by the enemy of the Power of origin, and it might therefore be feared that the Detaining Power might appoint a neutral State or an organization devoted to its own cause. Hence the desire to bring home to the substitute that it has been chosen as an exceptional measure and for want of a better alternative, that it does not thereby become the agent of the Detaining Power, but that it is charged by all the Contracting Parties with loyal cooperation in the application of the Convention in relation to the adversaries of that Power. The reminder should be viewed primarily as a weapon to enable the substitute to insist on the Detaining Power granting the means and independence necessary for the performance of its duties with the impartiality required by the Convention.
    Furthermore, a neutral Power or humanitarian organization which is invited by a belligerent Power to discharge the functions of a Protecting Power should make sure, whenever possible, that the Power of origin has no objection to its appointment. It is of course true, as we have seen above (4), that in general cases a substitute will be appointed only when the Power of origin is not, or is no longer, in a position to express any opinion or to appoint a Protecting Power. If, however, the Detaining Power did not recognize the Government of the Power of origin, the neutral Powers or organizations invited should consult that Government, even if their consultations were only unofficial.
    [p.77] As for the"sufficient assurances" stipulated, reference should be made to what has been said above concerning paragraph 1 (5). The matter is one on which the Detaining Power will in practice be the sole judge and, as such, it alone will bear the responsibility for unsatisfactory application of the Convention due to incapacity or lack of impartiality on the part of the substitute which it has called upon or accepted.

    PARAGRAPH 5. -- PROHIBITION OF DEROGATIONS

    This paragraph, which was originally intended for the Third Convention only, was inserted into all four Conventions by the Diplomatic Conference. Its purpose is to ensure neutral 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 reaching an agreement with a Government of the enemy State which has fallen under its influence, or has actually been set up by it, to establish a system in which a special substitute, at its beck and call, would in fact place the protected persons at its mercy, thus rendering any sort of supervision illusory. No plea by a Detaining Power 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.

    ' Paragraph 6 ' calls for no comment.

    CONCLUSIONS

    It would be idle to deny it, Article 10 is not all it might be. Despite 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. The text may, perhaps, admit of different interpretations, but rather than go [p.78] into them here, it would be preferable to consider the positive side 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 imperative 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 that is impossible, one last opening is provided.
    The one thing that matters, the one thing that counts, is the principles set forth in Article 12 on which all the other provisions of the Convention depend. Such is their significance that even war, which is the ' raison d'être ' of the Convention, cannot prevail against them. There may be many interpretations of Article 10, but only one true one -- namely, the one which is best fitted to give practical effect to the provisions of Article 12 .


    * (1) [(1) p.71] See ' Commentary I, ' pp. 113-117;

    (2) [(1) p.72] See above, p. 68;

    (3) [(1) p.74] In the Korean war (1950-1953), the Parties to
    the conflict, although not bound by the Geneva Conventions
    of 1949, made known their intention of applying the
    principles thereof. No Protecting Power or substitute was
    appointed, however. The system of supervision established
    in 1949 was not tried out, therefore, during that
    conflict;

    (4) [(1) p.76] See above, p. 74;

    (5) [(1) p.77] See above, p. 71;