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Prisoners of War and the Protecting Power

Published online by Cambridge University Press:  28 March 2017

Howard S. Levie
Howard S. Levie*
Affiliation:
Headquarters, U. S. European Command
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Extract

One of the more significant, but inadequately recognized, developments in the field of the law of war which has occurred during the past half-century is that with respect to the institution of the Protecting Power. Surprisingly little has been written, especially in English, either on the general subject of the Protecting Power or on the specific subject of the Protecting Power and its relationship to the prisoner-of-war problem. This article will endeavor, to a necessarily limited extent, to fill that void, with the emphasis being placed on the gradual, but steady, expansion of the authority, responsibility, and functions of the Protecting Power in safeguarding the welfare of prisoners of war.

Type
Research Article
Information
American Journal of International Law , Volume 55 , Issue 2 , April 1961 , pp. 374 - 397
Copyright
Copyright © American Society of International Law 1961

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References

1 A fairly complete contemporary bibliography of published items would consist of the following: Franklin, Protection of Foreign Interests (1946); Janner, La Puissance Protectrice en Droit International (1948; originally published in German); Siordet, The Geneva Conventions of 1949: The Question of Scrutiny (1953; originally published in French); and De la Pradelle, “Le Contrôle de l’Application des Conventions Humanitaires en cas de Conflit armé, “ in 2 Annuaire Français de Droit International 343 (1956). The subject is, of course, dealt with, but in a more limited fashion, in the various general treatises and articles on the 1949 Geneva Conventions such as De la Pradelle, La Conférence Diplomatique et les Nouvelles Conventions de Genève du 12 août 1949 (1951); Yingling, and Ginnane, , “The Geneva Conventions of 1949,” in 46 A.J.I.L. 393 (1952)Google Scholar ; Kunz, , “The Geneva Conventions of August 12, 1949,” in Law and Polities in the World Community 279 (Lipsky, 1953)Google Scholar ; and Pictet, Commentary on the Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter referred to as Commentary) (1960). Modern texts on international law do little more than paraphrase the provisions of the Geneva Conventions. See, for example, 2 Oppenheim (Lauterpacht), International Law 374-376 and 386 (7th ed., 1952), and Stone, Legal Controls of International Conflict 655, 658, 661, and 666 (1954). Many slightly older texts do not even include the term “Protecting Power” in their indices. See, for example, 2 Oppenheim (McNair), International Law (4th ed., 1926), and Wheaton (Phillipson), International Law (5th ed., 1916). It is to be hoped that this paucity of material does not indicate a continuation of the neglect of the law of war condemned by Kunz a decade ago. Kunz, , “The Chaotic Status of the Laws of War and the Urgent Necessity for Their Revision,” in 45 A.J.I.L. 37 (1951)Google Scholar.

2 A state is frequently called upon to represent certain specified interests of another state in the territory of a third, even though normal, peaceful relations exist between the two latter. Thus, in 1955 the United States was, in varying degrees, representing some 25 states in some 80 other states (United States Foreign Service Manual, Vol. 2, Consular Affairs, pars. 923.31-923.32, July 13, 1955). This peacetime practice unquestionably played an important part in the historical development of the present-day wartime concept of the Protecting Power. The Protecting Power, which is the subject of this article, must not be confused with the protecting state exercising powers over a protectorate.

3 Isolated instances of this practice had occurred earlier. Thus, for example, we find that in the thirteenth century the Venetian Resident in Constantinople was charged with the protection of Armenians and Jews. The appearance of the Protecting Power has been attributed to a combination of three older institutions of international law: extraterritoriality; the employment of foreigners as diplomatic and consular agents; and the use of personal good offices. Franklin, op. cit. 7. It is doubtful that the concept of the Protecting Power as it first appeared in the Turkish Capitulations had any more direct progenitor.

4 Franklin, op. cit. 29 and 39; Eroghi, La Eeprésentation Internationale en vue de Protéger les Intérêts des Belligérants 10-12 (unpublished thesis (1949) graciously furnished to the writer by the Dean of the Faculty of Law of the Université de Neuchâtel) ; detailed information concerning the designation of Protecting Powers in most of the conflicts mentioned herein may be found in this excellent study at pp. 10-29.

5 Franklin, op. cit. 29.

6 Flory, Prisoners of War 107-108 (1942).

7 Franklin, op. cit. 68.

8 Eroghi, op. cit. 23-24; Franklin, op. cit. 78-79. The latter states that on one occasion when an American Vice Consul was inspecting a prisoner-of-war camp he was per mitted to sample the meal which was then being given to the Japanese prisoners of war. In view of all these precedents, it is particularly difficult to comprehend why the 1899 and the 1907 Hague Conferences, both of which were sponsored by the Tsar of Russia, while codifying many customary rules concerning the treatment of prisoners of war, continued the silence of previous international conventions with respect to the institution of the Protecting Power.

9 Siordet, op. cit. 7. World War I saw more men taken prisoner than in any previous conflict; and it likewise saw them held in captivity for a longer period of time. Both of these factors had the effect of focusing attention on prisoners of war. It was undoubtedly this situation which led to the more general public acceptance of the idea of a wider use of the Protecting Power in the interests of prisoners of war. Pictet, Commentary 93-94.

10 Strangely enough, Germany, which had frequently acted as a Protecting Power, and the United States, which had not only frequently acted as a Protecting Power, but was probably the protagonist of the extension of the functions of the Protecting Power with respect to prisoners of war during the period prior to its own entry into World War I, were the two most important belligerents to resist the activities of Protecting Powers. At the beginning of the war Germany instituted rigid restrictions on visits by neutrals to its prisoner-of-war camps. By 1916 these restrictions had, due largely to the efforts of the United States, for the most part disappeared. Yet when the United States be came a belligerent in 1917, the then Secretary of War took the position that Germany had no right to designate the Swiss to inspect American prisoner-of-war camps unless under treaty law. His position was apparently overruled by President Wilson and members of the Swiss Foreign Service were permitted to make such inspections. Flory, op. cit. 108-109.

11 Eroglu, op. cit. 27-28.

12 For example, Art. VIII of the Final Act of the Conference of Copenhagen of Nov. 2, 1917 (photostatic copy on file in The Army Library, Washington, D.C.), to which Austria-Hungary, Germany, Rumania, and Russia were the belligerent parties, dealt with “Arrangements concerning the Admission of the Delegates of the Protecting Power . . . on the Basis of Reciprocity”; Art. XI of the Agreement between the British and Turkish Governments respecting Prisoners of War and Civilians, executed at Bern on Dec. 28, 1917 (111 Brit, and For. State Papers 557-568), dealt with the subject of visits to prisoner-of-war camps by “representatives of the Protecting Powers”; and the Agreement between the United States of America and Germany Concerning Prisoners of War, Sanitary Personnel, and Civilians, executed at Bern on Nov. 11, 1918 (13 A.J.I.L. Supp. 1 (1919); Foreign Relations of the United States, 1918, Supp. 2, p. 103), contains references to the Protecting Power in no less than 25 separate paragraphs.

13 Rasmussen, Code des Prisonniers de Guerre 56 (1931).

14 Siordet, op. cit. 12. Twenty years and one World War later, we again find them urging that the Protecting Power be given the benefit of “well-defined and precise provisions.” Final Record of the Diplomatic Conference of Geneva of 1949 (hereinafter Teferred to as Final Record), Yol. II B, p. 19.

15 The 1929 Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter referred to as the 1929 Convention), 47 Stat. 2021; Treaty Series, No. 846; 27 A.J.I.L. Supp. 59 (1933). It is interesting to note that the companion convention drafted at the same Diplomatic Conference, The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field (better known as the 1929 Geneva Red Cross Convention), 47 Stat. 2074; Treaty Series, No. 847; 27 A.J.I.L. Supp. 43 (1933), a direct descendant of the 1864 and 1906 Geneva Red Cross Conventions, continued to contain no reference to Protecting Powers, a situation which was only remedied 20 years later, after World War II.

16 Art. 86 of the 1929 Convention reads as follows:

“The High Contracting Parties recognize that the regular application of the present Convention will find a guaranty in the possibility of collaboration of the protecting Powers charged with safeguarding the interests of belligerents; in this respect, the protecting Powers may, besides their diplomatic personnel, appoint delegates from among their own nationals or from among the nationals of other neutral Powers. These delegates must be subject to the approval of the belligerent near which they exercise their mission.

“ Representatives of the protecting Power or its accepted delegates shall be permitted to go any place, without exception, where prisoners of war are interned. They shall have access to all places occupied by prisoners and may interview them, as a general rule without witnesses, personally or through interpreters.

“Belligerents shall so far as possible facilitate the task of representatives or accepted delegates of the protecting Power. The military authorities shall be informed of their visit.

“Belligerents may come to an agreement to allow persons of the same nationality as the prisoners to be permitted to take part in inspection trips.”

In addition, the Protecting Powers were specifically given such functions as: receiving complaints from prisoners of war (Art. 42) ; conferring with the representatives (“agents”) of prisoners of war (Arts. 43 and 44) ; and assuring that prisoners of war who were subjected to judicial prosecutions were adequately protected (Arts. 60, 62, 65, and 66). Evidence that the drafters of the convention were attempting merely to formalize and perpetuate an existing status, and not to create a new one, is found in the use in relation to the exercise of its functions by the Protecting Power of such terms as “mediation” (Art. 31) and “good offices” (Art. 87).

17 Ch. 2 of the Annex to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, 36 Stat. 2277; Treaty Series, No. 539; 2 A.J.I.L. Supp. 90 (1909).

18 The U.S.S.R. took the position that, as it was a party to the Fourth Hague Convention of 1907, the Annex to which, it asserted, covered “all the main questions of the regime of captivity” (but not, as has previously been pointed out in note 8 above, the question of the designation or functions of the Protecting Powers), there was no need for it to consider an Italian proposal to apply reciprocally the provisions of the 1929 Convention (Report of the International Committee of the Red Cross on its Activities during the Second World War (hereinafter referred to as ICRC Report), Vol. I, p. 412). While Japan stated its intention to “apply this Convention mutatis mutandis, to all prisoners of war” (ibid. 443), the Protecting Powers were never permitted to function in a manner even remotely resembling their manner of functioning in the territories of most of the other belligerents. As a result of the foregoing, and of the disappearance of many Powers of Origin during the course of hostilities, the ICRC estimates that during World War II approximately 70% of all prisoners of war were deprived of the services of a Protecting Power. De la Pradelle, op. cit. 226. Thus, Germany denied the status of states to Poland, Yugoslavia, Prance and Belgium (after the 1940 armistices), Free France, and Italy (after Mussolini’s overthrow in 1943), and refused to permit the intervention of Protecting Powers on behalf of their captured personnel. Pictet, “La Croix-Bouge et les Conventions de Genève,” in 76 Hague Academy Recueil des Cours 5, 87 (1950, I).

19 The 1949 Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter referred to as the 1949 Convention), 6 U. S. Treaties 3316; 75 U.N. Treaty Series 135 (I: 972); 47 A.J.I.L. Supp. 119 (1953). There were signed, on the same day, three other conventions in which, for the first time in other than a prisoner-of-war convention, references were made to Protecting Powers: Art. 8 and others of the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (the successor to the 1929 Bed Cross Convention mentioned in note 15 above), 6 U. S. Treaties 3114; 75 U.N. Treaty Series 31 (I: 970); Art. 8 and others of the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 6 U. S. Treaties 3217; 75 U.N. Treaty Series 85 (I: 971); and Art. 9 and others of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 6 U. S. Treaties 3516; 75 U.N. Treaty Series 287 (I: 973); 50 A.J.I.L. Supp. 724 (1956). This latter convention will undoubtedly prove of major importance in extending the functions of the Protecting Power in any future international conflict.

20 References to the Protecting Power are contained in 36 of its 132 substantive articles (4, 8, 10, 11, 12, 23, 56, 58, 60, 62, 63, 65, 66, 68, 69, 71, 72, 73, 75, 77, 78, 79, 81, 96, 98, 100, 101, 104, 105, 107, 108, 120, 121, 122, 126, and 128) as well as in two of its Annexes., The basic charter for the Protecting Power is contained in Art. 8, which reads :

“The present Convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict. For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral Powers. The said delegates shall be subject to the approval of the Power with which they are to carry out their duties.

“The Parties to the conflict shall facilitate to the greatest extent possible the task of the representatives or delegates of the Protecting Powers.

“The representatives or delegates of the Protecting Powers shall not in any case exceed their mission under the present Convention. They shall, in particular, take account of the imperative necessities of security of the State wherein they carry out their duties.”

21 Le Comité International de la Croix-Bouge et le Conflit de Corée : Recueil de Docu ments, Vol. I, p. 16 (1952).

22 The U.N. Command permitted the ICBC to perform its usual functions with respect to the Communist prisoners of war held by the UNC. Pictet, Commentary 546. As we shall see (p. 395 below), many of these functions parallel, or may be substituted for, those of a Protecting Power. Unfortunately, all efforts of the ICBC to act north of the battle line were repulsed by the Communists. Treatment of British Prisoners of War in Korea 33-34 (British Ministry of Defence, 1955).

23 Up to the end of 1959 there had been 77 ratifications of, and accessions to, these conventions. International Committee of the Red Cross, Annual Report, 1959, at p. 45 (1959). These include all of the more important Powers except Canada and the Republic of China. The use of the institution of the Protecting Power has since been resorted to in the Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague on May 14, 1954 (249 U.N. Treaty Series 215 (I: 3511)), where it is adopted as a means of overseeing the protection of inanimate objects—which is, actually, merely a variation of the protection furnished historically by the Protecting Power, a very large part of its energies having once been directed towards the protection of the embassy buildings and diplomatic archives of the Protected Power.

24 As was aptly stated by one author : “What happened was that an existing usage was taken, and transformed into a regulation. It was the organ which created the function.” Siordet, op. cit. 3.

25 It must at all times be borne in mind that the Protecting Power is not a general agent of the Power of Origin. In his book, The Present Law of War and Neutrality (1954), Castren defines the over-all relationship between these two Powers as follows (at p. 92) :

“The protecting Power does not act in its own name but rather as a kind of caretaker or intermediary. Nevertheless, it acts independently in so far as the State whose interests it protects cannot demand, but only request, it to perform certain services, and the protecting Power itself decides the way in which it discharges its mission. Nor may a belligerent give instructions to those organs of the protecting Power which carry out this mission. Instead, requests to the protecting Power have to be made through diplomatic channels. The protecting Power may refuse to act when compliance with a request would be contrary to its own interests or infringe the lawful right of the enemy State.”

26 Siordet states that the designation of a Protecting Power is no longer optional but is now “quasi obligatoire” (“De l’Application et du Contrôle des Conventions de Genève de 1949,” in 1956 Revue Internationale de la Croix-Bouge 464, 468); that it is now put in the “imperative form” (The Geneva Conventions of 1949: The Question of Scrutiny 36) ; and that in performing its mission the Protecting Power is no longer the special representative of one of the parties, but is “the representative of all the Contracting Parties to the Convention” (ibid.).

27 This is the step which the United States apparently failed to take when it was requested to perform the functions of the Protecting Power for Great Britain during the Boer War. See page 376 above.

28 The 1949 Convention contains no provisions with respect to the qualifications of a Protecting Power, the method of designation, etc., leaving these problems for settlement under general international law. Heckenroth, Les Puissances Protectrices et les Conventions de Genève 62 and 224 (unpublished thesis, Université d’Aix-Marseille, 1951). This solution will work until one belligerent arbitrarily elects to deny its consent to every neutral nominated by its enemy. In the light of the adamant refusal of the U.S.S.R, to permit any type of inspection to take place on its territory during peacetime, it seems unlikely that such activity would be permitted in time of war, even though the U.S.S.R. participated actively in the drafting of the 1949 Geneva Conventions and has ratified them, as have all of its satellites, without any reservations as to Art. 8.

29 Franklin, op. cit. 164-165. A similar conclusion is reached in Pictet, Commentary 95-96, wherein this statement appears:

“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. This gave them additional authority, and incidentally altered their role; for once a 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.”

In 1945 Switzerland alone represented 34 belligerents, and in many cases it represented opposing belligerents in the territory of each other. Eroglu, op. cit. 144-148.

30 For some of these possible situations see Siordet, op. cit. 49-53 ; and Heekenroth, op. cit. 229-236.

31 The French Delegation strongly urged that a provision be included in the 1949 Convention setting up an international body to perform the functions of Protecting Powers in the absence of the latter (Final Record, Vol. II B, p. 27; ibid., Vol. Ill, pp. 30-31). The substance of this proposal was included in Resolution 2 adopted by the Diplomatic Conference (Ibid., Vol. I, p. 361), but, as far as the writer has been able to ascertain, no steps have been taken, or are contemplated, to implement the resolution. The U.S.S.R. opposed both the original French proposal and the adoption of the resolution, stating as to the latter that it “secs no need to consider this question or to create such a body, since the problem of the Protecting Powers has been satisfactorily solved by the Conventions established in the present Conference.” Declaration made by the Delegation of the U.S.S.R. at the time of the signing of the conventions. Ibid., Vol. I, p. 201.

32 Pictet, Commentary 117-118. All of the Communist countries (and Portugal) made reservations to Art. 10 to the effect that they would not recognize as legal “requests by the Detaining Power to a neutral State or to a humanitarian organization, to undertake the functions performed by a Protecting Power, unless the consent of the Government of the country of which the prisoners of war are nationals is obtained.” While there is a not unnatural tendency to view with suspicion this position taken almost uniquely by the U.S.S.R. and its satellites (see, for example, Brockhaus, , “Sowjetunion und Genfer Kriegsgefangenen-Konvention von 1949,” 2 Ost-Europa Recht 286, 291 (1956)Google Scholar), it appears to have a valid basis. If there is an existing Power of Origin, not only is its consent to the designation of a Protecting Power to act on its behalf essential, but it has the right to make the selection itself in the first place! And the statements made at the Diplomatic Conference by Soviet representatives Morosov (Final Record, Vol. II B, pp. 29 and 351) and Sokirkin (ibid., p. 347) make it clear that they merely desired to limit specifically the right of the Detaining Power to select a substitute for the Protecting Power to those cases where there is no existing Power of Origin—a limitation as to which there should have been no dispute. It is to be hoped that by overruling the Soviet thesis the Diplomatic Conference did not establish the proposition that a Detaining Power may, on its own, select and designate a substitute for a Protecting Power even though there is a Power of Origin in being.

33 Neither the 1929 Convention nor the working (Stockholm) draft used at the Diplomatic Conference includes the term “consular” in specifying the authorized representatives of the Protecting Power. The authorization for the Protecting Power to use this category of personnel as representatives was proposed by Australia and was unanimously approved. Final Record, Vol. II B, p. 58.

34 Janner, op. cit. 52.

35 Siordet, op. cit. 27. A provision of the working (Stockholm) draft used at the Diplomatic Conference would have required the Detaining Power to give “serious grounds” for any refusal to approve the nomination of a non-career individual by the Protecting Power. Final Record, Vol. I, p. 73. This proposal was equally lacking in logic, since a state need give no reasons for refusing to agree to the assignment to a post in its territory of a member of the diplomatic or consular service of the Protecting Power or for declaring such an individual persona non grata. The provision was deleted at Geneva. Ibid., Vol. II B, pp. 58 and 110.

36 De la Pradelle, , “Le Contrôle de l’Application des Conventions Humanitaires en cas de Conflit armé,” in 2 Annuaire Français de Droit International 343, 344 (1956)CrossRefGoogle Scholar.

37 Letter of Instructions of Secretary of State William Jennings Bryan, dated Aug. 17, 1914 (9 A.J.I.L. Supp. 118 (1915)). See also, Franklin, op. cit. 114; United States Foreign Service Manual, Vol. 2, Consular Affairs, pars. 924.1 and 931.

38 “It is not the function of the Protecting Power to command or to overrule; it is its function to observe, to comment, to make representations, and to send reports to the outside world. If we are faced with an unscrupulous belligerent, the presence of the Protecting Power and the ability of the Protecting Power to examine what is going on and to observe is the only preventive measure which we have.” Statement of Quentin-Baxter, representative of New Zealand, at the 1949 Diplomatic Conference, Final Record, Vol. II B, p. 344.

39 Thus, Heckenroth, op. cit. 135, and Janner, op. cit. 52, have each listed seven separate categories of functions of the Protecting Power, but the lists coincide with respect to only four functions! Still a third functional listing appears in Pictet, Commentary 98-99.

40 Yingling and Ginnane, loc. cit. 397. In the British Army Manual of Military Law (Part III, The Law of War on Land, 1958) 92, the Protecting Power is termed “the principal organ, apart from the Contracting Parties themselves, for ensuring the observance of the Convention.” Part III of the Manual was largely the work of the late Sir Hersch Lauterpacht.

41 Final Record, Vol. II B, p. 110.

42 Ibid.; Siordet, op. cit. 24-25.

43 The right of visitation granted by Art. 126 is reiterated in Arts. 56 (labor detachments), 98 (prisoners undergoing disciplinary punishment), and 108 (prisoners undergoing judicial punishment).

44 Pictet, Commentary 571.

45 See note 19 above.

46 A similar restriction is contained in Art. 126 of the 1949 Convention with respect to visits to places where prisoners of war may be. This is the only area in which the 1949 Convention specifically permits the activities of the Protecting Power to be restricted by the Detaining Power. While it is, of course, a very important one, it is not believed that a Detaining Power could really justify the imposition of such a restriction except in very rare cases, such as prohibiting visits to extremely forward collecting points during the actual course of an attack.

47 The proponents of the distinction between the two pairs of conventions argued that it was “obvious and reasonable that the activities of a Protecting Power in sea warfare and on the field of battle must be restricted,” but that as to the Prisoner of War and Civilian Conventions “the vital force which animates those rules and gives them effect is the presence of the Protecting Power.” Final Record, Vol. II B, p. 344. The pessimism which may be apparent in the text is occasioned by the fact that the U.S.S.R. took the position that, even without such a restrictive limitation in the convention, it would exist in fact. Ibid. 345.

48 Pictet, Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick of Armed Forces in the Field 101 (1952). Even there it is admitted that “this is precisely what it [the Protecting Power] would, in such a case, be debarred from doing. It will only be possible to show after the event whether or not the restriction was justified.” In Pictet, Commentary, published 8 years later, a much more realistic approach is taken (at p. 611) :

“If they are to justify the prohibition of visits, military necessities must be imperative. Whether they are or not is a matter for the Detaining Power alone to decide and the right of supervision of the Protecting Powers is restricted by this exercise of sovereignty. Such a decision must not be lightly taken, however, and any prohibition of visits must be an exceptional measure.”

49 In Pictet, Commentary, loc. cit., the following remedial procedure is suggested :

“The Protecting Powers and the International Committee will have the right to bring the temporary nature of the prohibition to the notice of the Detaining Power and, after a certain length of time, to request it to raise all restrictions. Moreover, the Protecting Power will be able to check afterwards whether the prohibition of visits has been used by the Detaining Power to violate the Convention. In any case, it is not in the interests of the Detaining Power to misuse this reservation, because it would very soon be suspected of deliberately violating the Convention by evading supervision by qualified witnesses.”

50 As stated in the ICRC Report, Vol. I, p. 39 :

“Despite partial overlapping, the functions of the Protecting Power are fundamentally dissimilar in kind and extent [from those of the ICRC]. The Protecting Power is the mandatory of one or both belligerents, with competency to protect the rights and interests of the States from which it derives authority. The Committee is concerned exclusively with humanitarian tasks; its functions are not limited to those which are guaranteed by law, but embrace such enterprises in the interests of humanity as appear essential, or which are justified through a request made by a belligerent.”

51 Ibid.

52 In Pietet, Commentary 119, the following statement appears :

“The Convention in this case [paragraph 3 of Article 10] no longer uses the words ‘undertake the functions performed by a Protecting Power,’ hut speaks only of ‘humanitarian functions.’ The distinction is logical. There is no longer any question of a real substitute, and a humanitarian organization cannot be expected to fulfil all the functions incumbent on a Protecting Power by virtue of the Conventions.” See also Final Record, “Vol. II B, pp. 61 and 63.

53 See page 390 above.

54 ICRC Report, Vol. I, pp. 342-343. At that time a prisoners’ representative was known as a “man of confidence.” In the 1929 Convention they were called “agents.”

55 See, for example, Art. 78, wherein specific provision is now contained permitting individual complaints to be transmitted to the Protecting Power either directly, as had been provided in Art. 42 of the 1929 Convention, or through the medium of the prisoners’ representative. Although Art. 42 of the 1929 Convention, the predecessor of Art. 78 of the 1949 Convention, made no mention of the ICRC as an authorized recipient of complaints from prisoners of war, the ICRC took the position that “it is, according to the spirit of the [1929] Convention, undoubtedly meant to be placed, in this respect, on the same footing as the Protecting Powers.” ICRC Report, Vol. I, p. 341. This conclusion is subject to dispute and, in view of the fact that Art. 78 of the 1949 Convention again omits all reference to the ICRC, it would, in interpreting that article, now be even more difficult to accept the ICRC position. Certainly, if such had been the intention of the drafters, they could easily have attained their objective by merely including the ICRC in the article, along with the Protecting Power, as they did in a number of other articles. Their failure to do so in the light of the announced ICRC position strongly militates against the ICRC interpretation.

56 Castrén, op. cit. 95; Pictet, Le Droit International et l’Activité du Comité Inter national de la Croix-Bouge en temps de Guerre 25 (1943). It is more probable that, as in World War II, it will be the Detaining Power which will object where activities of the ICRC appear to duplicate those being performed by the Protecting Power. That the ICRC does not consider the Protecting Power to be a rival, but rather another means of making the life of a prisoner of war a little less miserable, is apparent from the com munication sent by its President early in the Korean conflict in which he said: “The International Committee views, in the activities of the ‘Protecting Powers,’ a forceful instrument for insuring full implementation of the Geneva Conventions and an always desirable corollary to the activities which the Committee itself undertakes.” Le Comité International de la Croix-Eouge et le Conflit de Corée: Recueil de Documents, Vol. I, p. 32.

57 Heckenroth, op. cit. 229.

58 Ibid. 222.

59 In Pictet, Wounded and Sick Commentary 101-102, the following statement appears:

“As it stands, Article 8 is not perfect, far from it. But we have to consider the huge advance which it represents in international humanitarian law. We have to realize that, to achieve this much, the diplomats assembled in Geneva had to cope with 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 opposed conceptions of the role of the Protecting Power, viewed by some as their agent (of whom one demands the maximum), by others as the agent of the enemy (to whom one accords the minimum).”