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To ensure the protection of the general population in times of conflict, humanitarian law establishes a system of protecting powers, meant to safeguard the interests of the persons protected by the Geneva Conventions and their Protocols (GCI–III Arts. 8–11; GCIV Arts. 9–12; API Art. 5).
Function and Mandate of the Protecting Powers
This system was set up to enable the adverse parties to a conflict to maintain a dialogue concerning the protection of their populations.
The Conventions provide that, from the beginning of a conflict, each party has the obligation to appoint a protecting power to ensure the implementation of the Geneva Conventions and their Additional Protocols. The delegates of the appointed protecting powers are subject to the approval of the adverse party with which they are to carry out their duties.
The protecting powers’ mandate is to monitor and safeguard the interests of the parties to the conflict and their nationals. To this end, they enjoy certain specific rights and duties (GCIV Arts. 30, 143):
- the right to visit persons protected by the Geneva Conventions and their Additional Protocols;
- the right to evaluate their living conditions in cases of detention or in occupied territories;
- the right to supervise the distribution of relief supplies;
- the duty to ensure that relief operations are of a civilian and impartial nature and to prevent this relief from being diverted for military purposes;
- the right to supervise the concrete implementation of protective measures for protected persons, especially in cases of detention, internment, and occupied territory;
- the right to ensure that judicial guarantees are respected, in case of a trial, especially in cases possibly involving the death penalty;
- protected persons have the right to refer their cases to protecting powers.
Who May Take on the Responsibilities of the Protecting Power?
In theory, protecting powers are representatives of States that are not involved in the conflict at hand and that accept to verify that humanitarian law is being respected on the territory of a given party to the conflict. In practice, since the Geneva Conventions were adopted in 1949, no State has ever accepted this role for any of the conflicts that have taken place. Through this refusal, States show their lack of concrete commitment to actually defending the implementation of humanitarian law. The Geneva Conventions had foreseen this diplomatic weakness and set up several provisions for substitution mechanisms. The ICRC is formally under the obligation to offer its good offices so as to facilitate the designation of such protecting powers.
Substitute Protecting Powers: The ICRC and Humanitarian Organizations
The ICRC mediation role is firmly established in the Conventions. It must ask each party to a conflict to provide it with a list of at least five States that it would consider acceptable as a protecting power in relation to an adverse party (GCI–III Art. 8, GCIV Art. 9, and API Art. 5).
If, despite this intervention, the parties to the conflict still do not succeed in designating a protecting power, the Conventions establish that the ICRC will act as substitute protecting power and take on its functions. Other impartial humanitarian organizations also have the possibility of taking on the role of protecting power if the relevant parties accept their offer of services.
In such cases, the substitutes are no longer States but organizations, presenting all guarantees of impartiality and effectiveness. After they have been accepted by the parties to the conflict, these organizations can take on the functions of the protecting powers: monitoring the application and defense of the rights and obligations set forth in the Geneva Conventions for protected persons (GCI–III Art. 11, GCIV Art. 12, and API Art. 5).
It is important to note that this system of substitution is subject to the reciprocal consent of the parties to the conflict, and therefore can fail. In such cases, the Geneva Conventions impose the presence and activities of the ICRC (GCIV Arts. 30, 143).
If the parties to a conflict fail to designate a protecting power or substitute of their own accord, they are nonetheless under the obligation to:
- request that an organization such as the ICRC take on the humanitarian functions meant to be performed by protecting powers under the Geneva Conventions and
- accept offers of services of such an organization.
In practice, this role—which is central to the proper implementation of the Geneva Conventions—is fulfilled almost exclusively by the ICRC.
The provisions concerning a protecting power or substitute create a space for humanitarian protection that can be filled by international and nongovernmental organizations present in situations of conflict (GCI–III Art. 10, GCIV Art. 11, and API Art. 5.4).
For Additional Information: Aldrich, George H., and Christine M. Chinkin. “The Hague Peace Conferences: The Laws of War on Land.” American Journal of International Law 94 (2000): 42–63.
Wolfrum, Rudiger. “Enforcement of International Humanitarian Law.” In The Handbook of Humanitarian Law in Armed Conflicts , edited by Dieter Fleck, 543–44. Oxford: Oxford University Press, 1995.