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Max Planck Encyclopedia of Public International Law [MPEPIL]

Protecting Power

Hans-Joachim Heintze

Content type:
Encyclopedia entries
Product:
Max Planck Encyclopedias of International Law [MPIL]

Module:
Max Planck Encyclopedia of Public International Law [MPEPIL]
Article last updated:
July 2009

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 25 April 2025

Subject(s):
Diplomatic relations — Armed conflict — Geneva Conventions 1949

Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). 

A.  Notion

1  During armed conflicts a protecting power is a neutral State or one which is not party to the conflict, and is designated by a party to the conflict and accepted by the adverse party. Moreover, the protecting power itself will have agreed to carry out the functions of a protecting power. The tasks assigned to a protecting power are listed in the Geneva Conventions I–IV (1949) ([adopted 12 August 1949, entered into force 21 October 1950] UNTS vol 75). Thus, protecting powers act under the Geneva mandate. The idea behind the Geneva mandate is the use of international supervision as a means to improve the implementation of the international humanitarian law (Humanitarian Law, International).

B.  Historical Development of Legal Rules

2  The development of the role of protecting power in an armed conflict occurred during the Franco-Prussian War of 1870–71. For the first time, the consular staff of the enemy were expelled from the host State and restrictions on enemy aliens were imposed (Enemies and Enemy Subjects). For this reason, all of the belligerents were represented by protecting powers in the enemy State. For example, England dealt with the protection of the French in Germany, while the US, Switzerland, and Russia served as protecting powers for the German States. The practice during the Franco-Prussian War became a precedent repeated mutatis mutandis in subsequent wars. In the Sino-Japanese War of 1894–95, both sides nominated the US as protecting power, which implied that the same State acted for each of the belligerents within the territory of the other. In the Greco-Turkish War of 1897, Germany served as the protecting power for Turkey in Greece; and Britain, France, and Russia acted jointly for Greece in Turkey.

3  The nomination of more than one State as a protecting power later almost disappeared; however, the institution of the protecting power quickly became an established rule of customary international law. The only exception to that rule took place at the beginning of the Second Boer War of 1899–1902 when the British entitled the US to represent their interests. This, however, was refused by the Boers because they felt that their consent had not been sought by the belligerents. Later, the Boers permitted the US to perform such activities with respect to British prisoners of war. The institution of the protecting power was born and a humanitarian dimension added. Activities for the benefit of prisoners of war and suffering civilians were exercised to an even greater extent during the Russo-Japanese War of 1904–05 by France and the US, which both served as protecting powers. Nevertheless, during the drafting of the 1907 Hague Conventions (Hague Peace Conferences [1899 and 1907]) it was not possible to include an article on the humanitarian dimension of protecting powers.

4  Against this background, it seems understandable that the designation of protecting powers by belligerents took place on a large scale at the outbreak of World War I. However, they were initially reluctant to meet the requirements of their humanitarian mission. An expression of that restrictive approach is the United States Department of States ‘Instructions to Diplomatic and Consular Offices of the United States of America Entrusted with the Interests of Foreign Governments at War with the Governments to which such Officers are Accredited’ of 17 August 1914 ([1915] 9 AJIL Supp 118), which advises its officials to act in accordance with impartial amity and merely by means of unofficial representation. Visits to prisoner of war camps and camps of civilian internees were rejected: it was argued that they are incompatible with the principle of neutrality (Neutrality, Concept and General Rules). The US—an experienced protecting power at that time—was, apart from Germany, the most important belligerent that resisted the humanitarian functions mentioned above. Germany instituted massive limitations on visits to prisoner of war camps at the beginning of the war. Later, Germany lifted the restrictions. Yet, after the US became a belligerent party in 1917, the US Secretary of War argued that Germany had no right to call upon the Swiss protecting power to inspect American prisoner of war camps. Later, this decision was overruled by President Wilson and Swiss officials were permitted to pursue the inspections (Levie 377–8 fn 10).

5  Finally, there was a need for a legal recognition of the functions of protecting powers. After 1917, the belligerents agreed on some treaties on the basis of reciprocity covering the topic of visits. The experiences of World War I lead to the Geneva Convention relative to the Treatment of Prisoners of War of 27 July 1929 ([‘1929 Convention’] [entered into force 19 June 1931] 118 LNTS 343). The 1929 Convention confirmed that protecting powers had become generally accepted and that their tasks were clearly defined. It was the first agreement giving official recognition to the institution of protecting power and which was ratified by a vast majority of States. Among the tasks enumerated in the 1929 Convention, the humanitarian aspect of the notion ‘protecting power’ was also confirmed.

6  The protecting power has the right to inspect prisoner of war camps, to assist individuals in judicial proceedings, to deliver notes to the belligerents, and to render good offices as a means of conflict settlement in order to fulfil the tasks of the 1929 Convention and to monitor compliance with it. While the 1929 Convention did not create a new institution, it provided protecting powers with a formally recognized and unprecedented status.

7  When World War II broke out, the effectiveness of the 1929 Convention became obvious. The designation of protecting powers and their mandate on behalf of prisoners of war confirmed the humanitarian dimension of this institution. Most belligerents appointed protecting powers and implemented the obligations under the 1929 Convention. Nevertheless major violations took place, especially in Japan and the Soviet Union, neither of which were parties to the 1929 Convention. All in all, World War II made clear that the 1929 Convention suffered from several weaknesses. First, it did not contain a procedure for the appointment of a protecting power, and it also omitted an obligation to assign one after the outbreak of hostilities. Moreover, the relationship between the obligations of the protecting power and its voluntary designation was left open. Equally unresolved remained the legal position of the non-recognized government and the responsibilities of the protecting power in occupied territories. The codification of international humanitarian law after World War II attempted to overcome the shortcomings of the 1929 Convention and to improve the legal basis of the protecting power.

8  After World War II, the differences between peacetime protecting powers and wartime protecting powers decreased. Moreover, the division of the world into a Socialist and a Western camp resulted in an increased politicization of the concept.

C.  Current Legal Situation

1.  Consequences of the Outbreak of Hostilities to the Law of Diplomacy

9  Besides the above mentioned Geneva mandate there are also rules of the law of diplomacy to be applied in armed conflicts (‘Vienna mandate’). After the outbreak of an armed conflict there is an overlap between the law of diplomacy and international humanitarian law. When diplomatic relations have been terminated or missions have been recalled due to the armed conflict, it is up to the concerned States whether or not to appoint a protecting power. However, the selected State is under no obligation to agree although in the absence of reasonable explanations the refusal can be qualified as an unfriendly act. Moreover, the selected State is entitled to make its acceptance subject to conditions, and it can also withdraw its acceptance in case of a change of interests. The necessary implicit or explicit consent of the host State may take the form of an ad hoc declaration or of a formal agreement. Nevertheless such consent is indispensable.

10  The traditional practice of third power protection was questioned by newly independent States during the process of decolonization, which was very often accompanied by an armed conflict (see also Wars of National Liberation). Against this background, the codification of the Vienna Convention on Diplomatic Relations (1961) ([‘VCDR’] [done 18 April 1961, entered into force 24 April 1961] 500 UNTS 95) took place. In Art. 45 VCDR, it is determined that concerning diplomatic relations or missions, the sending State may entrust a third State with the protection of its interests and those of its nationals. Moreover, the third State has to be acceptable to the receiving State. The term ‘acceptable’ implies a passive relation of the host State to the possible protecting power and creates also the impression that formal prior consent is not required. This, however, is wrong: the host State is certainly able to reject an ‘unacceptable’ protecting power and therefore Art. 45 VCDR has not changed the legal situation in comparison with the obligations under customary international law.

11  For that reason, the rule still plays an essential role when it comes to appointing protecting powers. This is further confirmed by Art. 46 VCDR, which allows the temporary protection of a third State and its nationals by the sending State in accordance with the permission of a receiving State. At the same time, the third State may also not be represented in the receiving State. The right of the receiving State to reject or to refuse the acceptance of a protecting power, without giving any reason for that decision, does not mean that foreigners can be left permanently without protection. For example, in 1961 Indonesia demanded Great Britain terminate its representation of the Netherlands. At the same time, Indonesia refused replacement by any other protecting power. From a legal point of view, this was generally considered as a violation of international law, because it meant a denial of protection for Dutch nationals and interests in Indonesia. The permanent rejection of protection violates the minimum standards requirements concerning the treatment of aliens in international humanitarian law.

12  The precise tasks of the protecting power are laid down in the tripartite agreement between the protected State, the protecting power, and the host State. The area and scope of protecting power arrangements vary from State to State and have evolved over time. However, usually it includes rules concerning the jurisdiction of protecting power, the protection and documentation of the property of the protected State, the communications between protecting power and protected State, the financial arrangements for staff and equipment, the services that the protecting power will render on behalf of the nationals of the protected State, and the relinquishment of protecting power agreements. Such arrangements may include the maintenance of the diplomatic and consular offices and archives. Nevertheless, in general the protecting power will not use these premises but its own facilities and personnel. The protecting power also administers consular and diplomatic services, including the contacts with the host government, issues passports, and certifies documents. Further, it protects public and private property from the protected State (Enemy Property). If there are no clear instructions given by the protected State concerning the task of the protecting power, the latter has to act in good faith as a trustee. In that case, the delegating State has to reimburse the expenses of the protecting power, but, the protecting power may also be liable for violations of the interests of the represented State.

13  During the Falkland Islands/Islas Malvinas conflict, Switzerland was nominated by the British government as protecting power in Argentina. Having obtained the consent of Argentina, it exercised this function on behalf of the large British Embassy, two consulate generals and 30,000 British nationals. Argentina mandated Brazil as protecting power in London.

14  The mandate of the protecting power ends with the restoration of diplomatic relations between the two disputing States. In the Falkland Islands crisis, it took almost eight years to resume diplomatic relations. It was not until 1990 that the mandate of Switzerland and Brazil ended. Other mandates end with the demise of the protected State, by cancellation or termination. The protecting power notifies the host State about the termination of its mandate.

15  An example of the problems that the international community faces with regard to protecting powers is Switzerland. For the first time, it acted as a protecting power in the Franco-Prussian War of 1870–71. During World War I it represented the interests of 36 States, in World War II those of 35 States. The period of the Cold War (1947–91) led to a further increase of the number of Swiss mandates. However, despite many conflicts, its role as protecting power has decreased continuously since the late 1980s. Three reasons for this development are mentioned in the literature: first, States involved in hostilities resume official diplomatic relations. Second, conflicts today—as compared with conflicts 50 years ago—tend to be local rather than international (‘intra-State wars’; Armed Conflict, Non-International). For that reason, they rarely affect diplomatic relations. Third, States are less willing to accept the mandate of a protecting power these days. This can be illustrated by the Swiss refusal to act as a protecting power for Germany and Great Britain during the North Atlantic Treaty Organization (NATO) air attacks against Serbia in 1999. It was argued that Switzerland could not guarantee that its own embassy in Belgrade would remain open during the NATO offensive. Under the surface, however, there was another reason for the Swiss refusal: Switzerland had departed from its policy of neutrality by condemning the human rights violations of the Milošević regime in Kosovo (Milošević Trial). Later, during the NATO operation, however, Switzerland returned to its former policy and became protecting power for France. It was also willing to accept the US request but was refused Serbian consent.

2.  According to International Humanitarian Law

16  In addition to the rules of international customary law, the institution of the protecting power was first incorporated into treaty law with Art. 86 Geneva Convention on Prisoners of War (1929). This treaty was amended by the 1949 Geneva Conventions I–IV, as well as by the Geneva Conventions Additional Protocol I (1977) and the Geneva Conventions Additional Protocol II (1977) ([both adopted 8 June 1977, entered into force 7 December 1978] 1125 UNTS 3 and 609).

17  According to common Art. 8/8/8/9 Geneva Conventions, the parties of an armed conflict are obliged to appoint protecting powers. They safeguard the interests of the parties to the conflict. This goal should be reached by supervision, inspection, assistance, and transmission. The scrutiny of protecting powers in practice assumed the character of management of interests and mediation. The regulations on the procedure of appointment and the functions of the protecting power are rather imperfect. However, in comparison to the former regulations, it is an improvement that the mandate of the protecting power was extended to the civilian detainees. Furthermore, the parties are entitled by the common Art. 10/10/10/11 Geneva Conventions to entrust an international organization with the duties of a protecting power as long as impartiality and efficacy is guaranteed. In the case the protecting power fails, no matter for what reason, the Geneva Conventions provide substitution mechanisms. By the entitlement of the detaining power to request a neutral State or organization to undertake the functions of a protecting power, the protection ought to be preserved. If protection cannot be arranged accordingly, the detaining power shall accept a humanitarian organization such as the International Committee of the Red Cross (ICRC) to assume the humanitarian function without the consent of the protected State.

18  In the year following the codification of the 1949 Geneva Conventions, the Korean War (1950–53) started and those provisions were never implemented. Moreover, in other conflicts since World War II, there were only four cases in which protecting powers were appointed; in two of them the mandate was restricted to diplomatic functions (Vienna mandate).

19  Against this background, it was necessary to reassess the 1949 regulations. This was achieved with the Additional Protocol I. Art. 5 (2) Additional Protocol I obliges each party to the conflict to designate without delay a protecting power and to permit the activities of a protecting power which has been accepted by it as such after designation by the adverse party. If a protecting power has not been designated or accepted, the ICRC or any other impartial humanitarian organization can—according to Art. 5 (3) Additional Protocol I—offer its good offices to the parties provided that the parties to the conflict consent to the protecting power. For this purpose the organizations may ask each party to provide them with a list of at least five States which the parties might consider acceptable as a protecting power on its behalf. These lists should be communicated to the ICRC or other organizations within two weeks after the request. Then, the organization should seek the agreement of any proposed State.

20  Should no protecting power be appointed, the parties to the conflict may accept the offer of any humanitarian organization, such as the ICRC, to act as a substitute protecting power. This procedure is, however, subject to the consent of the parties to the conflict. Despite some improvements, Additional Protocol I does not allow an automatic appointment procedure.

21  Art. 5 (5) Additional Protocol I contains a clarification concerning the unresolved question of the relationship between the Geneva and the Vienna mandate. It stipulates that the maintenance of diplomatic relations between the parties to the conflict or the entrusting of the protection of a party’s interests to a third State in accordance with the rules of international diplomatic law is no obstacle to the designation of a protecting power in accordance with international humanitarian law. Thus, the two kinds of protecting power are distinctive and can exist simultaneously. There is no automatic transfer of the Vienna mandate into the Geneva mandate after international humanitarian law becomes applicable between the parties to the conflict. Nevertheless, the tendency of the States to appoint only one State with both mandates seems obvious.

22  Protecting powers also play a role in connection with the protection of cultural property during armed conflicts (Cultural Property, Protection in Armed Conflict). The Convention for the Protection of Cultural Property in the Event of Armed Conflict ([signed 14 May 1954, entered into force 7 August 1956] 249 UNTS 240) provided that cultural property can only be attacked in case of imperative military necessity without defining such exception. Given that this approach never worked, the 1954 Convention was amended by a Second Protocol ([signed 26 March 1999, entered into force 9 March 2004] (1999) 38 ILM 769). It establishes a new system. Cultural property of the greatest importance for humanity can be placed under enhanced protection provided it is adequately protected by domestic law and not used for military purposes or to shield military sites. Enhanced protection is granted according to a ‘List of Cultural Property’. This decision is taken by an Intergovernmental Committee established under the 1999 Protocol. It is essential that the 1999 Protocol applies equally to international and non-international armed conflicts.

23  Art. 2 Annex ‘Regulations for the Execution of the Convention’ to the Convention for the Protection of Cultural Property in the Event of Armed Conflict requires a State Party, once engaged in an international armed conflict, to appoint a representative for cultural property. Art. 3 Regulations allows for any protecting power acting for each of the parties in conflict to appoint accredited delegates from among its diplomatic or consular staff. Art. 4 Regulations requires that a Commissioner-General shall be chosen from the international list of persons by joint agreement of the party to which he or she will be accredited and the protecting power acting on behalf of the opposing party. If there is no protecting power, the Commissioner-General shall exercise the functions of a protecting power.

24  The function of the protecting power does not, in principle, include evaluations whether attacks took place in accordance with the rules of warfare. However, in cases of the use of chemical weapons (Chemical Weapons and Warfare), such investigations can be carried out, because traces of use may be found on the battlefield.

D.  Outlook

25  Protecting powers in international armed conflicts are an important means of implementation of international humanitarian law. Art. 30 Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949 (‘Geneva Convention IV’), for example, gives protected persons the right to file a complaint—with protecting powers as their mouthpiece—about an infringement of the Convention. Recourse to a protecting power can also serve as a mechanism to guarantee the right to humanitarian assistance, because it is up to the protecting power to co-operate with all parties to the armed conflict in the implementation of the international humanitarian law and to monitor compliance. This allows determining the extent of humanitarian needs and supervising that relief reaches the intended destination. The protecting power can act as a mediator between the parties to the conflict, humanitarian organizations, and the civilian population. It can also offer good offices, ensuring safe passage (Safe-Conduct and Safe Passage) and distribute humanitarian aid. Of a further advantage is the direct access to the authorities and the victims under their control. In practice, however, very little use has been made of such opportunities of protecting powers. Therefore, the ICRC has acted in most of the cases as a de facto substitute. The approach of the ICRC may differ in comparison with the protecting power. The latter is obliged to protect the interests of the party to the conflict it represents while the ICRC will focus on the victims of the conflict. One additional problem is the fact that the protecting power needs sufficient qualified personnel in order to fulfil its supervisory functions. Thus, personnel should be trained already in peacetime.

26  Beside such advantages and problems there is still a certain reluctance and mistrust from States towards the principle of protecting powers. An example of this lack of trust is the strict limitation expressed in the Australian Reservation to Art. 5 Additional Protocol I:

It is Australia’s understanding that in relation to Article 5, with regard to the issue whether, and in what measure, Protecting Powers may have to exercise any functions within the combat zone (such as may be implied by provisions in Parts II and IV of the Protocol), the role of the Protecting Power will be of a like character to that specified in the First and Second Conventions and Part II of the Fourth Convention, which apply mainly to the battlefield and its immediate surroundings.

27  Another shortcoming of the existing regulations is the restriction of the protecting power mechanism—according to Additional Protocol I—to international armed conflicts. There is a factual hierarchy of protection; the victims of non-international armed conflicts are given less protection. The ICRC has—in many cases with success—offered to perform the function of protecting power in non-international conflicts, but the parties to an internal conflict have not always accepted such offers.

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