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The updated Commentary on the First Geneva Convention – a new tool for generating respect for international humanitarian law

Published online by Cambridge University Press:  17 October 2016

Lindsey Cameron ,
Bruno Demeyere ,
Jean-Marie Henckaerts ,
Eve La Haye  and
Heike Niebergall-Lackner
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Abstract

Since their publication in 1950s and 1980s, respectively, the Commentaries on the Geneva Conventions of 1949 and their Additional Protocols of 1977 have become a major reference for the application and interpretation of these treaties. The International Committee of the Red Cross (ICRC), together with a team of renowned experts, is currently updating these Commentaries in order to document developments and provide up-to-date interpretations. The work on the first updated Commentary, the Commentary on the First Geneva Convention relating to the protection of the wounded and sick in the armed forces, has already been finalized. This article provides an overview of the methodology and process of the update and summarizes the main evolutions in the interpretation of the treaty norms reflected in the updated Commentary.

Keywords

international humanitarian lawFirst Geneva Conventionupdated CommentaryInternational Committee of the Red CrossState practiceprotection of wounded and sicknon-international armed conflictduty to respect and ensure respectclassification of armed conflictoffer of servicesgenderdisseminationcriminal repression
Type
Challenges in modern wars
Information
International Review of the Red Cross , Volume 97 , Issue 900: The evolution of warfare , December 2015 , pp. 1209 - 1226
Copyright
Copyright © icrc 2016 

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References

1 See Henckaerts, Jean-Marie, “Bringing the Commentaries on the Geneva Conventions and their Additional Protocols into the twenty-first century”, International Review of the Red Cross, Vol. 94, No. 888, 2012, pp. 1551–1555 CrossRefGoogle Scholar.

2 See Statutes of the International Red Cross and Red Crescent Movement, 1986, Arts 5(2)(g) and (4), available at: https://www.icrc.org/eng/resources/documents/misc/statutes-movement-220506.htm.

3 See https://ihl-databases.icrc.org/ihl/full/GCI-commentary. A hard-copy version will be published by Cambridge University Press in the second half of 2016 and the Commentary, which is currently available in English only, will be translated into Arabic, Chinese, French, Russian and Spanish.

4 For a description of the circumstances that led to the founding of the ICRC and the International Red Cross and Red Crescent Movement, starting with the battle of Solferino and culminating in the adoption of the first Geneva Convention in 1864, see Bugnion, Francois, “Birth of an idea: The founding of the International Committee of the Red Cross and of the International Red Cross and Red Crescent Movement”, International Review of the Red Cross, Vol. 94, No. 888, 2012, pp. 1299–1338 CrossRefGoogle Scholar, available at: https://www.icrc.org/eng/resources/documents/article/review-2012/irrc-888-bugnion.htm.

5 In comparison, Additional Protocol II is not universally ratified and its scope of application is more limited, without, however, modifying common Article 3's existing conditions of application. For the current status of the Conventions and Protocols, see: www.icrc.org/eng/resources/documents/misc/party_main_treaties.htm.

6 The external members of the Editorial Committee are Liesbeth Lijnzaad and Marco Sassòli, and the ICRC members are Philip Spoerri and Knut Dörmann. Information on authors/members of the Reading Committee, as well as on the group of Peer Reviewers, can be found in the Acknowledgements to the Commentary, see https://ihl-databases.icrc.org/ihl/full/GCI-commentaryAckAbb.

7 See e.g. Commentary on Article 12 of the First Convention, section E.1.

8 For more details on the methodology, please refer to the General Introduction of the Commentary available online at https://ihl-databases.icrc.org/ihl/full/GCI-commentaryIntroduction.

9 It should be noted that treaties, other than the Conventions themselves, that are referred to in the Commentaries are used on the understanding that they only apply if all the conditions in terms of their geographic, temporal and personal scope of application are fulfilled. In addition, they only apply to States that have ratified or acceded to them, unless they are reflective of customary international law.

10 For examples on State responsibility, see e.g. the Commentary on common Article 1, paras 144, 160 and 190 and on common Article 2, paras 267–270. For an example on the law of treaties, and in particular the law on succession to treaties, see Article 60, section C.4.

11 See ICRC, Commentary on the First Geneva Convention, 2nd ed., Cambridge University Press, 2016, paras 615–623 Google Scholar.

12 European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, 4 November 1950 (entered into force 3 September 1953), Protocol 6; International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966 (entered into force 23 March 1976), Second Optional Protocol; and American Convention on Human Rights, 1144 UNTS 123, 22 November 1969 (entered into force 18 July 1978), Protocol to Abolish the Death Penalty. See the commentary on Common Article 3, para. 677.

13 For details, see the Commentary on common Article 3, section G.3.

14 ICRC, Commentary on the First Geneva Convention, 2nd edition, above note 11, para. 2994. Another example would be the prohibition of violence to life; see Ibid., para. 886.

15 See ICRC, Commentary on the First Geneva Convention, 2nd edition, above note 11, paras 125–126, compared with Pictet, Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol 1: Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, p. 26Google Scholar.

16 ICJ, Military and Paramilitary Activities in and against Nicaragua case, Merits, Judgement, 1986, para. 218.

17 See the commentary on common Article 1, sections E.1 and E.2.

18 See the commentary on common Article 1, section E.3.

19 ICRC, Commentary on the First Geneva Convention, 2nd edition, above note 11, paras 222–223.

20 The proposal read: “When, in case of non-international armed conflict, one or the other Party, or both, benefits from the assistance of operational armed forces afforded by a third State, the Parties to the conflict shall apply the whole of the IHL applicable in international armed conflicts”; Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Report on the work of the Conference, ICRC, Geneva, 1971, p. 50. Among the reasons noted by the experts to reject the proposal was that it would encourage non-international armed groups to seek support from foreign States; see ibid. pp. 51–52.

21 For details see ICRC, Commentary on the First Geneva Convention, 2nd edition, above note 11, paras 402–405.

22 See for example International Criminal Court for the Former Yugoslavia (ICTY), The Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Judgment (Appeals Chamber), 15 July 1999, paras 102–145; International Court of Justice (ICJ), Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement, ICJ Reports 2007, paras 404–405. For a discussion of these cases and the tests they applied, see ICRC, Commentary on the First Geneva Convention, 2nd edition, above note 11, paras 265–273.

23 For a discussion of the overall control test, see ICRC, Commentary on the First Geneva Convention, 2nd edition, above note 11, paras 265–273, in particular para. 271.

24 See Diplomatic Conference for the Establishment of International Conventions for the Protection of War Victims, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 326. At the time, this expression was used to point out the brevity and self-contained character of the draft ultimately adopted as common Article 3, in distinction to other approaches considered at the Diplomatic Conference that would have made certain provisions of the Geneva Conventions as such applicable in non-international armed conflicts.

25 See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, paras 218–219.

26 ICRC, Commentary on the First Geneva Convention, 2nd edition, above note 11, paras 452–502.

27 Ibid ., paras 503–517.

28 Ibid ., paras 518–549.

29 Ibid ., paras 550–580.

30 Ibid ., paras 779–840.

31 Ibid ., paras 841–860.

32 Ibid ., paras 861–869.

33 Ibid ., paras 768–778.

34 Ibid ., paras 881–888.

35 Ibid ., paras 581–695.

36 Ibid ., paras 696–707.

37 Ibid ., paras 717–728.

38 Ibid ., paras 708–716.

39 Ibid ., paras 696–707.

40 J. Pictet, above note 15, p. 110.

41 ICRC, International Humanitarian Law and the challenges of contemporary armed conflicts, report to the 31st International Conference of the Red Cross and Red Crescent, ICRC, Geneva, 2011, p. 25.

42 ICRC, Commentary on the First Geneva Convention, 2nd edition, above note 11, paras 833–834 and 1173–1174.

43 Ibid ., paras 1341–1351.

44 Ibid ., paras 1355–1357.

45 Ibid ., para. 1404. Both terms refer to a practice of intentionally shooting the wounded to make sure they are dead.

46 Ibid ., paras 1389–1391.

47 Ibid ., para. 1750.

48 See Ibid ., paras 1862–1869; 2005–2006; 2393–2402 and 2449.

49 Ibid ., paras 2773–2776. For more on this, see Carswell, Andrew J., “Converting treaties into tactics on military operations”, International Review of the Red Cross, Vol. 96, Nos 895/896, 2014, pp. 919–942 CrossRefGoogle Scholar, available at: https://www.icrc.org/en/international-review/article/converting-treaties-tactics-military-operations; Bates, Elizabeth Stubbins, “Toward effective military training in international humanitarian law”, International Review of the Red Cross, Vol. 96, Nos 895/896, 2014, pp. 795–816 CrossRefGoogle Scholar, available at: https://www.icrc.org/en/international-review/article/towards-effective-military-training-international-humanitarian-law.

50 ICRC, Commentary on the First Geneva Convention, 2nd edition, above note 11, paras 2863–2867.

51 Ibid ., paras 2857 and 2858.

52 Ibid ., paras 2872–2877.

53 Ibid ., paras 2903–2905.

54 See J. Pictet, above note 15, p. 140.

55 ICRC, Commentary on the First Geneva Convention, 2nd edition, above note 11, paras 1427–1429 and 1435.

56 Ibid ., paras 553, 578, 766, 1362, 1373 and 1395.

57 Ibid ., paras 966, 1293, 1931 and 2273.

58 Ibid ., paras 775 and 2649.

59 Ibid . paras 1577, 1667 and 1713.

60 On forwarding of information under Article 16 by email, see Ibid., paras 1593 and 1598; on communication of ratifications or accessions by email, see para. 3259.

61 See Ibid ., para. 1850.

62 Ibid ., paras 253–256.

63 Ibid ., para. 1491.

64 Ibid ., paras 1584, 1661 and 1673.

65 See J. Pictet, above note 15, p. 237.

66 For a recent example of return of medical personnel, see Ibid ., para. 2610.

67 See the commentaries on Articles 26, 27, 32, 34 and 43.

68 Protecting powers are known to have been appointed in the Suez Conflict (1956) between Egypt on one side and France and the United Kingdom on the other, the conflict between France and Tunisia over Bizerte (1961), the Goa crisis (1961) between India and Portugal, the conflict between India and Pakistan (1971), and the Falkland/Malvinas Islands conflict between Argentina and the United Kingdom (1982); see ICRC, Commentary on the First Geneva Convention, 2nd edition, above note 11, para. 1115.

69 See the commentary on Article 8, section H.

70 See Ibid ., paras 51 and 52 with further references.

71 For a definition of the term “good offices” in international law and how its understanding has evolved, see ICRC, Commentary on the First Geneva Convention, 2nd edition, above note 11, paras 1282–1286.

72 Ibid ., paras 3059–3064.

73 Ibid ., paras 2547–2551.

74 See Article 2 of the Third Additional Protocol Additional relating to the adoption of an additional distinctive emblem of 8 December 2005.

75 For details, see the Commentary on Article 8, section H.