Public Panel Rapporteur Session

• Publication year: 2017
• Citation: Vol. 45 No. 3

PUBLIC PANEL RAPPORTEUR SESSION

Student Rapporteur: Matthew Courteau^* & William Ogden^**

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On September 23, 2016, Canadian Major General Blaise Cathcart, Professor Ryan Goodman,¹ Professor Laurie Blank,² and Professor Dapo Akande³ addressed the 2016 Commentaries on the Geneva Conventions of 1949.

After noting that his comments were his own and not those of the Canadian Government, General Cathcart began by noting that sixty-four years had passed since the previous Commentaries, making it a good time for a fresh look at the Geneva Convention. General Cathcart offered five areas of concern about the new Commentaries, as follows.

First, the methodology used by the International Committee of the Red Cross (ICRC): it was unclear how the ICRC made the threshold determination that the original Commentaries even required updating. While there was extensive consultation during the drafting process, it is still not apparent how the ICRC made the determination of which Commentaries were to be updated and why.

Second, the 2016 Commentaries do not reflect the same concerns that were raised in the peer review process of developing the drafts of the new

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Commentaries, which creates, in General Cathcart's personal opinion, a disconnect between the actual State Party contributions and a disconnect with the views expressed by the peer reviewers. Being more open in how the ICRC arrived at their own findings would be helpful in the future. He noted that the original Commentaries followed shortly after the diplomatic conference that lead to the Conventions, which meant the Commentaries were a direct result of hearing from State Parties at the diplomatic conference.

Third, General Cathcart noted a lack of engagement with the State Parties on the part of the ICRC in the updating process. The Commentaries heavily rely upon the concept of State practice, and so the lack of engagement creates an area of concern that needs to be explored. Without formal engagement with the State Parties, the ICRC risks placing too much weight on secondary sources to establish a current snapshot of the current State Parties practice. For example, General Cathcart pointed to the reliance by the ICRC on State military manuals. While that practice has been part of an ongoing dialogue between the State Parties and the ICRC, military manuals may not accurately reflect a State's view on all of the issues, in part because they may be a combination of legal perspectives, operational perspectives from commanders, and policy input from policy makers and politicians. He believes the reliance on items like military manuals highlights the validity of his concerns with the methodology employed by the ICRC in determining what was a State practice. The General believes that making a determination under the Law of Armed Conflict (LOAC) is heavily fact-dependent, so when a State is deciding upon a certain set of facts to make a conclusion, the context of those facts and what those facts actually mean are critical to the final outcome. A virtue of the LOAC is that it attempts to remain agnostic about what States say is happening, in the context of an ongoing conflict where it is clear States are using militaries to fight each other, versus what States actually do, and that does not seem to be reflected in the new Commentaries, according to General Cathcart.

Fourth, the General commented on the over-reliance on Customary International Law (CIL). The Commentaries come to conclusions that are reflections of CIL, when there seems to be insufficient evidence presented of State practice to come to such a conclusion. That was a concern already identified by several States, like the United States, and others in their studies on customary international law. The General feels that the new Commentaries provide a wealth of interpretive guidance to States Parties and LOAC practitioners, but the weakness is where there are poorly supported claims that are made up of the provision of norms that have been made into binding CIL by the new Commentaries. In essence, the General worries about the ICRC relying too heavily on its own views of CIL to come to poorly supported conclusions.

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Finally, General Cathcart believes that the ICRC takes an overly expansive view of Article 1, in that it legally requires States Parties to ensure other State Parties or non-State actors are respecting the Conventions in conflicts where the State Party is not a participant. He suggested that a more narrow interpretation would be welcomed. The General recognized that these areas, such as ensuring respect by other State Parties, are contentious, but that perhaps the ICRC was being too aspirational which resulted...