The Updated Commentary on the First Geneva Convention – a New Tool for Generating Respect for International Humanitarian Law*

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

THE UPDATED COMMENTARY ON THE FIRST GENEVA CONVENTION – A NEW TOOL FOR GENERATING RESPECT FOR INTERNATIONAL HUMANITARIAN LAW^*

Lindsey Cameron, Jean-Marie Henckaerts, Bruno Demeyere, Eve La Haye & Heike Niebergall-Lakner^**

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TABLE OF CONTENTS

I. ACONTEMPORARY INTERPRETATION OF HUMANITARIAN LAW ................................................................................................551

II. THE UPDATING OF THE COMMENTARY IN A NUTSHELL .................553

III. EXAMPLES OF EVOLUTIONS IN THE INTERPRETATIONS SINCE 1949 ................................................................................................556

A. Common Articles......................................................................557

1. The Duty to Respect and Ensure Respect Found in Common Article 1..............................................................557
2. Classification of Armed Conflict in Common Article 2.....558
3. The Regulation of Non-international Armed Conflicts in Common Article 3..........................................................559
4. Offer of Services in Common Articles 3 and 9...................561

B. Developments in Other Areas...................................................562

1. Protection of the Wounded and Sick..................................562
2. The Duty to Disseminate....................................................563
3. Criminal Repression of Breaches......................................563

C. Some Cross-cutting Issues........................................................564

1. A Gender Perspective to Interpreting the First Convention.........................................................................564
2. New Technologies..............................................................565

D. Specific Issues Related to State Practice.................................. 566

1. Areas Where There Has Been Little Practice Since 1949 ...................................................................................566
2. Procedures in the Convention That Have Not Been Applied as Such.................................................................. 567

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3. State Practice Diverging from the Literal Meaning of the Text...............................................................................568

IV. CONCLUSION ...................................................................................568

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KEYWORDS: International humanitarian law, First Geneva Convention, updated Commentary, International Committee of the Red Cross, State practice, protection of wounded and sick, non-international armed conflict, duty to respect and ensure respect, classification of armed conflict, offer of services, gender, dissemination, criminal repression.

I. ACONTEMPORARY INTERPRETATION OF HUMANITARIAN LAW

In 2011, the ICRC, along with a number of renowned external experts embarked on a major project: updating the Commentaries on the Geneva Conventions of 1949 and their Additional Protocols of 1977.¹ Since the drafting of the original Commentaries in the 1950s and 1980s, the Geneva Conventions and their Additional Protocols have been put to the test on numerous occasions, and there have been significant developments in how they are applied and interpreted in practice. With the project of updating all six Commentaries, the ICRC seeks to ensure that these developments are captured in the Commentaries and that up-to-date and comprehensive interpretations of the law are provided. The project is carried out as part of the ICRC's role "to work for the understanding and dissemination of knowledge of international humanitarian law" (IHL) and for its faithful application.²

With the completion of the updated Commentary on the First Geneva Convention on the Protection of the Wounded and Sick of Armed Forces in the Field, the first major milestone has been reached. The Commentary is available free of charge on the ICRC website.³

The First Convention elaborates the fundamental obligation of IHL that was originally championed by the founders of the ICRC, i.e., that the wounded and sick members of the armed forces are to be respected and protected in all circumstances, be treated humanely and cared for, whether friend or foe. As such, the First Convention more than any other IHL treaty represents the embodiment of Henry Dunant's idea that the soldier who is wounded or sick, and who is therefore hors de combat, is from that moment

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inviolable.⁴ As an essential condition for the wounded and sick to be collected and cared for, protection is also afforded to military medical personnel, units, material and transports. Furthermore, the First Convention contains the provisions relating to the use and protection of the emblem, both reaffirming the protective function of the emblem and clarifying the restrictions on its use.

However, the importance of this milestone further derives from the fact that the updated Commentary on the First Convention also provides updates on the articles common to all four Geneva Conventions. Among these are articles which are central to the application and protection provided by the four Conventions, such as common Article 1 dealing with the obligation to respect and to ensure respect for the Conventions in all circumstances and common Article 2 defining their scope of application. Within the group of common articles, common Article 3 stands out in particular, as it is the only provision in the universally ratified 1949 Geneva Conventions that was specifically designed to govern non-international armed conflicts.⁵ Neither the drafters of the 1949 Geneva Conventions, nor the drafters of the initial Commentary in 1952 could foresee the prevalence that non-international armed conflicts would take in the decades following the adoption of the Convention. The new Commentary takes this prevalence into account and analyses the legal regime contained in common Article 3 in unprecedented detail.

This Article provides a brief overview of the process of updating the Commentary on the First Convention and summarizes the main evolutions in interpretations of the treaty norms since 1949 that have been found in State practice and international jurisprudence and literature. The examples listed in this summary are not exhaustive but they serve to highlight the continued relevance of international humanitarian law in contemporary armed conflicts. Throughout the Article references to the updated Commentary guide the reader to more detailed discussions of the topics listed.

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II. THE UPDATING OF THE COMMENTARY IN A NUTSHELL

The 2016 Commentary on the First Convention, as well as the updated Commentaries on the Second, Third and Fourth Convention and on the Additional Protocols that are currently still worked on, aim to contribute to the clarification of IHL by providing contemporary, thoroughly researched interpretations of IHL.

It preserves the format of the 1952 Commentary (also known as the Pictet Commentary), that is to say an article-by-article commentary on each of the provisions of the Convention. It is based on research that includes an analysis of State practice in the application and interpretation of the treaties, e.g., in military manuals, national legislation or official statements; interpretations and clarifications provided in case law and scholarly writings. Additionally, the contributors to the Commentary were able to draw on research in the ICRC Archives and to reflect the application and interpretation of the Convention since its adoption in light of the practice witnessed by the ICRC in past armed conflicts.

In the updated Commentary, practitioners and scholars will find detailed information relevant for a comprehensive understanding of each provision in the First Convention. The updated Commentary provides a picture of the current understandings of the law. This not only includes interpretations supported by the ICRC, but also indications where there are diverging views or were there are issues that are not settled and require further discussion. As such, it is not the final word but a solid basis for further discussion about the implementation, clarification and development of IHL. Importantly, it serves as a new guidance tool for States, international organizations, courts and humanitarian actors in their efforts aimed at reasserting the importance of IHL and at generating respect for the law.

The drafting process of the updated Commentary has benefited from considerable external involvement and has thus gone far beyond the drafting process of the initial Pictet Commentaries. Authors drafting one of the updated commentaries to a specific article had the opportunity to read and comment on the updated commentaries on all other articles of the Convention. This review provided a layer of scrutiny and helped to ensure that the interpretations are coherent throughout the Commentary. Furthermore, the whole commentary was reviewed by an Editorial Committee which includes senior ICRC and non-ICRC lawyers.⁶

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In addition, more than sixty practitioners and academics from all corners of the world have been asked to peer review the draft Commentary and have provided valuable comments and input into the final product. This elaborate process helped to ensure that all main views were taken into account.⁷ As a result, the updated Commentary reflects the ICRC's interpretation of the law, whenever there is one, and presents the main schools of thought where divergences of views exist on the interpretation of any particular provision. Given the Commentary's nature as an interpretative and practical guidance tool, however, it should be noted that there has been no formal consultation process with States as part of the drafting process.

In preparing the updated commentary, the authors followed the rules of the Vienna Convention on the Law of Treaties on treaty interpretation, in particular, Articles 31-32 VCLT. They looked at the ordinary meaning...