Updated Commentary brings fresh insights on continued relevance of Geneva Conventions for warfare at sea

04 May 2017

Updated Commentary on the Second Geneva Convention - Livestreamed event

 

On 4 May 2017, the ICRC hosted a panel for the Launch of the Updated Commentary on the Second Geneva Convention. This livestreamed event offered the Commentaries' perspective on key humanitarian issues while showing their practical utility on the ground.

What is acceptable and what is prohibited in armed conflict? The four Geneva Conventions of 1949 form the foundation of international humanitarian law and provide a framework setting out the answers to that question.

In the 1950s, the ICRC published a set of commentaries on these Conventions, giving practical guidance on their implementation. But to reflect the developments in law and practice since then, we have commissioned a new set of commentaries which seek to reflect the current interpretations of the Conventions. The first instalment, the updated Commentary on the First Convention, was published in 2016. The updated Commentary on the Second Convention on protection of victims of armed conflict at sea is now being published. Jean-Marie Henckaerts, who heads the commentaries project explains more below.

What's the main aim of the updated Commentaries?

The main aim of the updated Commentaries is to give people an understanding of the law as it is interpreted today, so that it is applied effectively in today's armed conflicts. We see this as an important contribution to reaffirming the continued relevance of the Conventions, generating respect for them and strengthening protection for victims caught up in armed conflict. The experience gained in applying and interpreting the Conventions over the last six decades has generated a detailed understanding of how they operate in armed conflicts all over the world and in contexts very different to those that led to their adoption. With this, the new Commentaries go far beyond their first editions from the 1950s, which were largely based on the preparatory work for the Conventions and on the experience of the Second World War.

Can you give an example of issues that this new Commentary clarifies?

The Commentary sheds light on many issues, from how the various rules of international humanitarian law apply in the event of an armed conflict at sea, to the obligation Parties have vis-à-vis the wounded, sick and shipwrecked, as well as the dead, including the obligation to search for them. It explains the specific protection enjoyed by medical transports at sea (e.g. hospitals ships, coastal rescue craft) and the conditions under which such protection may be lost. It also addresses the question how the wounded, sick and shipwrecked have to be collected and cared for after an engagement. The answers to these and other questions have both legal and operational dimensions which the Commentary on the Second Convention addresses.

Who do you anticipate will use this Commentary?

The Commentary is an essential tool for practitioners like naval commanders, officers and lawyers to ensure protection of victims during armed conflict. They will be used to train members of the armed forces, in particular navies, prepare instructions for armed forces and ensure that military orders comply with the law. But they will also be useful for judges who have to apply humanitarian law, including in criminal courts and tribunals where those accused of violating the law may be prosecuted. Other users include lawyers in government, international organizations, the ICRC and National Red Cross and Red Crescent Societies, as well as academics.

For example, in courses on the law of naval warfare, the ICRC liaises with high-ranking naval officers from across Asia and the Pacific who stress to us the importance they place on the humanitarian protections at the heart of the Second Geneva Convention. So we are confident that the updated Commentaries will become an equally important tool, as they provide more nuanced insights and references.

Why is this Commentary relevant in view of the near absence of armed conflicts at sea in recent decades?

It is fortunate that the world has not seen many conflicts at sea in recent years, but we can't be complacent – the rules of war at sea must be known by all and their contemporary meaning understood. The updated Commentaries shows that the Geneva Conventions remain a relevant body of law. They mark one of the greatest humanitarian legal achievements of the 20th century. They can help save lives and we shouldn't abandon them.

Can you give an example of the developments this Commentary takes into account?

The updated Commentary reflects changes in technology, practice and legal scholarship in the past 60 years. A good example is how the development of long-range targeting systems or satellites for search and rescue has changed the technology of conflict at sea. The updated Commentary reflects the relevance of these changes to the interpretation of the Convention's provisions. It also reflects developments in scientific knowledge in relation to the dead at sea (marine taphonomy) and in relation to the search for bodies at sea.

The new Commentary also addresses relevant developments in the legal landscape, including the relationship between the Second Convention and international treaties on the law of the sea that have been adopted since 1949.

Does the new Commentary take into account other areas of international law?

Yes, for example the new Commentary refers on several occasions to the 1982 UN Convention on the Law of the Sea (UNCLOS), a treaty concluded more than 30 years after the adoption of the Second Convention. Since most provisions of UNCLOS remain in operation in time of armed conflict, the Commentary considers how certain terms that are used in the Second Geneva Convention must nowadays be interpreted in light of UNCLOS. In addition, a significant number of treaties have been adopted under the auspices of the International Maritime Organization (IMO) since 1949. Since none of these treaties have a clause expressly permitting derogation in case of armed conflict, the Commentary addresses the question of whether, to what extent and how the IMO treaties apply in case of armed conflict that takes place at sea.

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