Bringing the Commentaries on the Geneva Conventions and their Additional Protocols into the 21st Century
The ICRC Commentaries on the 1949 Geneva Conventions date back to the 1950s and those on the 1977 Additional Protocols to the 1980s. Since the original Commentaries were published, the Conventions and Protocols have been put to the test. Practice with respect to their application and interpretation has grown significantly. In order to capture these developments, a major ICRC project to update the Commentaries is now well underway.
Jean-Marie Henckaerts, legal adviser and head of the project, describes the nature of the initiative and what the ICRC hopes to achieve.
Would you explain the purpose of the ICRC Commentaries?
The Commentaries are an excellent resource to get a better understanding of each provision of the Geneva Conventions and their Additional Protocols. They provide guidance on how each provision is to be interpreted and applied in order to secure better protection for the victims of armed conflict. Hence, they are a valuable tool for practitioners, lawyers, judges and scholars who apply or study international humanitarian law.
In order to interpret and apply a treaty correctly, it is essential to understand the exact meaning of the words used and the relationship between different provisions. The basic rule is that a treaty must be interpreted in good faith, in accordance with the ordinary meaning attached to the terms of the treaty in their context and in the light of the objective and purpose of the treaty. Subsequent practice of States Parties in interpreting and applying the treaty has to be taken into account as well. The analysis of subsequent practice therefore represents an important part of the project’s research. Even so, the meaning of some terms may remain ambiguous or obscure, which is why recourse can be had to supplementary means of interpretation, including the work preparatory to the adoption of the treaty.
Why is the ICRC updating the Commentaries?
The original Commentaries on the Geneva Conventions and Protocols were based primarily on the negotiating history of these treaties and on prior practice and, in that respect, they remain largely valid. However, the passage of time and the development of practice have made it necessary to update them.
The update will reflect the experience gained in applying the Conventions and Protocols during the last few decades, while preserving the elements of the existing Commentaries that are still relevant. The object is to add to the latter to ensure that the Commentaries reflect contemporary reality and legal interpretation.
Can you give examples of areas where the Commentaries need to be updated?
Common Article 1 of the Geneva Conventions, for example, states that the ‘High Contracting Parties undertake to respect and ensure respect’ for these Conventions ‘in all circumstances’. The international community’s understanding of the obligation to ‘ensure respect’ for humanitarian law has significantly expanded since the 1950s. The updated Commentaries seek to capture and present this understanding.
Another example relates to the area of humanitarian activities where the Conventions provide that both the ICRC and ‘any other impartial humanitarian organization’ may offer to undertake such activities. The context in which this occurs today, in terms of the diversity of actors as well as the challenges for humanitarian action, are very different from when the original Commentaries were written.
In another area, occupation law, the update will be able to offer further clarification on a range of issues, such as the beginning and end of occupation and on the security measures an occupying power may take in an occupied territory. In this respect, the update will be able to draw on the ICRC’s long experience in this area and on a series of expert meetings that it organized.
How are you approaching this research?
The preparatory research is undertaken by topic, not article by article. This is necessary in order to ensure consistency throughout the Commentaries, because many topics are dealt with in one or more of the Conventions and Protocols. For example, provisions dealing with the wounded and sick can be found in the First, Second and Fourth Geneva Conventions and in both Additional Protocols. So, the preparatory work for the updated commentaries on these provisions has to be undertaken together. This method gives us a better overview of the issues involved. Other such cross-cutting issues include, for example, the protection of children, missing persons, the restoration of family links, humanitarian assistance and the use of distinctive emblems.
What sources are you relying on to update the Commentaries?
Research for the project examines a variety of sources relevant for the application and interpretation of the treaties in recent decades, including military manuals, legislation and case law, as well as academic commentary and the ICRC’s own field experience. In addition, consultations with practitioners take place. The project also uses the ICRC’s customary law database, in particular for access to State practice with respect to the application and interpretation of humanitarian law.
Where relevant, the update will also take into account developments in related areas of international law, such as international criminal law and international human rights law. These areas were still in their infancy when the Geneva Conventions were adopted, and have grown significantly in recent years.
Are external experts supporting the project?
Yes. While the updated Commentaries will be published by the ICRC, the process leading up to their publication will involve external experts at various levels. Several external contributors have been invited to draft part of the Commentaries, alongside in-house lawyers who draft other parts. Furthermore, the Editorial Committee overseeing the drafting of the Commentaries comprises well-known external experts, in addition to senior ICRC lawyers. Before they are finalized, the draft Commentaries will undergo a ‘peer review’ by a selection of scholars and practitioners involved in the application of humanitarian law.
Please explain the process and format for the publication of the updated Commentaries?
We plan to publish the volumes of the Commentaries as they become available, aiming for the updated Commentary on the First Geneva Convention to be available in 2015 and the other volumes in subsequent years.
The updated Commentaries will follow the same format as the original versions: an article-by-article commentary on each of the provisions of the treaties. The new edition will provide many references to practice and academic literature, which should facilitate further research and reading. In addition, detailed cross-references will make it easy to find information on related provisions in the Commentaries.
The updated Commentaries have to be accessible and widely available. Therefore, in addition to print, we plan to make the updated Commentaries available electronically.. The electronic version will facilitate search and navigation.