«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 1950’s, the ICRC published a set of Commentaries on these Conventions, giving practical guidance on their implementation. But to reflect the new developments in law and practice since then, the organization has commissioned a new set of commentaries which seek to reflect the current interpretations of the Conventions. The first installment, an updated Commentary on the First Convention is now being published. Jean-Marie Henckaerts, who heads the commentaries project explains more:
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 the Commentaries clarify?
The Commentaries shed light on many issues, from how the various rules of IHL apply in the complex conflicts of today, to the obligation Parties have vis-à-vis the wounded and sick. For example, the First Geneva Convention requires the wounded and sick to be protected and respected. But what does that mean in practice? What standard of medical care is required for the treatment of wounded and sick? How can the wounded and sick be collected and cared for when there are no troops on the ground? The answers to these and other questions have both legal and operational dimensions which the Commentary on the First Convention addresses.
Who do you anticipate will use the Commentaries?
The Commentaries are an essential tool for practitioners like military commanders, officers and lawyers to be able to ensure protection of victims during armed conflict. They will be used for training members of the armed forces, preparing instructions for armed forces and ensuring 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. We know that the 1950s Commentaries have been useful for them. So we are confident that the updated Commentaries will become an equally important tool as they provide more nuanced insights and references…
How do the Commentaries reflect the prevalence of today’s non-international armed conflicts?
As the majority of conflicts today are of a non-international character, the regulation of these conflicts has become a crucial issue. Article 3 is a central provision of the Conventions on these conflicts and the new Commentary provides a comprehensive interpretation of all the aspects of this «mini Convention». These include its scope of application, the requirement of humane treatment, the care for wounded and sick, humanitarian activities and criminal aspects and compliance. But it also deals with pressing topics such as sexual violence and non-refoulement, which is the prohibition of sending people back to countries where their lives could be in danger.
What other developments do the Commentaries take into account?
A good example is the way the protection of women is addressed. The reference in the original Commentary to women as ‘weaker than oneself and whose honour and modesty call for respect’ would no longer be considered appropriate. Of course, the original commentaries were a product of the social and historical context of the time. Today, however, there is a deeper understanding that women, men, girls and boys have specific needs and capacities linked to the different ways armed conflict may affect them. The new Commentary reflects the social and international legal developments in relation to equality of the sexes.
Do the new Commentaries take into account other areas of international law?
When the Geneva Conventions were adopted, many areas of international law were still in their infancy, such as human rights law, international criminal law and refugee law, but they have grown significantly in the meantime. These areas of law are complementary to humanitarian law as they all seek to provide protection to persons in need of it. Humanitarian law is not a self-contained body of law; there is a lot of communication with other areas of international law. Therefore, current interpretations offered in the new Commentaries take these developments in other areas into account whenever they are relevant for the interpretation of a Convention rule. There are also developments in other, more technical areas such as the law of treaties or the law on State responsibility which are also reflected in the new Commentaries.»
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