Multi-Blog Series: First Thoughts from Academia on the Updated GCI Commentary

[This is the third episode in the Multi-blog series on the Updated Geneva Conventions Commentaries, jointly hosted by the Humanitarian Law & Policy Blog, Intercross and Opinio Juris. The first, by Jean-Marie Henckaerts, can be found here, and the second, by Sean Murphy, here.]

It is a great pleasure to contribute to this multi-blog series on the ICRC’s newly-released Commentary on the First Geneva Convention (GC I). Sean Murphy is right that GC I might seem “of lesser significance” than the Third and Fourth Geneva Conventions (GC III and GC IV) – and there is no question that IHL scholars everywhere will eagerly await the ICRC’s Commentaries on those Conventions. But that does not detract from the importance of this first Commentary, which represents a remarkable achievement in its own right. As the Introduction notes, the authors of this new Commentary had to analyze nearly seven decades of state practice, a massive and unenviable task. Moreover, they had to address some of the most contentious issues in IHL, such as the scope of application of Common Article 3 (CA 3). Indeed, I have little doubt that the Commentary’s overall Common Article 3 discussion – which runs to 907 paragraphs, approximately 800 more than its 1952 predecessor! – will attract considerable scholarly attention (and cause considerable academic controversy) in the coming years.

For my part, I generally agree with Murphy’s and Jean-Marie Henckaerts’ comments about the ICRC’s methodological approach in the Commentary. But I think Henckaerts actually underplays one of the most encouraging aspects of the ICRC’s methodology: its willingness to make liberal recourse to travaux preparatoires when interpreting provisions of GC I. Here is paragraph 49 in the Introduction:

Indeed, it seems logical for a thorough examination of all the issues to look at the preparatory work even if the general rule of interpretation yields a satisfactory result. It also helps the commentator to understand ‘the terms of the treaty in their context’ which is a requirement under the general rule (see Article 31(1) and (2) of the Vienna Convention on the Law of Treaties). Recourse to the preparatory work is particularly important when no recent practice on a topic can be found, such as for Articles 33 and 34 of the First Convention dealing with the fate of buildings and material of medical units of the armed forces and aid societies after they fall into enemy hands.

This is a refreshing deviation from VCLT orthodoxy about travaux preparatoires being unnecessary when the “ordinary meaning” of treaty terms is ostensibly clear. As Julian Mortenson has shown, that orthodox view of the VCLT is impossible to reconcile with the treaty’s own history, because “the drafters repeatedly reiterated that any serious effort to understand a treaty should rely on a careful and textually grounded resort to travaux, without embarrassment or apology.” Indeed, scholars all too often use a treaty’s supposed “ordinary meanings” as a vehicle to substitute their own political preferences for the will of the states that drafted and concluded it.

I also agree with Henckaerts and Murphy concerning the central role that the ICRC plays in interpreting the Geneva Conventions – the “guardian and promoter of IHL,” in Henckaerts’ words. But that role poses a danger that needs to be openly acknowledged: namely, that those who use the Commentary – soldiers and scholars alike – will be tempted to uncritically accept the ICRC’s interpretation of GC I. There is no question that the authors of the Commentary are among the world’s most expert IHL practitioners and scholars, but they are neither infallible nor objective. On the contrary, both the experts and the ICRC as an institution have political and legal commitments that cannot help but influence how they interpret GC I. That does not mean that their interpretations should be discarded. It does not even mean their interpretations should always be viewed with a skeptical eye. But it does mean that IHL scholars should be willing to challenge the Commentary when they believe that the ICRC is wrong.

To be clear, I am in no way suggesting bias or bad faith on the part of the Commentary’s authors. I am simply pointing out that interpretation is an inherently indeterminate, subjective, and political activity, which means that it matters a great deal who is doing the interpreting. And there is no escaping the fact that the members of the Editorial Committee, the ICRC Project Team, and the Reading Committee come exclusively from states in the Global North – most from states in Western Europe. Again, that does not mean that the Commentary is wrong on any particular point. Moreover, to the ICRC’s credit, the Commentary’s peer-review group, who “reviewed the drafts and provided comments in their personal capacity,” included individuals from dozens of states in the Global South. But it is nevertheless regrettable that the primary authors and reviewers of the Commentary are so geographically homogenous – especially given that the states they represent rarely if ever experience the kind of conflict that is subject to Common Article 3.

Finally, I want to flag a very odd statement in the Commentary, paragraph 10 in the Introduction:

In addition, what sets the updated Commentaries mandated by the ICRC apart from other academic commentaries is that the contributors were able to draw on research in the ICRC archives, while respecting their confidential nature, to assess the application and interpretation of the Conventions and Protocols since their adoption.

I have no doubt this is true – but I find it somewhat troubling to know that the ICRC’s interpretation of GC I is based on evidence that cannot be subjected to scholarly criticism. I hope the ICRC will say more about its reliance on non-public information in future Commentaries, which will deal with even more controversial aspects of IHL.