The Sea is Still Cruel – A Mariner’s Perspective on Some Aspects of the Updated ICRC Commentary on the Second Geneva Convention

by Peter Barker

[Lieutenant Commander Peter Barker is a Royal Navy barrister, currently serving as the Associate Director for the Law of Coalition Operations at the United States Naval War College.  The views expressed in this article are personal and do not reflect the position of the United Kingdom government or Armed Forces.]

Technology has changed many aspects of naval warfare and the rate of change shows no sign of abating.  Despite these developments, the physical effects of immersion in the ocean are essentially the same for a shipwrecked sailor in the 21st century as for sailors of previous centuries.  The human body will still cool about 25 times quicker in water than in air.  Survival times in freezing water can be as short as 15 minutes and even in more benign temperatures, life expectancy can be as short as 1 to 6 hours depending on physiological condition.  Exhaustion will quickly set in and the presence of sea spray creates a real risk of secondary drowning.  It is a trite statement that international humanitarian law is concerned with the protection of the vulnerable in armed conflicts, combatants as well as civilians.  The unique dangers of the sea for shipwrecked sailors makes them acutely vulnerable and in need of these protections.

For these reasons, the requirement for parties to a conflict to search for, and collect, the shipwrecked is critical to the protections contained within the Second Geneva Convention.  The obligation is made explicit in article 18, although this is a natural extension of the requirement to respect and protect the shipwrecked in all circumstances contained in article 12.  As stated in the updated ICRC Commentary, article 18(1) is “among the most important provisions in the Second Convention [and]… is paramount in achieving one of the core objectives of the Convention” (para 1617).  These words are uncontroversial and the importance of the general duty to rescue has been highlighted recently in an International Review of the Red Cross article.

Whilst the importance of article 18(1) might be clear, the exact interpretation of this critical provision is ambiguous in two key respects.  Firstly, the requirement to act arises only “at the end of the engagement”.  The need to identify the end of the engagement is unique to the Second Convention.  The equivalent provision for land warfare (article 15 of the First Geneva Convention) includes a requirement to act “at all times”.  Unfortunately for legal certainty, the days of traditional naval battles, the meeting of two fleets and the emergence of a victor, are now consigned to history.  Modern naval warfare occurs across a range of domains, both physical and electronic.  It is possible for a ship to be attacked (and therefore in an engagement) without being immediately aware of the fact.  Similarly, the point at which hostile action ends may be vague and so it may be difficult to assess exactly when the duties contained within article 18(1) are triggered.  The updated ICRC Commentary suggests that this determination requires a “good faith assessment” (para 1655) but precisely what factors are required to be taken into account remains unclear.

Secondly, the Parties are required to take “all possible measures” to search for, and collect, the wounded, shipwrecked and sick.  This phrase seems to place a heavy burden on Parties and the commanding officers of units at sea.  One reading would suggest that this requires Parties to take any action that is not impossible.  The reality of naval conflict is that this interpretation would inevitably require ships and submarines to be placed at considerable risk, a conclusion that would be militarily unacceptable.  Instead, both the ICRC and various States have openly acknowledged that there are limits to this requirement, but the extent of these vary depending on the source.  A full review of this issue is beyond the scope of this post, but a brief overview of various approaches is sufficient to highlight the interpretive problem associated with this phrase.

The UK Manual of the Law of Armed Conflict circumscribes the phrase “all possible measures” by the simple insertion of the words “consistent with their own security”.  This is almost identical to the approach taken by the United States in one part of “The Commander’s Handbook on the Law of Naval Operations” (“consistent with the security of their forces” – para 11.6).  This can be contrasted with another approach adopted within the same document when dealing with reportable violations where it suggests that the caveat to “all possible measures” is “when military interests do permit” (para 6.3).  Different wording is used in the US Department of Defense Law of War Manual (para 7.4.4), where, in line with the original ICRC Commentary of 1960 (page 130), emphasis is placed on the judgment of individual military commanders in assessing what is possible.  Personnel are not expected to “place their lives at undue risk” and a commander of a naval ship “need not increase the risk to his or her vessel from threats”.  The updated ICRC Commentary adopts a different, arguably more stringent standard.  At para 1650, it acknowledges that almost all actions required of commanders under article 18 will require the assumption of some risk to their own forces.  It is only when there is “major risk to its personnel” that the requirement to act is lifted.  It is not necessary to examine this in further detail.  The simple point is that there are a variety of standards adopted when interpreting the phrase “all possible measures”, particularly when deciding on the level of risk to their own forces that commanders are expected to assume when fulfilling their obligations.

This unresolved ambiguity has clear consequences for the shipwrecked sailor whose protection may be undesirably dependent on individual circumstances or the views of the opposing Party.  It also has consequences for naval commanders.  The captain of a ship or submarine, as an agent of the “Party to the conflict” will bear responsibility for ensuring that the provisions of the Convention are adhered to.  Failure to act, leading to the death or serious injury of shipwrecked sailors, may constitute a grave breach of the Convention for the purposes of Article 51.  A full review of the position in international criminal law is unnecessary but it is sufficient to note that the 2017 ICRC Commentary (para 3065) considers that willfully leaving shipwrecked survivors without assistance may amount to the grave breach of willful killing.  The exact circumstances in which this liability would arise are not clear, partly due to the issues surrounding the phrase “all possible measures”.  This is particularly difficult when naval commanders, especially those on submarines, may be making decisions in very short time frames and without access to legal advice.  In these situations, it would be hoped that knowledge of the actions required would be instinctive but this seems impossible given the current state of the law.

For “those in peril on the sea”, article 18 of the Second Geneva Convention is of particular importance, given their acute vulnerability.  For commanders, who are likely to be required to fulfil the Convention obligations in practice, the provisions are frustratingly unclear

http://opiniojuris.org/2017/11/16/the-sea-is-still-cruel-a-mariners-perspective-on-some-aspects-of-the-updated-icrc-commentary-on-the-second-geneva-convention/

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