Interpretation in the Updated GCIII Commentary

The International Committee of the Red Cross (ICRC) Updated Commentary to the Third Geneva Convention is a remarkable feat of scholarship worthy of serious academic attention. It leaves almost no interpretive stone unturned in its effort to identify the humanitarian possibilities of the universally ratified 1949 Geneva Convention Relative to the Treatment of Prisoners of War.

But the extent to which it will continue its predecessor’s role as a reliable and practically useful guide for States’ law of war practitioners is in doubt. The same variety of interpretation and extensive incorporation of academic work that will make the Updated Commentary so interesting to scholars also makes it a fraught source for the military, diplomatic, and judicial practitioners called on to implement the Convention consistent with established meaning in the challenging conditions of armed conflict.

The Original Commentary

In 1960, Jean Pictet, a member of the Legal Department of the ICRC, published his Commentary to the Third Geneva Convention. Coming just ten years after the Third Convention entered force, the Commentary provided readers with a detailed article-by-article analysis. Pictet had been an active participant in the Convention’s drafting. He announced three goals for his work including “to [set] out the motives for the decisions of the authors of the Convention, [specify] the conditions in which the various provisions are applicable, and . . . [point] out shortcomings observed in connection with numerous problems.”

His Commentary based most of its work on the negotiating history of the diplomatic conference that produced the Convention. The views of States expressed in the formation of the Convention, including especially points on which they were unable to agree, featured heavily in the 1960 Commentary. Pictet proved willing in many cases to accept the Convention’s ambiguity as evidence of the limits of State consensus rather than as gaps to be filled through interpretation. As a result, the Commentary became a largely reliable, if lengthy source for practitioners, particularly at the national level where legal policy is formed.

The Updated Commentary

Sixty years later, the Updated Commentary continues and even exceeds the in-depth approach of its predecessor. If previously published volumes of ICRC Updated Commentaries are a guide, the Third Updated Commentary could run to as many as 2,000 printed pages. Yet the Third Updated Commentary departs significantly from its predecessor’s approach, particularly with respect to interpretation and the established meaning of the Convention. The Updated Commentary goes well beyond the State-focused, gap-conscious approach of its predecessor. It uses a diverse array of interpretive approaches and supplemental sources to produce a thoroughly humanitarian, though interpretively challenging, reconsideration of much of the Convention.

To its credit, the Updated Commentary reveals its fervently progressive philosophy of interpretation at its outset. The foreword declares, “the Convention is a living instrument.”  Having “lived” for seventy years, the Convention, in the view of the ICRC, begs reassessment chiefly based on “subsequent practice” (para 93).

Subsequent Practice

International lawyers will understand resort to “subsequent practice” to refer to the Vienna Convention on the Law of Treaties. Adopted to guide treaty formation and interpretation, the Vienna Convention identifies as relevant to the meaning of a treaty, “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” (Article 31(3)(b)).

International lawyers will also understand that Article 31 does not refer to general or generic practice. It refers only to the practices of the States Parties to a treaty. And it does not refer to all practice by such States, but only to practice that produces agreement between the Parties. Accordingly, readers might reasonably expect from the Updated Commentary a highly selective resort to States’ interpretation and implementation of the Third Convention since 1949. Only practices of the Convention by States would feature. Moreover, only practices that later produce clear evidence of agreement—ideally on the scale enjoyed in 1949 by the text of the Convention itself—by the 194 States Party would feature.

This is not what the Updated Commentary offers. In comment after comment, and particularly in its comprehensive footnotes, it is clear the ICRC envisions a far less exclusive notion of subsequent practice than the Vienna Convention prescribes. The Updated Commentary is rife with elaborations on the Convention based on work by academic, judicial, humanitarian, and international organizations.

No doubt such work has influenced the views of States. And no doubt some such work has even inspired State practice. And, it is further possible that private views of practice have provoked relatively clear evidence of agreement by States as to the meaning of the Convention. However, too often the Updated Commentary permits agreement among these private parties, particularly among academics identifying as IHL experts, to substitute for agreement between States. The ICRC’s comments on Common Article 1 and Common Article 9 of the Convention are representative of this approach. The former has already garnered negative treatment by States and by well-placed legal analysts.

Textual Integrity

The Updated Commentary features other interpretive choices that should give pause to States’ practitioners as well. It swings unpredictably between formalist and functionalist readings of the Convention. For instance, the Updated Commentary insists, admittedly consistent with the text of the Convention, that use of “PW” or “PG” markings to indicate the presence of prisoners of war is limited to camps. It insists these markings may not be used for trains, ships, or vehicles transporting prisoners, despite an apparent logic and value to doing so (para 1903).

Similarly, the Updated Commentary offers a highly literal reading of the qualifications for POW status. It asserts, based on plain reading of the text, that well-known conditions applicable to militia that do not form part of a Party’s armed forces do not apply to captured regular armed forces, despite notable State practice to the contrary (para 1039). And addressing the Convention’s command that a Detaining Power “shall” supply clothing “in sufficient quantities” to POWs, the Updated Commentary maintains that even if other sources provide additional clothing, the Detaining Power must still provide clothing in light of the imperative “shall” (para 2147).

At the same time, the Updated Commentary also features overtly functionalist evolutions and even amendments to the plain or literal meaning of several terms in the Convention. For example, the Convention refers to both “neutral Powers” and “non-belligerent Powers” to describe States not party to an armed conflict. Yet, the Updated Commentary equates the two as synonymous (para 1084). While the Convention indicates canteens shall be established for POWs to purchase supplies, the Updated Commentary indicates short-duration conflicts may render the requirement “unnecessary or unreasonable” (para 2164). And, while the Convention restricts command of POW camps to officers of the “regular armed forces,” the Updated Commentary extends permissible command to leaders of “groups that are under the overall control of a Party” (para 2483).

To be sure, many of these interpretations and amendments seem entirely logical or even trivial. (For an example of the latter, note the Updated Commentary amends the Convention’s requirement to provide “baths and showers” to a requirement to provide “baths or showers” (para 2212)). Yet, many of these changes are grounded in nothing more than what strikes the ICRC and the private contributors to the Updated Commentary as reasonable or unreasonable. There is little evidence of the subsequent practice of States or the clear and conclusive agreement between them that international law permits to effect practice-based amendments to treaties.

Ambiguity

A further departure from the Updated Commentary’s predecessor is reflected in its reduced tolerance for the Convention’s rampant but essential ambiguity. Pictet’s Commentary often noted the meaning of an article of the Conventions was simply unclear or unsettled. On occasion, the Updated Commentary similarly concedes ambiguity. For example, it indicates the Convention does not clearly prescribe how to treat hunger striking POWs (para 1733). The Updated Commentary concedes further ambiguity concerning POW escapes, concluding that when an escape is complete is “unsettled” (para 2554).

Overall, however, the Updated Commentary devotes significantly greater effort toward achieving clarity in the Convention than its predecessor. Indeed, the extraordinarily diverse and sometimes conflicting interpretive methods employed by the Updated Commentary are mostly attributable to its ambition for clarity. For instance, the Updated Commentary imports human rights-based restrictions on use of weapons by law enforcement to supplement the Convention’s somewhat rudimentary rules on using weapons against POWs (para 2536). The Updated Commentary’s treatment of the Common Article 1 obligation to “respect and ensure respect” for the Convention and its significant elaborations on States’ obligations toward humanitarian relief display similarly reduced tolerance for ambiguity, despite State practice pointing precisely to the contrary.

Implications

Admittedly, the Updated Commentary could not have been expected simply to reproduce the interpretive effort of its predecessor. Pictet’s Commentary was surely the right commentary for its time. The Convention’s original meaning and negotiating history constituted the most significant clues to its motives, scope of application, and shortcomings then available. An Updated Commentary devoted to collecting and applying seventy years of accumulated practice with the Convention would surely be the right commentary for this time. Yet, too often the Updated Commentary veers away from identifying the Convention’s universally understood and agreed evolutions to compiling an exhaustive and comprehensive survey of academic explorations and interpretive possibilities.

Although its scale reflects a scholarly devotion to study and comprehension, the Updated Commentary achieves its doctrinal clarifications at the expense of reliability. It is a decidedly academic product in both its approach and its sourcing. Accordingly, as with any academic work, law of war practitioners should exercise caution relying on it to inform their practice.

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Prof Sean Watts is a Professor in the Department of Law, Co-Director of the the Lieber Institute for Law and Land Warfare at the United States Military Academy at West Point, and Co-Editor-in-Chief of Articles of War.