Non-State Commentaries: Law-Making or Law-Suggesting?

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| Apr 8, 2021

Commentaries. Geneva Convention Signing 1949. British Red Cross

 

What is the role of non-State commentaries with respect to understanding international law, and more specifically, the law of armed conflict? This question is surprisingly provocative—particularly with regard to the ICRC’s most recent publication of the 2020 Commentary to the Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949.

Indeed, Articles of War has published several posts addressing the ICRC Commentary. In the first of those posts, Sean Watts noted that while the new Commentary may be interesting to academics, the ICRC relies upon “fraught source[s] for the military, diplomatic, and judicial practitioners called on to implement the Convention consistent with established meaning in the challenging conditions of armed conflict.” Rather than focusing on the “negotiating history of the diplomatic conference” and the “views of States”—the approach Pictet took when drafting the original ICRC Commentary—Watts noted that the ICRC instead used a “diverse array of interpretive approaches and supplemental sources” to anchor many of the extrapolations found in the most recent commentary.

In a subsequent post, Michael Meier further discussed the methodology adopted by the ICRC, arguing that the ICRC could and should have done more to comply with the accepted interpretive tools outlined in Article 31 of the Vienna Convention on the Law of Treaties. He concluded that the Commentary’s “methodology falls short” of the rigorous standards required by practitioners and governments who earnestly seek reliable elucidation on the current state of the law of armed conflict.

In response to Watts and Meier, Marco Sassòli defended the ICRC approach, asking if such criticisms suggested “that there should be no more commentaries to law of war treaties, as they should only be interpreted by [the] States[] concluding a new treaty?” His premise seems to be that Watts’s and Meier’s “criticism is not justified.” Indeed, Sassòli concludes: “Does anyone suggest that domestic law may be interpreted only by parliament?”

Our own take on the role of law of war commentaries, and international law commentaries more generally, is that they play a pivotal role in formulating key questions and providing thoughtful, informed opinions on those questions. However, we maintain that State views remain dispositive on the content of the law of armed conflict, and commentaries will be most useful and appropriate when they focus on influencing State views as the means of evolving or adjusting the law, rather than claiming that role itself. Thus, perhaps the better question is: “What is the appropriate role of law of war treaty commentaries?”

The Role of Law of War Treaty Commentaries

The last several decades have seen a dramatic rise in the production of commentaries on LOAC. The San Remo Manual on International Law Applicable to Armed Conflicts at Sea, the ICRC Customary International Humanitarian Law study, the Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, the HPCR Manual on International Law Applicable to Air and Missile Warfare, the Tallinn Manuals, and the upcoming Woomera Manual are examples. Each of these, and others, contain the views of individuals, groups of experts, or institutions, and are not written by States.

Many of these publications clearly note the appropriate role a manual should play in formulating  international law. For example, the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations states:

It is essential to understand that Tallinn Manual 2.0 is not an official document, but rather the product of two separate endeavors undertaken by groups of independent experts acting in their personal capacity . . . . Ultimately, Tallinn Manual 2.0 must be understood only as an expression of the opinions of the two International Groups of Experts as to the state of the law.[1]

The Tallinn Manual sought the input of States through what it called the “Hague Process” whereby States could “unofficially comment on the working drafts.”[2] Such input was never regarded as implicating State positions that would then raise the Manual to the level of international law. Rather, the Manual’s aim was to give the view of the International Group of Experts on the state of the law “as it existed at the point of the Manual’s adoption.” Furthermore, the Experts “assiduously avoid[ed] including statements reflecting lex ferenda” or what any of the assembled group thought the law should be in the future. These protocols pointedly recognized the primacy of States in determining the content of international law and the subsidiary role of views of the International Group of Experts.

This approach is harmonious with Article 38 of the Statute of the International Court of Justice regarding appropriate sources of law. Note the deference to States in the sources Article 38 mandates the Court to apply:

  1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
  2. international custom, as evidence of a general practice accepted as law;
  3. the general principles of law recognized by civilized nations;
  4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Article 38 highlights two important principles. First, Commentaries by non-State actors[3] only fit into this mandatory list of sources—if at all—as a subsidiary means. So, even when commentaries, such as the ICRC commentary as is typically the case, are heavily researched and thoroughly footnoted, it would still be subordinate to three other methodologies in which States can express their views as the correct source of international law. Second, when the International Court of Justice—and, by implication, other courts adjudicating international law—seek interpretations concerning the content of international law, it is not to manuals and commentaries to which they should initially turn, but to States and their official statements and practice, lest the Court lose its legitimacy.

Nevertheless, it is true that sometimes States choose to take an ambiguous position. That is, States at times choose to not proactively address every perceived “gap” in the law. While this aloofness may be inconvenient—especially in circumstances where views on LOAC, and international law more generally, may be divergent—it should not be interpreted as an invitation for non-State actors to speculate as to what States might believe or embrace as binding. Whether the State’s approach to ambiguity is ideal or not, they set the standard on how international law is developed. Therefore, an inability to gain consensus on important questions cannot be remedied by producing (and relying on) views of expert individuals or organizations. And even if non-State actors’ intentions are well placed, it is inappropriate to bypass the paradigm-founding sources of international law.

In places, the new ICRC Commentaries appropriately acknowledge legal ambiguity. For example, at the 1949 Diplomatic Conference, States left when a prisoner of war can be regarded as having successfully escaped internment unclear in the Convention. Although humanitarian impulses might have tempted the ICRC to offer its own refinements or to incorporate refinements from other sources, the new commentary admirably concedes the legal standard for successful escape is simply unclear. By highlighting this ambiguity, the new commentary may provoke renewed State attention to the question, a far more welcome contribution from the ICRC than legal innovation.

Accordingly, insofar as the new ICRC commentaries are appropriately discerned and ranked among other sources of international law interpretations, they are a welcome addition. To this point, the ICRC is often a welcome contributor and holds a special (lawful) place in history for its important role in helping States shape LOAC. Indeed, States have deliberately acknowledged the ICRC’s unique position in the international community,[4] as reflected in the Conventions themselves.[5] And—notably—in an effort to better reflect State’s views, the ICRC has demonstrated a willingness to respond to State comments, both with prior products,[6] and with these updated commentaries, as noted in changes from the commentary on Common Articles 1 through 3 from the updated commentary in GCI to the most recent update to the commentary on GCIII.[7] Therefore, as the ICRC relies on confirmed State practice when providing updated interpretation to decades-old provisions, these commentaries will continue to be a welcome resource to Parties to armed conflicts.

In sum, as with the other manuals and commentaries discussed above, the new ICRC commentaries are understood as the opinions of the individuals, groups, or entities that produced them, and not statements of law—unless and until adopted by States. And as the ICRC continues to realign and conform its interpretations of international law and LOAC with the views of the States, not only will its commentaries become a reliable and valued resource, but its example in doing so will also practically demonstrate the appropriate role law of war treaty commentaries can play in the development and understanding of international law.

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Eric Talbot Jensen is a Professor of Law at Brigham Young University.

Carolyn Sharp is a law student at Brigham Young University. Carolyn focuses her research on the impacts of advanced technology on international law and the law of armed conflict.

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Footnotes

[1] Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, 342, 2 (Columbia University Press eds., 2nd ed. 2017).

[2] Id. at 6.

[3] We use the term non-State actors here to broadly refer to all individuals, groups, or entities other than States.

[4] See Federal Ministry of Defence (Germany), Law of Armed Conflict (May 1, 2013), at 212. Commonwealth of Australia, Law of Armed Conflict (May 11, 2006), at 1-5.

[5] For example, Article 3.2 of each of the conventions states that “An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.” Similarly, Articles 9, 10 of GCI, GCII and GCIII and Articles 10 and 11 of GC IV outline specific roles for the ICRC.

[6] See where the ICRC responded to comments by the United States on the CIHL study.

[7] With respect to positive obligations to “ensure respect,” the 2016 commentary stated, “Some have expressed doubts as to the legal nature of the positive component of the duty to ensure respect by others because the content of the obligation is not clearly defined and its concretization to a large extent left to the High Contracting Parties.”  (¶ 169.8). Seemingly in response to State objections, the 2020 Commentary states, “There is disagreement as to the legal nature of the positive component of the duty to ensure respect by others because the content of the obligation is not clearly defined and its concretization to a large extent left to the High Contracting Parties.” (¶ 202).