Earlier this month, I commented on the similarities and differences between the Updated Commentary on the Geneva Conventions of 1949 and the US Defense Department’s new Law of War Manual. Although these two important secondary sources of international law are similar in scale, legitimacy, and pedigree, they differ significantly in authorship, sources of support, and, most importantly, their approaches to the many ambiguities of the First Geneva Convention. In this, the second of three posts on the topic, it’s worth exploring these sources’ reactions to ambiguity further. A third post will examine what these publications and their differences might mean for the future of warfare.
The Updated Commentary is surely at its best when explaining the Convention’s provisions on their face and especially when explaining interactions of the various requirements of the Convention. For instance, with respect to Neutral Powers’ requirements to apply by analogy the First Convention to wounded and sick on their territory, the Updated Commentary reminds readers, “Moreover, it in no way qualifies or suspends the obligation on the neutral Power to bring before its courts persons alleged to have committed, or to have ordered to be committed, grave breaches of the Conventions.” (Para. 930) Considering that the Conventions present numerous overlapping and complementary provisions scattered across over their four hundred and nineteen articles, the Updated Commentary does readers a great service with its efforts to harmonize and balance these distinct obligations.
The Updated Commentary and DoD Manual’s approaches to the Convention’s more ambiguous and vague passages are enormously significant. They showcase competing approaches that, as much as any difference, illustrate a fundamental divide between their respective organizations’ outlooks on the law of war. The Updated Commentary in many instances gives the impression of working toward a great measure of completeness. A comment addressing common Article 3’s guarantee of humane treatment observes:
Including a comprehensive definition of humane treatment in common Article 3 would have created a framework that risked being too narrow and inflexible, and as such incapable of ensuring humane treatment in situations where unforeseen or particular circumstances, such as climatic conditions, cultural sensitivities or individual needs, have to be taken into account. At the same time, giving no guidance at all on the meaning of humane treatment could have left Parties to an armed conflict with too much latitude, leading to interpretations incompatible with the objectives of this fundamental rule. [Para. 554.]
Thus in this case, the First Convention’s resort to a vague term is understood by the Updated Commentary to limit rather than guarantee operational flexibility for States. For many, recent experience with these terms will vindicate the Updated Commentary’s approach. But as an interpretive matter, States taking part in future diplomatic conferences must be forewarned that resort to ambiguity does not in all cases guarantee operational flexibility.
Other silences and ambiguities, especially with respect to common Article 3 treatment of non-international armed conflict, receive similar treatment. The Updated Commentary notes correctly that common Article 3 does not address medical units, transports and personnel. Yet, it concludes that protection of such persons and assets nearly commensurate with that of the full Convention applicable to international armed conflict is “implicit in common Article 3” (para. 768-78).
The humanitarian logic of the conclusion is nearly unassailable. Still, the conclusion that such protections fall within common Article 3 itself, rather than having developed as custom independent of the Convention, is both textually and structurally troubling. It is especially difficult to imagine where exactly the principled limit of such interpretive imports lies. Jurists have long questioned the logic of the international armed conflict-non-international armed conflict divide. Surely humanitarian logic has a place in interpretation of positive text but whether it should be used to import or imply protections wholesale to fill textual voids is another matter. On a larger interpretive scale the Updated Commentary’s approach might lead one to ask (to butcher somewhat Justice Holmes’s expression) whether the life of the law of non-international armed conflict has truly been humanitarian logic or rather sovereignty?
And yet the Updated Commentary seems to conclude that not all ambiguities are equal. On occasion, the Updated Commentary proves willing to allow ambiguity to stand. Despite its enormous documentary and analytical sourcing as well as its authors’ enthusiasm for open-ended, teleological and purposive interpretive methods, the Updated Commentary regards some of the Convention’s text and relevant State practice insufficient to resolve ambiguity. This is highly commendable. With respect to whether common Article 3 applies in the home territory of States parties that intervene extraterritorially in non-international armed conflicts the Updated Commentary concludes: “there is insufficient identifiable State practice.” Para. 473. Similar conclusions are reached with respect to:
- States’ authority to resort to security detention in non-international armed conflict (para. 717-20);
- the availability of belligerent reprisals in non-international armed conflict (para. 905) and;
- resort to force against fighters in areas under firm government control during non-international armed conflict (para. 463).
The Updated Commentary also concedes an important ambiguity with respect to medical units forfeiting their protection from attack by virtue of committing “acts harmful to the enemy” as understood by Article 21. Article 21 of the First Geneva Convention stipulates that medical units’ protection from targeting ceases when they are used to commit “acts harmful to the enemy.” Although a comment concludes that the Article impliedly requires doubt be resolved in favor of retaining protection, a subsequent passage concedes ambiguity with respect to resumption of protection:
The stipulation in Article 21 that protection will ‘cease’, without any further qualification, appears to suggest that once protection is lost, it cannot be regained for the duration of hostilities. However, this conclusion might be unjustified, given the purpose of a loss of specific protection, especially where a single ‘act harmful to the enemy’ does not produce any further harmful consequences for the enemy that would render an attack necessary. Moreover, for protection to be regained after the harmful consequences of an ‘act harmful to the enemy’ have ceased might be deemed desirable from the point of view of the wounded and sick, who once again could benefit from an unhindered provision of medical care. Neither the preparatory work nor subsequent State practice in the interpretation of this provision allow definite conclusions to be drawn on this question. Para. 1856.
Similarly commendable is the Updated Commentary’s appreciation that not all provisions of the Convention require a finer point being put on them. Good faith application by Parties is permitted to prevail over closely prescribed interpretation with respect to a number of provisions. For instance:
Interpretation of the meaning of ‘wounded and sick’ is a matter of common sense and good faith. A combatant must take into account all the information reasonably available at the time before making a determination of whether a person is wounded or sick in the sense of Article 12. [Para. 1347.]
And regarding the Article 15 duty to search for wounded:
The military command must judge reasonably and in good faith, based on the circumstances and the available information, what is possible and to what extent it can commit its medical personnel. (Para. 1487)
And respecting the decision to retain captured medical personnel the Updated Commentary demonstrates admirable interpretive restraint:
The controversy surrounding the drafting of Article 28 meant that the provision as adopted lacked detail in certain respects. States decided to leave unanswered some of the specifics of the retention regime, such as the ratios between certain types of medical personnel and the number of prisoners of war, and did not include details of the relief of retained medical and religious personnel. [Para. 2160]
. . . In any event, the Detaining Power has to assess in good faith the factual circumstances surrounding the need for retention. [Para. 2166.]
In another instance the Updated Commentary concedes that the Convention’s treatment of requisitions of civilians and their property for medical transport is almost entirely unclear:
Article 35(3) states that ‘[t]he civilian personnel and all means of transport obtained by requisition shall be subject to the general rules of international law’. The same rule, with identical wording, appeared as Article 17(6) of the 1929 Geneva Convention on the Wounded and Sick. The interpretation of this sentence, which does not seem to have led to any reported application in practice or been the object of any analysis in the literature, is not clear. [Para. 2417.]
The Updated Commentary wisely judges that the First Conventions left States to develop doctrine on these points between themselves or even to leave them uncommitted to international law at all.
Unlike the DoD Manual’s bare (and nearly compulsive?) hyperlinks between sections, the Updated Commentary provides complete and self-contained narratives of complementary articles of the Convention as well as helpful citations to other bodies of law. The Article 8 comment on Protecting Powers and diplomatic law (Para.Para. 1035-37) and the Article 27 discussion of the legal situation of medical staffs of neutral societies and the interface of personal property and identification provisions of the Convention (para. 2104) are illustrative. Each cross-reference offers exceptionally useful guidance informed by realistic operational considerations.
Commenting on a 67-year old treaty, the Updated Commentary necessarily faced the issue whether to conclude that certain provisions of the First Convention had become obsolete and therefore had fallen into desuetude. Several provisions of the First Convention might have qualified as insufficiently implemented or too frequently breached to remain in force. Yet the Updated Commentary assiduously avoids findings of desuetude. For instance, the Updated Commentary reinterprets rather than dismisses the little-used, Article 8 system of Protecting Powers providing:
Practice since 1949 has not developed in the direction envisioned by the drafters of the Geneva Conventions: the appointment of Protecting Powers in case of an international armed conflict has been the exception rather than the rule. Seemingly, practice since 1949 has evolved to the point of considering the appointment of Protecting Powers as optional in nature. [Para. 1014.]
And with respect to permitting substitutes for Protecting Powers under Article 10:
[S]ince 1949 it appears that the interpretation of Article 10 as being compulsory is no longer in line with States’ current understanding of this provision, nor with the ICRC’s operational practice. Substitutes for the Protecting Powers have not been formally appointed when they should have been in accordance with the letter of the Conventions. Thus, given the absence of any protest, it seems that in the view of most States the failure to appoint a Protecting Power in each international armed conflict is not a violation of the High Contracting Parties’ treaty obligations: as with Article 8, the application of Article 10 appears to have been interpreted as being optional. [Para. 1253]
With respect to Article 11 conciliation procedures:
The mechanism established under Article 11 has to date never been used. [Para. 1305.]
And with respect to Article 26 incorporation of staff of aid societies into States’ armed forces’ medical services:
The scant practice with regard to Article 26 is without prejudice to this provision’s continued validity as a matter of treaty law: this provision has not fallen into desuetude. [Para. 2086.]
And commenting similarly on resort to aid societies of neutral States:
Since the end of the Second World War, there do not seem to have been any instances in which the potential for assistance provided by Article 27 has been used. [Para. 2106.]
The scant practice with regard to Article 27 is without prejudice to this provision’s continued validity as a matter of treaty law: this provision has not fallen into desuetude. [Para. 2116.]
Similar observations concerning serial disuse by States is noted with respect to Articles 10, 11, 25, 26, 27, 29, and 52. The latter article, outlining an enquiry procedure that has never been used owing to deep flaws in its conception, presents perhaps the most compelling case for a conclusion of desuetude in the entire Convention. Yet, the nearest the Updated Commentary comes to identifying desuetude concerns the Article 41 armlet markings for Article 25 auxiliary medical personnel. The relevant comment notes:
There is good reason to consider that the requirement set down in Article 41 for the emblem displayed on the armlets of auxiliary medical personnel to be ‘in miniature’ is obsolete. [Para. 2618]
The Updated Commentary prefers to characterize these provisions as dormant—as if lying in wait for resurrection in a future armed conflict. While understandable with respect to the clearly optional provisions, the rejection of desuetude in the face of clear obsolescence seems less defensible with respect to the Convention’s provisions that are stated in clearly compulsory terms.
Other provisions of the Updated Commentary, as expected, evince a strong humanitarian interpretive predisposition. Most notably, comments on common Article 1 of the Convention understand that provision as an all-encompassing primary rule with independent and expansive substantive content owed to all Parties to the Convention, not merely to enemy powers. (Para. 119, 153).
And according to the Updated Commentary, High Contracting Parties owe both positive and negative obligations under Article 1. These obligations extend beyond Parties own organs to agents they assist or even encourage. By comparison, the DoD Manual greatly downplays the provision. The DoD Manual interprets common Article 1 chiefly to reinforce jus in bello independence from the jus ad bellum, noting that the Conventions’ obligations persist even in circumstances of aggression or other unlawful resort to force. (Para. 3.5.2.1). Elsewhere, the Manual interprets Article 1 to require States “take the measures that the State deems appropriate in order to fulfill its obligations under the conventions.” (Para. 18.1.2.1).
Additionally, comments on the regime of protection for medical aircraft evince significant dissatisfaction with the State of the Convention. Quoting its Commentary to 1977 Additional Protocol I, the Updated Commentary observes:
‘[f]ar from developing these rather embryonic provisions of the 1929 Convention, the Diplomatic Conference of 1949 virtually paralyzed medical aviation when it subordinated all activity of medical aircraft of a Party to the conflict to a prior agreement with the adverse Party’. [Para. 2436.]
To redress the Convention’s shortcoming the Updated Commentary counsels, though thankfully does not compel, application of the Additional Protocol I medical aircraft regime (Para. 2447-50).
Humanitarian predisposition may also explain the Updated Commentary’s nearly unblinking enthusiasm for the compulsory nature of the Convention’s Article 49 penal sanctions regime. As the comment notes, States have passed numerous national laws purporting to implement the obligation to prosecute or extradite persons who have committed grave breaches of the Convention. Still the record of actual practice with respect to exercises of universal jurisdiction is far from inspiring. As the Updated Commentary itself recalls:
A Danish High Court case in 1994 is reported to be the first instance of national prosecution of perpetrators for grave breaches of the Geneva Conventions on the basis of universal jurisdiction. This led many commentators to admit that, more than 40 years after the adoption of this innovative mechanism, prosecutions of grave breaches, in particular on the basis of universal jurisdiction, were almost unheard of. [Para. 2888.]
The Updated Commentary’s most compelling evidence of the failings of Article 49 are left to a footnote:
See Frits Kalshoven: ‘Since the entry into force of the Conventions, in October 1950, little action of this type was undertaken against suspects other than a state’s nationals, and even this rarely’ (Constraints on the Waging of War, 2nd edition, ICRC, Geneva, 1991, p. 77); Geoffrey Best: ‘This noble innovation has achieved nothing’ (Best, p. 396); and the ICRC’s report to the 1999 Council of Delegates, which states: ‘[T]his system of penal repression on the national level has only rarely been applied by States. Sandoz takes the view that ‘the reality was disappointing. Many States did not fulfil their obligation to enact the “legislation necessary to provide effective penal sanctions” and the system of universal jurisdiction was never applied in practice’ (Sandoz, 2009, p. 675). Dörmann and Geiss also speak of ‘the reluctance of domestic criminal justice systems to deal with grave breaches, the absence or insufficiency of national legislation in a considerable number of states and the remarkably modest corpus of domestic jurisprudence governing these offences’ (Dörmann/Geiss, pp. 704). See also Bothe, and Ferdinandusse, pp. 738–740. [Para. 2888 n. 166.]
Given the extreme paucity of practice and implementation, a more defensible conclusion might have been to regard Article 49 as an optional provision.
In a similarly humanitarian vein of interpretation, the Article 9 comment on activities of humanitarian organizations adopts an assertive position with respect to Parties’ duty to consent to offers of humanitarian aid. Where its 1952 predecessor observed:
All these humanitarian activities are subject to one final condition – the consent of the Parties to the conflict concerned. This condition is obviously a harsh one. But one might almost say that it follows automatically. A belligerent Power can obviously not be obliged to tolerate in its territory activities of any kind by any foreign organization. That would be out of the question. The Powers do not have to give a reason for their refusals. The decision is entirely theirs. But being bound to apply the Convention, they alone must bear the responsibility if they refuse help in carrying out their engagements. p. 110.
The Updated Commentary asserts:
In particular, humanitarian law, as informed by subsequent State practice, has evolved to the point where one can conclude that consent may not be refused on arbitrary grounds. … Thus, where a Party to an international armed conflict is unwilling or unable to address those persons’ humanitarian needs, it must accept an offer of services from an impartial humanitarian organization. [Para. 1174.]
And rather than understand the Article 9 provisions concerning accommodation of humanitarian aid to call for a balance between military necessity and humanity, the Updated Commentary insists:
Military necessity is no valid ground under humanitarian law to turn down a valid offer of services or to deny in their entirety the humanitarian activities proposed by an impartial humanitarian organization. [Para. 1178.]
Perhaps the passage is not artfully worded, but military operational requirements seem an entirely legitimate consideration in a State’s determination whether and how to permit activities of a humanitarian organization. Perhaps it would have been more correct to observe that denial of aid to victims of war is not itself a military necessity in any case? Fortunately, the succeeding paragraph concedes the legitimacy of imposing control measures on humanitarian aid (para. 1179).
And a comment on the obligation to protect the wounded and sick observes:
From 1864 through 1906 and 1929 to 1949, the regime governing the wounded and sick has been consecutively revised with the declared purpose of maximizing the protection of this category of persons. Against this background, the obligation to protect the wounded and sick should be interpreted broadly to include all the forms of harm or danger described above. [Para. 1362.]
This is an eye-catching instruction on humanitarian interpretation. If the goal had truly been to maximize protection, that objective seems never to have been attained at any of those diplomatic conferences. It is perhaps not as clear as the Updated Commentary urges that the interpreter’s mandate is to achieve what the States’ representatives at these diplomatic conferences, and indeed what the ICRC itself through its participation, could not. One is left to wonder whether the cause of international law and thus humanity is better served in the long run by textual and structural fidelity rather than by well-meaning invention or innovation.