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The ICRC Updated Commentaries: Reconciling Form and Substance, Part I

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Sean Watts’ July 5, 2016 post focuses attention on two significant documents intended to clarify “how best to read and understand the law of war” in the 21st Century: the US DoD Law of War Manual and the Updated Commentaries on the First Geneva Convention of 1949.  The DOD Manual had a long gestation, and was very much the result of the dedication and talent of one Defense Department lawyer, W. Hays Parks. I provided feedback to the US manual drafting process as early as 1994 as the result of Hays’ commitment to obtaining the different perspectives of Allied practitioners with the goal of developing a more credible and persuasive final product. I also reviewed in detail an earlier version in 2009. This openness to broader consultation has continued within DOD.  As Marty Lederman has noted, at the time of its publication DOD officials took the unprecedented and very laudable step of seeking external comment with a view to incorporating changes as necessary.

Since its release, portions of the US manual have been the subject of considerable discussion and criticism. Of note, DOD has willingly participated in many of the events focused on critiquing the Manual, in order to seek continued improvement of this important product. I, along with Professor Watts, participated in a post publication feedback session sponsored by the American Bar Association in March of this year. The need to make these types of manuals and commentaries “living” documents is directly a result of number of influences: the strategic imperative of getting this increasingly complex area of the law “right”; the substantial external interest in this area of law; the complexity of the contemporary operating environment; and the shifting international security situation.  The previous 1956 US manual remained unchanged for 60 years, seriously impacting its relevance in a rapidly changing technological and operational security environment. In the case of the DOD manual further amendments focusing on journalists were publicized on July 22, 2016.  While these changes did not respond to other areas of criticism, it appears additional amendments may be on the horizon with the DOD spokesperson indicating “another update is likely in due course”.  The distribution of these recent, and any upcoming changes are facilitated by the manual’s digital format.

While the DOD manual review is ongoing, this post looks instead at the ICRC’s update of its own six decades old work, the 1952 “Pictet” Commentaries. Like the US Government, the ICRC must be applauded for its production of the 2016 Updated Commentary on the First Geneva Convention. It is an update that has broader effect due to its handling of Articles 2 and 3, which are common to all of the 1949 Geneva Convention. It is, overall, an impressive product reflecting not only the talent and tremendous efforts of its drafters and reviewers, but also the important role that organization performs as the “guardian” of international humanitarian law. However, because both the Updated Commentaries and the DOD Manual are being published during a period of unprecedented change for international law, documents such as these need to be closely analyzed. Ultimately, a critical issue is how well documents, such as the Updated Commentaries, are capturing contemporary changes in the law, while accounting for long held legal positions. 

Like Professor Watts, I also believe one particular aspect of the Commentaries interpretation of Common Article 2 should be observed upon.  This is the suggestion that an “unconsented-to” trans-border intervention by one State into another State’s territory directed against a non-State actor (NSA) automatically creates an international armed conflict between the two States.

Asserting that an international armed conflict arises between States when an intervening threatened State is only taking action against the NSA suggests the Updated Commentaries remain overly influenced by a 20th Century perspective of armed conflict being primarily between States. It also seems invariably linked to the law governing the recourse to war, which dominated much of the legal dialogue of that century. In this respect, the Commentaries have some distance to travel before the substance of contemporary conflict with non-State actors operating from ungoverned spaces is better represented in the “form versus substance” struggle that has often plagued the contemporary debates over conflict recognition and characterization. However, from a more positive perspective, what will also be addressed is the practical approach that the Updated Commentaries has adopted towards determining when a non-international armed conflict is in existence.

What makes the ICRC non-consensual border crossing theory particularly interesting is that, as the Updated Commentaries stress (para. 211), the term “armed conflict” was adopted in the 1949 Geneva Conventions to underline “the pre-eminence of the factual existence of armed conflict over the formal status of war”. This suggests that substance is to be prioritized over form when assessing the existence of an armed conflict. However, under the ICRC “formula”, there only needs to be an “unconsented-to armed intrusion into the territorial State’s sphere of sovereignty” (para. 261) for an international armed conflict to exist. This would appear to include situations where the targeted NSA is operating from what is essentially inadequately, or even entirely “ungoverned,” territory. There is no requirement for military action to be taken, or even intended against the territorial State security forces or institutions. Rather it is suggested an international armed conflict could occur (para. 262) in respect of attacks directed exclusively against the NSA. According to the Commentary, this is because “the population and public property of the territorial State may also be present in areas where the armed group is present and some group members may also be residents or citizens of the territorial State, such that attacks against the armed group will concomitantly affect the local population and the State’s infrastructure.” A key question is whether this theory reflects an approach based more on form or substance. It appears to be more the former than the latter.

In weighing whether this interpretation of Common Article 2 prioritizes form over substance, it is telling that an international armed conflict would exist even though the application of the “population and public property” factors may be a mere possibility. That the Commentary treats as irrelevant the fact that one State is not attacking, or even intends to attack the security forces or institutions of another, and may not even affect its population or property, reinforces the conclusion that form is trumping substance.  In this instance, categorization is fundamentally based on a non-consensual crossing a territorial line rather than an assessment of what actually happens, or why.  Adding to the sense of formalism is the suggestion (para. 261) that finding there is an inter-State conflict does “not exclude the existence of a parallel non-international armed conflict between the intervening State and the armed group.” In other words, the substantive uses of force are considered under a completely different category of conflict.

Significantly this theory is set out under the heading “The Relevance of Consent to the Existence of an International Armed Conflict”.  The Updated Commentaries view consent as “essential”  and determinative of whether the conflict is international or non-international (para. 260). It outlines the necessity of consent being valid, free from coercion, and authorities being entitled to give or withdraw consent.  However, importantly it does not ask whether the State authorities actually govern the territory about which that consent is being given, or withheld. Substantively, consent should be meaningful in that it is linked to effective control actually being exercised by the government involved.  One simply has to recall the period when President Hamid Karzai was dismissed as the “Mayor of Kabul” because of the limited territory his government actually controlled in Afghanistan.  Similarly, restricted geographical control continues to be evident with the Somali Federal Government. As Brian Egan, the U.S. State Legal Advisor, noted in an April 1, 2016 speech before the American Society of International Law:

the concept of consent can pose challenges in a world in which governments are rapidly changing, or have lost control of significant parts of their territory, or have shown no desire to address the threat.

What is the significance of “consent” if it is substantively has no meaning?  It does represent an acknowledgement of the sanctity of our State based system of international law, although at some point it also takes on the aura of a simple adherence to form. These are questions that we will explore in a subsequent post on this topic.

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About the Author

is Brigadier-General (Ret’d), Canadian Forces, QC. He served four years as the Judge Advocate General, and is the author of Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict.