This third post of a series on the ICRC’s Updated Commentary on the First Geneva Convention of 1949 offers some concluding observations and further comparisons with the recent DoD Law of War Manual, as well as thoughts on what each might mean for law-of-war interpretation.
Sharp debate will surely arise concerning competing conclusions from the Updated Commentary and the DoD Manual with respect to the principle of proportionality in attacks. Each offers important guidance on how proportionality applies with respect to the wounded and sick and to medical units. While the Updated Commentary concedes that neither the First Convention, nor 1977 Additional Protocol I for that matter, mentions wounded and sick or medical assets in either of its expressions of proportionality, it concludes at paragraph 1357 that:
in all circumstances, a fortiori they should also benefit from the protection accorded to civilians. In other words, if civilians are to be included in the proportionality assessment all the more so should the wounded and sick. Indeed, if the wounded and sick were not to be considered for purposes of the proportionality principle, their presence in the vicinity of legitimate military objectives would be legally irrelevant.
Whereas the DoD Manual maintains at paragraph 18.104.22.168:
The respect and protection due to the wounded, sick, and shipwrecked do not cover incidental damage or casualties due to proximity to military objectives or to a justifiable mistake. Because combatants who are wounded, sick, or shipwrecked on the battlefield are deemed to have accepted the risk of death or further injury due to proximity to military operations, they need not be considered as incidental harm in assessing proportionality in conducting attacks.
It is difficult to imagine a more stark contrast toward the military necessity-humanity balance. Where the Updated Commentary regards persistent silence on a subject as an invitation to supplement treaty text in support of humanity, the Manual seems to accept that silence at face value, merely noting its practical consequences to the likely benefit of military necessity. Humanitarian considerations are used frequently in the law of war to resolve textual ambiguity. However, in the case of proportionality and medical units, the Updated Commentary has resorted to this supplemental interpretive approach to address silence—a silence characterized by at least one State as deliberate. Where humanitarian logic prevails under the Updated Commentary approach, it is clear that the DoD Manual gives interpretive pride of place to operational freedom in this situation of textual silence.
Further doctrinal and interpretive disagreement concerns whether the Article 15 duty to search for casualties extends under the Convention to civilians. The Updated Commentary elides the question somewhat by resorting instead to custom. Paragraph 1478 states, “[t]oday, however, the obligation to search for and collect the wounded and sick, including civilians, is part of customary international humanitarian law, applicable in both international and non-international armed conflict.”
This passage cites the DoD Manual for support. However careful examination reveals less common ground than the Updated Commentary suggests. The DoD Manual actually notes the historical fact of frequent military assistance to civilian wounded. But the Manual does not acknowledge a legal obligation in this respect. In fact, the Manual emphasizes that the Fourth Convention’s Article 16 obliges Parties merely to “facilitate the steps taken to search for the killed and wounded [civilians]” whereas the First Convention’s Article 15 states Parties “shall, without delay, take all possible measures to search for and collect the wounded and sick . . . .” (Para 7.16, n. 420).
Likewise, US military medical doctrine observes in August 2013’s Army Health System FM 4-02:
While Article 15 of the GWS requires Parties to a conflict to search for and collect the dead, wounded, and sick members of the armed forces, Article 16 of the GC states that the Parties must ‘facilitate the steps taken’ in regard to civilians. This recognizes the fact that saving civilians is the responsibility of the civilian authorities rather than of the military. The military is not required to provide injured civilians with medical care in a combat zone.
Other passages reveal further interpretive challenges faced by the Updated Commentary, which would benefit from more explicit explanation of its interpretive method. For instance, a passage concerning burial under Article 17 observes at paragraph 1643, that “[h]onourable interment is of particular importance given that, all too often, bodies are left on the battlefield. State practice confirms the obligation to ensure the actual burial or cremation of the dead.“
The passage seems contradictory. Where the first sentence describes frequent practice contrary to the Article, the second alleged prevailing State practice otherwise. An article from the International Review of the Red Cross is the source of support for the first statement, whereas the second cites to a collection of military legal manuals. Analysis of variance between doctrine and practice seems precisely the sort of work the ICRC, with its rich trove of reports, is positioned to perform. Yet the passage declines to resolve the tension between actual practice cited and professed obligation.
In his remarks at an event commemorating the release of the Updated Commentary, ICRC President Peter Maurer described his organization as “Guardian 2.0” of the Geneva Conventions. He explained the ICRC, while an active promoter of the Conventions, would not be their exclusive interpreter. Given his organization’s central role in the life of the Conventions, Maurer’s vision for Guardian 2.0, especially as manifested in the Updated Commentary is worth careful examination, not only for its substantive legal positions, but also for what their work reveals about how to read the Conventions—what counts and does not count as principled interpretation. Whether interpretation should involve actively progressive interpretation or cautious respect for the Conventions’ persistent silences and ambiguities is still unclear. For its part, and perhaps consistent with its pluralistic formation, the Updated Commentary’s vision of a more perfect First Convention seems to borrow a bit of both approaches, putting increasingly finer points on positions initially sketched out to secure general consensus in some cases, while acknowledging ambiguity and silence with respect to others.
It is too soon to tell whether the Updated Commentary and DoD Manual will live up the legacies of their predecessors. An early military legal commenter on the US’s 1956 Law of Land Warfare Manual also remarked on the contemporaneous Geneva Conventions. He characterized the Conventions, despite their relative prolixity, as a form of delegation to military commanders. This lawyer pondered:
An observer of the laws of war may be troubled by their ambiguity and incompleteness. He may wonder also how provisions drafted in the light of 18th and 19th century warfare can be appropriate in a nuclear-missile war, for some prohibitions of 1907 vintage now seem ludicrous . . . . He fails to realize that sometimes the ambiguities were designed . . . . An ambiguity, it should be understood, results in a delegation of discretion to the commander in the field, which he shall exercise unless a more precise mandate is preconceived and becomes part of the commander’s instructions.
State practice has doubtless altered the bargains reflected in those Conventions. Which of States’ delegations to law and to commanders have been retained and which revoked remains a vexing question in the uncertain realm of subsequent practice. Secondary sources such as the Updated Commentary and the Manual surely play accepted and important roles in sorting the state of the law of war. This series of posts has identified a number of significant variances between the substantive their conclusions. And forthcoming Commentaries on the other Conventions and their Protocols will likely produce more. But precisely how these sources go about that sorting is as important as the more eye-catching substantive developments showcased by each. Whether resolution of or fidelity to legal ambiguities will lead to a more perfect law of war seems just one of many compelling questions posed by these two long-awaited and daunting works.