Letter to the Editor: Status of the ICRC Commentaries

In articles posted on successive days, Professor Goodman & Ms Knuckey write ‘one news report incorrectly discounts the importance of the ICRC Commentaries on this provision, describing them as “a kind of explanatory gloss”’, while Professor Watts writes that it ‘is no wonder the U.S. Supreme Court mistakes Pictet’s Commentary as “the official commentary to the [Geneva] Conventions” (see n.48), despite the authors’ disclaimer to the contrary’.

This leads one to ask, what is the status of the commentaries to the 1949 Conventions and the Protocols?

There are three different sets of commentaries. There are the four commentaries on the Geneva Conventions of 1949, published between 1952 to 1960 under the editorship of Pictet. The second set of commentaries relate to Additional Protocol I and II of 1977, published in 1987 under the editorship of Sandoz, Swinarksi and Zimmerman. Finally, there is the commentary to Additional Protocol III of 2005 by Quéguiner in 2007. Of note, there is also a project underway to update the commentaries.

That the ICRC Commentaries are important can be seen from the fact that they have been referred to by justices of the International Court of Justice (for example,  Judge Simma in Congo v Uganda and Judge Higgins in the Palestinian Wall case) and, among others, by judges of the International Criminal Court, International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda on numerous occasions. But where do the ICRC Commentaries fit in to the scheme of international law?

Article 38 of the Statute of the International Court of Justice deals with the sources of international law (or more strictly, what the court shall apply when deciding international disputes). The four sources are treaties, customary international law, general principles of law, and judicial decisions and the teachings of the most highly qualified publicists (as a subsidiary means for the determination of rules of law).

The teachings of the most highly qualified publicists are a means for determining what is customary international law or what are general principles of law (see the US Supreme Court case of The Paquete Habana 175 U.S. 677 (1900) at p. 700) — they are not a means for determining the correct interpretation of treaties. Evidently then, as commentaries on treaty provisions, the ICRC Commentaries are not a source of law nor a subsidiary means for the determination of rules of law. Rather, the Commentaries assist with determining the correct interpretation of a treaty provision. Article 32 of the Vienna Convention on the Law of Treaties 1969 (and, I suggest, customary international law) permits recourse to supplementary material (including the preparatory work of the treaty and the circumstances of its conclusion) in treaty interpretation when the usual rules of interpretation would result in a meaning that is ambiguous or obscure; or which is manifestly absurd or unreasonable. And in this respect, the ICRC Commentaries are a convenient way to review relevant supplementary material concerning the four Conventions and three Protocols.

It is important to distinguish between a work that can be referred to as an authority on a particular point and something that is authorative on the point. A work that is an authority is a work that is to be taken seriously. An authorative work is a work that is determinative of the issue. When analysed in these terms, the ICRC Commentaries are an authority but not authoritative on the interpretation of the Conventions and Protocols — see Judge Kooijmans in the Palestinian Wall Case, who when discussing the interpretation of common article 1 of the 1949 Geneva Conventions, stated at paragraph 48: ‘the ICRC in its (non-authoritative) commentaries on the 1949 Convention …’.

So in the end, I suggest a middle ground where the ICRC Commentaries are highly persuasive but not determinative sources for assisting courts (and States) when interpretating the Conventions and Protocols pursuant to the Vienna Convention on the Law of Treaties 1969 and customary international law.

– Ian Henderson, Director of the Military Law Centre, Australian Defense Force

Ian Henderson is the Director of the Military Law Centre, Australian Defence Force. He has served as a legal officer in the Royal Australian Air Force since 1990. This note was written in his personal capacity and does not necessarily represent the views of the Australian Department of Defence or the Australian Defence Force. 

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