New Developments in ICRC Commentaries to the POW Convention

On Tuesday, June 16 the International Committee of the Red Cross (ICRC) launched its updated Commentary to the Geneva Convention III Relative to the Treatment of Prisoners of War (GC III). In collaboration with the ICRC and EJIL: Talk, Just Security will publish pieces analyzing the new Commentaries and we invite submissions from experts.

The new document is part of the ICRC’s ongoing, multiyear project of updating the Commentaries to the Geneva Conventions and Additional Protocols, and this is the third updated commentary out of a series of six. This article summarizes the statements made during the launch event with a special focus on changes reflected in the Commentaries (compared to the earlier version of 1960) as identified by the speakers.

The launch was in the form of a webinar and the speakers were from the practice and academia. The panel included Jean-Marie Henckaerts, the head of the project of updating the Geneva Conventions Commentaries; Marco Sassòli, who served as a member of the editorial committee of the GC III Commentary; Brig. Lisa Ferri, Director of Defence Legal Services of the New Zealand Defence Forces; Helena Sunnegårdh, the legal adviser of the Swedish Red Cross who served as peer review for the updated Commentary; and Maj. Gen. Nilendra Kumar, former Judge Advocate General of the Indian Armed Forces, who also served as peer review of the updated Commentary. The speakers, all international humanitarian law experts, discussed some of the new aspects included in the document.

As Helen Durham, the moderator of the webinar, explained, the Geneva Conventions were adopted over 70 years ago, and since their adoption, they continued to serve as the bedrock of international humanitarian law. All of the four Geneva Conventions serves as the basic principle for humane treatment of persons. The first GC III commentary by Jean Pictet was published in 1960. However, since then there have been developments in international humanitarian law and its interpretation. What’s more, today’s armed conflicts are more dynamic than some in the past. Different technologies are used, such as drones; child soldiers are more common, suicide bombers, etc. — all these changes and developments in the practice of armed conflicts are addressed in the new Commentary explained Maj. Gen. Kumar. Henckaerts explained that the updated commentary reflects subsequent development in the law and practice. It reflects operational experience from the past 70 years and it has been peer-reviewed by 50 professionals, from 30 different countries, and reflects an attempt to provide the most reliable and complete interpretation of the law at the moment.

The ICRC took under consideration when updating the commentary the developments in the law, reflected in new treaties, new standards, the national and international case law of courts and international tribunals, as well as postwar tribunals such as the Eritrea-Ethiopia Claims Commission. The updated commentary took into consideration general international law rules such as rules on state responsibility, human rights, and criminal law. In addition, developments in standards of medical ethics, persons with disabilities including mental health, and privacy were taken into consideration. As Henckaerts explained, all of these developments had to be taken into consideration as “treaties age” and they have to be interpreted in accordance with the changes that occurred. Henckaerts than added that the process of updating the GC III Commentary followed the rules of treaty interpretation, just as any other treaty. The interpretation is in good faith, according to the ordinary meaning when the treaty was conducted in light of the object and purposes of the treaty. In addition, the developments of the law as subsequent practice, and other relevant rules are also taken into account said Henckaerts.

Developments in Technology

When the Commentary of 1960 was drafted, the telegram was a primary means of communication for prisoners of war (POW) with their families and home countries. Yet, such a device is very rare and is hard to find these days. New technological developments, such as email, can replace the telegram as a means for communication such that the updated commentary addresses them. However, the fact that email communication can replace the telegram does not pose an obligation upon the detaining power, as Sassòli stressed, to provide unlimited access for a POW to emails. By way of example, the POW can give the detaining power the message and it can transmit the communication via email. This was but one example of how technological change is integrated into the 2020 Commentaries.

Developments in Treatment of POW

International humanitarian law recognizes that different people might be entitled to different treatment, explained Sunnegårdh. GC III has specific provisions that address the needs of different persons, such as women and children, in armed conflict. The recognition that women should be treated with special care is important due to the rise of women participating in armed conflict, Sunnegårdh said. GC III distinguishes the needs of different groups in accord with their vulnerabilities. The updated Commentary addresses these vulnerabilities following the developments of the law in different fields.

The understanding regarding the treatment of people with disabilities has changed significantly since the GC III was adopted in 1949. Today, since the Convention on the Rights of Persons with Disabilities was adopted with explicit application to armed conflict, its rules and regulation are part of the way POWs should be treated humanely, and inform the interpretation of the provisions of GC III in the updated Commentary. Accordingly, not only the needs of those with physical disabilities shall be addressed but also those with mental disabilities. The updated Commentary reflects a change in common beliefs about the treatment of persons with mental disabilities. If in the past it was thought that they should be separated, today the treatment of persons with mental disabilities includes integrating them with the general population as much as possible, while making sure that their particular needs are taken into account.

The updated Commentary addresses changes in understanding regarding the needs of persons arising from gender, age, and social and cultural background. Although many of the Geneva Conventions rules are gender neutral, do not facially include or exclude anyone, they can nevertheless have a discriminatory effect when applied in an unequal setting, remarked Sunnegårdh. In the new Commentary, the interpretation of humane treatment explains that the kind of treatment will be context-dependent and in accordance with a wide range of factors such as cultural and religious backgrounds and prisoners’ gender. Similarly, under the updated Commentary, these factors will also be taken into consideration when assessing the lawfulness of interrogation and the interpretation of what constitutes humiliating treatment. Sunnegårdh said that even though some methods will be considered humiliating and unlawful in any situation, these factors are additional considerations.

Although GC III does not provide special protection for children, the text does not expressly address the issue of child soldiers. However, the updated Commentary does address child soldiers since they too have special vulnerabilities. The updated Commentary indicates the special educational and recreational needs of children who are under the status of POWs, as well as the different approaches the justice system should take. Similarly, GC III is silent regarding LGBTQ rights. However under the updated Commentary, when interpreting the law their particular needs should be taken into account Sunnegårdh explained.

POW Human Rights

International human rights law has developed significantly since 1949 and informs the interpretation of how prisoners of war should be treated. Sassòli explained that POWs have human rights, as well as their rights under GC III since they are under the direct control of the detaining power. Another way of framing the issue, as put forward by Sassòli, is that since GC III demands that prisoners of war be treated the same as soldiers of the detaining power (an “assimilation” principle), it is important to note that the soldiers of the detaining power receive the protections of human rights law. In short, international human rights law can complement how POWs are to be treated, which Sassòli observed is an important insight given that back in 1949 protections accorded POWs appeared to be the high watermark. Since then, human rights law has become an important element as well.

[Readers may also be interested in Jean-Marie Henckaerts, “Commentary: ICRC unveils first update in sixty years.” His piece commences a series of posts on the GC III Commentary, which will be run in collaboration with the ICRC, EJIL Talk and Just Security.]

Photo credit: Injured Iraqis classified as enemy prisoners of war walk into a medevac helicopter as they are transferred from the 28th Combat Support Hospital to Camp Cropper, a prison camp at the Saddam International Airport in Baghdad. (Stan Honda/AFP via Getty Images)

 

About the Author(s)

Eden Lapidor

Just Security Junior Fellow. She holds an LLM in international legal studies from NYU School of Law. She previously served as a legal advisor to the Israeli Ministry of Foreign Affairs, and formerly clerked at the Deputy Attorney General (International Law) at the Law of Armed Conflict Unit and at the Attorney General Office.