In the second installment of episode 1 in this multi-blog series on the updated Commentaries, Professor Sean Murphy responds to Jean-Marie Henckaerts first post on locating the commentaries in the international legal landscape.
Sean D. Murphy, Professor of International Law at George Washington University and Member of the U.N. International Law Commission, considers the role of the ICRC commentaries as a matter of treaty law, customary international law, and practical lawyering.
Joint Series Episode I, Part II
As a young lawyer in the U.S. Department of State assigned to handle politico-military affairs during the U.S. intervention in Panama in 1989 and the First Gulf War in 1990-91, I was often called upon to provide advice with respect to the laws of war, including international humanitarian law. In doing so, the first book off the shelf was Roberts and Guelff’s Documents on the Laws of War, so as to consider the treaty rules by which the United States was bound. The second work off the shelf was typically Jean Pictet’s four-volume commentaries on the four 1949 Conventions, an insightful, albeit already somewhat dated, analysis of those treaties with a particular eye on their negotiating history.
Being a relative novice to the field, I doubt I asked why the Pictet commentaries, published from 1952 to 1959, were relevant; they happened to be at hand, they seemed well-crafted, and time was short to advise policy-makers on breaking developments with respect to treatment of prisoners, occupation of territory, and other matters.
Decades later, the Pictet commentaries remain of continuing value, yet are now even more dated. As such, one can only welcome the ICRC’s project to provide new commentaries on the 1949 Geneva Conventions, which will be followed in due course by new commentaries on the two Additional Protocols of 1977. At first glance, the commentary on the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field might seem of lesser significance, since it is the Third and Fourth Geneva Conventions that command the greatest attention. But given that this new commentary addresses articles common to all four conventions, there is ample information and analysis in it to excite the scholar and practitioner alike. And certainly such efforts are in accord with the mandate set forth in the Statutes of the International Red Cross and Red Crescent Movement, in Article 5(2)(g), for the ICRC “to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof.”
Even so, the question remains: What role, exactly, do such commentaries play for international law? As Jean-Marie Henckaerts reminds us, rules of international law “develop through the adoption of treaties or through the formation of customary rules based on State practice and opinio juris.” It is in those domains of law that such a question might initially be answered.
First, the ICRC commentaries play a role with respect to treaty law. The commentaries themselves do not have the status of a treaty nor, as Henckaerts notes, can they amend treaties, including the Geneva Conventions and their Additional Protocols. They are not the “context” of a treaty, as meant in Article 31(1) of the 1969 Vienna Convention on the Law of Treaties, nor do they directly reveal the object and purpose of a treaty. Further, they are not “subsequent agreements” or “subsequent practice” establishing the treaty parties’ interpretation of the treaty, for the ICRC is not a party to these conventions. Indeed, States Parties to the conventions at times have reaffirmed their primary role in the development of international humanitarian law, such as in Resolution 1 of the 31st Red Cross and Red Crescent Conference of 2011 (while recalling “the important roles of the ICRC”, States Parties “emphasiz[ed] the primary role of States in the development of international humanitarian law”). Even so, as a current project before U.N. International Law Commission indicates, in Draft Conclusion 5(2), a statement by an actor such as the ICRC “may, however, be relevant when assessing the subsequent practice of parties to a treaty,” for it may serve as an important compilation of subsequent agreements or subsequent practice of Parties in interpreting the treaty, and may prompt reactions by Parties that constitute such agreements or practice.
Second, the ICRC commentaries play a role with respect to customary international law. The commentaries are not themselves “practice” that directly contributes to the creation of customary international law, for non-State actors are not viewed as having such a role. Even so, the commentaries no doubt will play an important indirect role in identifying customary international law, either by providing a very high quality survey of State practice accepted as law (opinio juris) or by stimulating reactions from States (either in agreement or disagreement) which in turn reveals State practice accepted as law. Indeed, in the context of the U.N. International Law Commission’s topic on identification of customary international law, the Special Rapporteur has suggested that official statements of the ICRC, such as appeals and memoranda on respect for international humanitarian law, play an important role in shaping the practice of States though reactions to such statements; and publications of the ICRC may serve as helpful records of relevant practice.
In addition to potential roles with respect to sources of law, the ICRC commentaries should be seen as falling within a subsidiary source of international law: the “teachings of the most highly qualified publicists.” Aside from the talented ICRC lawyers working on the project in Geneva, various highly-regarded external contributors and editors are assisting in the project, and such collaboration brings to it a world-wide expertise. This role strongly complements other scholarly efforts, such as the 2015 Oxford Commentary on the 1949 Geneva Conventions.
The precise status of the ICRC commentaries for international law will no doubt be addressed in particular contexts, perhaps even in litigation before international or national courts, and certainly in scholarly commentary. But their most enduring significance may be less in their formal status and more in the fact that – in the heat of the moment – the ICRC commentaries may be one of the first things “off the shelf” (now off the Internet!) for practitioners in the field, when seeking to understand and uphold the complex web of rules that comprise international humanitarian law.
For more on the multi-blog series, click here.
Other posts in this series:
Locating the Geneva Conventions Commentaries in the International Legal Landscape - Jean-Marie Henckaerts, head of unit in charge of the update of the ICRC Commentaries on the Geneva Conventions of 1949 and their Additional Protocols of 1977
First Thoughts from Academia on the Updated GCI Commentary - Kevin Jon Heller, Professor of Criminal Law, SOAS, University of London, Principal Fellow, Melbourne Law School, Academic Member, Doughty Street Chambers, and blogs regularly at Opinio Juris