Mélange du Mercredi/ Commentary on the First Geneva Convention

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Last month saw the publication of the updated Commentary on the First Geneva Convention, now available Hardback, Paperback and eBook format from Cambridge Press. ICRC legal advisor and head of the updated Commentaries project Jean-Marie Henckaerts recently shared his experiences of working on such a colossal endeavor. 

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Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. 

This article by Jean-Marie Henckaerts was first published in the Cambridge Core blog.

Why this Book?

The original Commentaries on the Conventions date back to the 1950s and those on the Protocols were subsequently written in the 1980s. Since the original Commentaries were published, the Conventions and Protocols have been put to the test. Practice with respect to their application and interpretation has grown significantly. The new Commentaries seek to capture these developments and to reflect contemporary reality and to provide up-to-date legal interpretations.

The many wars still raging in the world all have a link to this new Commentary. To begin, most armed conflicts today are of a non-international character and these are governed by common Article 3 which is part of the First Convention.

It has been in this area that we see the biggest development in the past 60 years; something the drafters of the Conventions couldn’t have foreseen at the time. For example, we must now consider questions like what is required to trigger a non-international armed conflict as opposed to an internal disturbance? When does a non-international armed conflict start and when does it end? And what is the geographical scope of application of IHL in such a conflict? These questions are now the subject of a much more detailed analysis than in the 1950s when the original Commentaries were written.

The past few decades have also seen much more attention paid to the substantive rules in common Article 3 dealing with the prohibitions on murder, torture, mutilation and ill-treatment. All these concepts have been defined in much more detail.

Based on developments in practice, we have also added new sections on the prohibition of sexual violence, the principle of non-refoulement and compliance with common Article 3.

So the result is that we went from a 23-page Pictet commentary to a 150-page updated commentary. In the earlier commentary it was said that, for most of these acts, these terms were clear on their own and didn’t need to be defined. That is no longer tenable and today the new Commentary gives more guidance on these prohibitions.

Read the full article online here