Since their adoption in 1949, the Geneva Conventions have been put to the test and there have been significant developments in how they are applied and interpreted in practice. In order to trace these developments and provide up-to-date interpretations, the ICRC and a team of experts embarked on a major project to update the Commentaries on the Conventions. The first instalment of this ambitious project is now available: the updated Commentary on the First Convention.
The ICRC has unveiled a major new guidance on the implementation of the Geneva Conventions, bolstering arguments that, despite violations, the laws governing armed conflict remain relevant, are crucial to saving lives and must not be abandoned.
The new commentaries draw on the last 60 years of practice and interpretation of these treaties to reflect the contemporary legal reality. “They are meant to be a practical tool for military and government lawyers and courts and can assist those who will need to apply the Conventions in the future,” explains Jean-Marie Henckaerts, who heads the commentaries project.
The ICRC strongly believes that coherent interpretation of the law enhances respect for it. The updated Commentary on the First Geneva Convention (GCI), which was released on 22 March 2016, provides concrete guidance on issues such as the obligation to respect and protect the wounded and sick, as well as the medical personnel caring for them. They devote considerable attention to non-international conflicts, which form the bulk of today’s wars. The prohibition on sexual violence and the principle of non-refoulement, i.e. the prohibition on sending people back to countries where their lives might be endangered, are also clarified in this new Commentary.
Importantly, the updated Commentaries cannot be the final interpretation of the Geneva Conventions; instead, they provide a picture of how the law is interpreted today, but they should also be seen as an opportunity to further efforts to clarify the law.
The ICRC’s director of International Law and Policy, Helen Durham, said that while it was “becoming fashionable to talk about the erosion of international humanitarian law” of which the Conventions form the core, the new Commentary, “shows that this is a living body of law, which, far from being eroded, is playing a vital role.”
“Even in the conflict in Syria, where we have seen large-scale violations of international humanitarian law, the law of armed conflict is still crucially important to saving lives. The fact that we have been able to gain access across front lines to deliver medical care and relief to the millions of people caught in the crossfire is a reflection of this.”
“Yes, there is a big gap between the law on paper and its implementation” she continued, “but that can never be an argument for saying the Conventions are no longer relevant, despite the key role they are fulfilling”. At the launch of the new Commentary ICRC President Peter Maurer insisted that “the Geneva Conventions are not just some historical documents born of another time, they are of burning relevance and importance today – and we need to ensure that their enormous humanitarian potential is recognized and acted upon by all.”
“It is precisely because the law has never been stronger, that we are more sensitive to violations and transgressions, and rightly so. […] The Geneva Conventions are living instruments and we need to make sure that the law remains relevant, by ensuring that our interpretations are up-to-date and applied in today’s armed conflict.”
– Peter Maurer, President of ICRC
- June 29, 2016, Episode I, Part I (Humanitarian Law & Policy): Locating the Geneva Conventions Commentaries in the international legal landscape – Jean-Marie Henckaerts, head of the Commentaries update project.
- July 6, 2016, Episode I, Part II (Intercross): The role of the ICRC Commentaries in understanding international humanitarian law – Sean D. Murphy, Professor of International Law at George Washington University and Member of the U.N. International Law Commission.
- July 22, 2016 (Opinio Juris): First Thoughts from Academia on the Updated GCI Commentary – Kevin Jon Heller, Professor of Criminal Law at the University of London.
J.-M. Henckaerts (2012). “Bringing the Commentaries on the Geneva Conventions and their Additional Protocols into the twenty-first century“, International Review of the Red Cross, Vol. 94, No. 888. (.pdf)