The updated Commentary on the Third Geneva Convention is the first article-by-article commentary on the Third Convention since 1958. The Commentary strengthens the practical relevance of the rules of treatment of prisoners of war. It highlights the importance of respecting life and dignity of an individual by obliging parties to an armed conflict to afford humane treatment to prisoners of war. The Commentary reflects practice, changes in technology, and legal scholarship in the past 60 years and identifies instances where the updated technology informs the interpretation of provisions.
As the updated Commentary is launched online on 16 June, the ICRC New Delhi Blog spoke to Maj Gen Nilendra Kumar about the relevance of this tool as well as his experience as one of the peer reviewers – the only one from India. Maj Gen Kumar is Former Judge Advocate General of the Indian Armed Forces, visiting faculty member at the Peking University School of Transnational Law and at the National Law Institute University.
In your view, which are the three most important topics in the updated commentary?
According to me, the following are the most significant ones:
a. Religious and intellectual personnel together with the issue concerning radicalisation (Article 34- 37)
b. Questioning of prisoners and their property (Article 17 and 18)
c. Use of weapons (Article 42)
What are the reasons for the process of updating the commentary and why is it needed?
Law is not static or dormant. The facts, interpretation, and applications of law change with the passage of time. This is what makes regular revision of the commentary relevant. It brings out narration and details of new experiences that need to be assessed on the touchstone of the IHL. To that extent, it keeps the commentary updated and relevant in the changed circumstances. The process of updating is based on comments and inputs from different experts based within and beyond the ICRC, together with the rulings of the tribunals and the ICC.
How was your experience as one of the peer reviewers – the only one from India?
It was an interesting and exciting experience. To begin with, there was a sense of nervousness and uncertainty. This was due to the ignorance about who the other peers were. Also, an idea often crossed my mind if my comments would be pitted and evaluated against those of unknown reputed authors and academics. As the work progressed, one came to admire the professionalism, deep knowledge and approach of the ICRC project team. They were understanding, considerate, and meticulous. The timelines indicated for the project were reasonable.
In what way can the updated commentary be promoted?
A certain number of hard copies should be available, particularly for use by senior commanders, legal advisors, policymakers, and academics – who are elderly and may not be IT-savvy. Manuals and handbooks ought to be published in India. Maybe a pool of retired personnel, with technical assistance of the ICRC regional delegation in New Delhi, could help in the preparation of a draft. The same could then be circulated after annexing the comments of the services.
There exists a need to design war games to disseminate adherence and compliance of the IHL. The target audience will be different stakeholders and segments – like commanders at different levels, medical and religious personnel, media, military police, etc. The Geneva Conventions and its commentaries ought to be woven together. I have already commenced work in this area. Once completed, it will help in greater understanding and application of the commentaries.
The commentary is the key to the Convention. It is the prisoners only hope for a humane treatment. It is also an important document to reiterate the obligations imposed on the authorities under the Geneva Convention III.