Treaty Interpretation in the Fog of War

doi:10.1017/9781009599122.011

6 - Treaty Interpretation in the Fog of War

The Evolution of the ICRC’s Methodology

from Part II - Unity, Diversity, and Evolution of Interpretation of International Law across Actors

Published online by Cambridge University Press: aN Invalid Date NaN

Ellen Policinski

Edited by

Sotirios Ioannis Lekkas ,

Nina Mileva and

Panos Merkouris

Edited in association with

Ivo Tarik de Vries-Zou

Show author details

Sotirios Ioannis Lekkas: Affiliation:
University of Sheffield
Nina Mileva: Affiliation:
University of Groningen
Panos Merkouris: Affiliation:
University of Groningen
Ivo Tarik de Vries-Zou: Affiliation:
University of Goningen

Book contents

Summary

The International Committee of the Red Cross (ICRC) is the guardian of international law. Therefore, the Commentaries to the Geneva Conventions produced by the ICRC present an authoritative guidance on how these treaties are to be interpreted. In this sense, the ICRC represents an actor whose interpretation is authoritative on its substantive merit. A study of the interpretative methodology behind the Commentaries of the ICRC reveals that although the methodology has evolved it has done so apace with the evolution of the rules of treaty interpretation in general public international law – culminating in the adoption of the VCLT. This is argued to be decisive proof that the rules of international humanitarian law are subject to the same interpretive rules as other international rules.

Keywords

International Committee of the Red Cross customary international humanitarian law treaty interpretation

Information

Type: Chapter
Information: The Practice of Interpretation in International Law
Unity, Diversity, and Evolution
, pp. 115 - 141

DOI: https://doi.org/10.1017/9781009599122.011 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2026
Creative Commons: This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC-ND 4.0 https://creativecommons.org/cclicenses/

6 Treaty Interpretation in the Fog of War The Evolution of the ICRC’s Methodology

6.1 Introduction

International humanitarian law (IHL) is the body of law designed to apply in the most extreme circumstances and yet it is subject to the same public international law norms as other bodies of international law: its sources are those listed in Article 38 of the ICJ Statute; it is adjudicated by international and domestic tribunals; and, importantly for the purposes of this chapter, IHL treaties are subject to the same rules of interpretation embodied in the 1969 Vienna Convention on the Law of Treaties (VCLT).Footnote ¹ This has been shown time and again by the practice of StatesFootnote ² and international bodies,Footnote ³ as well as in decisions of international tribunals.Footnote ⁴ It is also widely supported in the legal scholarship.Footnote ⁵ However, as this chapter will discuss, IHL treaties do have some specificities that affect how they are interpreted, one of which is that IHL has a ‘guardian’, the International Committee of the Red Cross (ICRC).

Before delving into how the rules of treaty interpretation apply to IHL treaties, this chapter will explore the ICRC’s role as the guardian of IHL, which gives the organization unique insights into how this body of law, and in particular its core treaties, the Geneva Conventions and their Additional Protocols,Footnote ⁶ are interpreted and applied. It will then zoom in on the ICRC’s legal Commentaries as one tool through which the organization has historically provided extensive guidance on interpreting the Geneva Conventions. Looking at the shifts in methodology behind these Commentaries over time gives important clues as to how IHL treaties have been interpreted over time. Although the Commentaries’ interpretive methodology has evolved, it has done so apace with the evolution of the rules of treaty interpretation in general public international law – culminating in the adoption of the VCLT. The chapter will close by giving examples of how the VCLT methodology is used in the current project to update the ICRC Commentaries and examining some of the particularities of IHL treaties that impact how the VCLT rules are applied.

6.2 Born on the Battlefield: IHL and Its Guardian

In the words of International Law Commission (ILC) Special Rapporteur Georg Nolte, ‘The role which ICRC assumes with regard to the Geneva Conventions for the protection of war victims and their Additional Protocols is a case apart.’Footnote ⁷ The ICRC has been involved in developing, codifying and clarifying IHL,Footnote ⁸ giving it unique insights that are invaluable in the related but distinct work of providing guidance on how to interpret those norms. The ICRC acts as the guardian of IHL in part because of their shared origins and history.Footnote ⁹ The ICRC’s special role as guardian of IHL, most clearly laid out in the Statutes of the International Red Cross and Red Crescent Movement,Footnote ¹⁰ is also partially explained by its consistent response to humanitarian needs on the battlefield, which serves as a foundation for its advocacy for better respect for legal protections and new protections where existing law is not sufficient.Footnote ¹¹

The ICRC undertakes ‘to work for the faithful application of international humanitarian law applicable in armed conflicts … [and] to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof’.Footnote ¹² Because of its role as guardian, the ICRC is an authority that States and scholars often turn to for guidance on how to interpret and apply IHL and an actor with which States actively engage on whether they agree or disagree with the its positions.Footnote ¹³ Indeed, the ICRC’s history is so intertwined with the history of modern IHL and especially its core treaties, the Geneva Conventions and their Additional Protocols, that one might say the organization was “born” to play this role.

The birth of modern IHL and the birth of the ICRC are both commonly traced back to the battlefield at Solferino in 1859, where Swiss businessman Henry Dunant witnessed the battle and saw the townspeople of nearby Castiglione, in particular the women, organizing to collect and care for the wounded soldiers from both sides without distinction.Footnote ¹⁴ Dunant joined in their efforts along with several other bystanders. He described the scene of the battle and the efforts to treat the wounded that followed in vivid detail in his 1862 book, A Memory of Solferino. He made two important proposals in the book: (1) that in every country societies be established – already in peacetime – for the assistance of wounded and sick soldiers (which was at the origin of the ICRC and the wider International Red Cross and Red Crescent Movement) and (2) that internationally agreed rules be laid out to protect the wounded and sick and those who cared for them (which was at the origin of the 1864 Geneva Convention, and its subsequent iterations).Footnote ¹⁵

The ICRC, established in 1863, lobbied for the 1864 Geneva Convention and was present on the battlefield to observe how the law has been interpreted by States since its first application in the 1870–71 Franco-Prussian war.Footnote ¹⁶ Over time, its role in working to ensure respect for IHL was firmly established.Footnote ¹⁷ Because of the important work of the organization, the 1949 Geneva Conventions explicitly provided a role for the ICRC as a neutral intermediary and humanitarian actor, further cementing its special relationship with IHL.Footnote ¹⁸ These Conventions and their Additional Protocols are the core IHL treaties, but other treaties also contain IHL norms, for example, treaties regulating weapons.

Separate from its work in developing the law, the ICRC is uniquely placed to provide insights into how the law has been (and should be) interpreted and applied. It is constantly engaged in interpreting IHL. Indeed, the organization cannot fulfil its humanitarian mission without interpreting IHL treaties, which is ‘at the heart of the ICRC’s daily work’.Footnote ¹⁹ One way the ICRC does this is in providing guidance on how to best interpret and apply IHL norms.

The ICRC has produced numerous interpretive guides,Footnote ²⁰ fact sheets,Footnote ²¹ articlesFootnote ²² and other materialsFootnote ²³ designed to generate understanding and respect for the law, as well as facilitate its interpretation and application. It has published textbooks,Footnote ²⁴ case books,Footnote ²⁵ and a long-running academic journal (the International Review of the Red Cross)Footnote ²⁶ and has produced online databasesFootnote ²⁷ and an application for smartphones.Footnote ²⁸ Among this wealth of IHL resources, treaty commentaries are the most exhaustive interpretive tools produced by the organization.

6.3 The ICRC Commentaries as Interpretive Tools

As IHL grew through the addition of new treaties, the ICRC produced legal commentaries explaining how each provision of those treaties should be interpreted and applied. The methodology behind these commentaries evolved apace with developments in general international law governing how treaties should be interpreted.Footnote ²⁹

6.3.1 The 1870 Commentary

The first ICRC Commentary was published in 1870, just a few years after the 1864 Geneva Convention.Footnote ³⁰ It was the work of a single author, Gustave Moynier, who had been involved in the drafting of the 1864 Convention. This Commentary is based on the personal views of the author including on how the law should evolve, although it was generally framed as explaining the intent of the drafters in response to criticisms of the Convention following its first-ever application during the Franco-Prussian War.Footnote ³¹

6.3.2 The 1908 Commentary

The Geneva Convention was revised in 1906, and at first the report of the drafting committee functioned as its Commentary.Footnote ³² Two years later, the ICRC endorsed a second Commentary on the 1906 Convention by the former Secretary General of the 1906 Diplomatic Conference, Swiss law professor Ernst Röthlisberger.Footnote ³³ Similar to the 1870 Commentary, these were each the work of a single author presenting their views and framing them as an explanation of the intent of the drafters. At this point, there was even less State practice to be taken into account than there had been when the 1870 Commentary to the 1864 Convention had been written, as these Conventions had not yet been applied at the time of writing the Commentary.

Although legal commentaries in general were becoming more common at this time, particularly in the German legal tradition, it was still unusual to have such detailed commentaries on international treaties.Footnote ³⁴ Providing an in-depth examination of the drafters’ intent was therefore a proactive choice made by the authors of these Commentaries in line with the contemporary trend to put a heavy emphasis on establishing the original intent of the drafters. As one tribunal put it in 1897, ‘It is the meaning of the [individuals] who framed the treaty which we are to seek, rather than some possible meaning which can be forced upon isolated words or sentences.’Footnote ³⁵

6.3.3 The 1930 Commentaries

The next revision of the Geneva Convention protecting wounded and sick soldiers on the battlefield was in 1929, which also saw the addition of a new Geneva Convention designed to protect prisoners of war.Footnote ³⁶ The 1930 Commentary on the revised Convention was drafted by ICRC member Paul Des Gouttes, who had taken part in the Diplomatic Conferences to draft the Convention and had in fact written the report of the 1929 Diplomatic Conference.Footnote ³⁷ The Commentary on the revised Convention garnered additional weight thanks to the preface authored by then-ICRC president Max Huber, emphasizing that the institution was behind the Commentary. The ICRC also endorsed a Commentary on the new Convention relative to the Treatment of Prisoners of War, which was authored by a diplomat who had participated in the 1929 Conference.Footnote ³⁸

Each of these Commentaries were the work of a single author, but the weight given to the legal interpretations therein shifted over time. The earlier Commentaries relied largely on the author’s role in the drafting of the treaty and partially from their respective reputations as prominent lawyers to being bolstered by the reputation of the ICRC as an institution, starting with the 1930 Commentaries. The emphasis remained on discovering the intent of the drafters, which around the same time Hersch Lauterpacht called ‘the main task of interpretation’.Footnote ³⁹

6.3.4 The 1952–1960 Commentaries

The current iterations of the Geneva Conventions were drafted in 1949,Footnote ⁴⁰ followed soon after by a corresponding set of Commentaries, published first in French and then in English translation between 1952 and 1960.Footnote ⁴¹ These Commentaries were the work of a team of principally ICRC staff under the direction of ICRC lawyer Jean Pictet,Footnote ⁴² which is why they are sometimes referred to as the ‘Pictet Commentaries’. Today, Jean Pictet has quite an established reputation, in part due to these Commentaries. However, at the time he was a young lawyer who was much less well-known than the authors of previous Commentaries. These Commentaries were thus even more of an ‘institutional’ product, with the emblem of the red cross featuring prominently on their original covers. The Commentaries were drafted by a team of ICRC lawyers, some of whom had participated in the negotiations of the 1949 Conventions. There was still a reliance on their having been part of the treaty negotiations and therefore able to provide insights into the intent of the drafters.Footnote ⁴³

The methodology behind the Commentaries of the 1950s and 1960s was more developed than previous Commentaries, but as mentioned above they were still focused on explaining the intent of the drafters and still drew heavily from the inside knowledge of those authors who had participated in the negotiation process. However, these Commentaries relied to a greater extent on State practice prior to the negotiation of the Conventions, notably during the Second World War, during which the authors had been ICRC delegates and therefore had experienced for themselves how the previous Geneva (and Hague) Conventions were implemented in practice.

One reason for this more developed interpretive methodology is precisely because the Commentaries were drafted by a team, and therefore written guidelines needed to be agreed to ensure consistency. These methodological guidelines emphasized the importance of tying the analysis to the history of the Geneva Conventions, the events of the Second World War necessitating addition of new provisions or the revision of existing provisions and the records of the 1949 Diplomatic Conference and other preparatory works created from 1946 to 1948. They specified that ‘although it [will be] a scientific work, the commentary must be clear and accessible to non-lawyers. The style, therefore, must be simple. It will be impersonal and if the author of the commentary has opinions to which he would like to give a more personal touch, he will mark them clearly in the margin.’Footnote ⁴⁴ This differs from previous Commentaries, where the personal views of the authors were part and parcel of the interpretive guidance presented.

During this period, efforts to codify the rules of treaty interpretation (and thus make it more scientific) were underway, most importantly the ILC project that ultimately culminated in the 1969 VCLT.Footnote ⁴⁵ In 1949, the UN Secretary General’s Survey of International Law in Relation to the Work of Codification of the ILC listed the law of treaties as a topic ripe for codification.Footnote ⁴⁶ Throughout the 1950s and 1960s, the ILC issued various reports proposing draft treaties, ultimately leading to the Vienna Conference on the Law of Treaties that took place in two sessions over 1968–69.Footnote ⁴⁷ This culminated in the 1969 VCLT.Footnote ⁴⁸ Some saw the interpretive rules contained in the VCLT as getting away from traditional interpretive approaches, which largely focused on determining the intent of the drafters.Footnote ⁴⁹ However, others argued that the VCLT should rather be seen as requiring a more scientific way of determining that intent, one that allows for interpretations to evolve over time and therefore treaties to remain fit for purpose for longer.Footnote ⁵⁰

6.3.5 The 1987 Commentary

In the time between the VCLT’s adoption in 1969 and its entry into force in 1980, IHL continued to develop and the ICRC continued to produce treaty Commentaries. In 1977, two Additional Protocols were concluded, one relating to international armed conflict and one to non-international armed conflict.Footnote ⁵¹ The Commentaries on the Additional Protocols, published in 1987, were drafted by a team of ICRC lawyers led by Claude Pilloud.Footnote ⁵² Most had been part of the ICRC delegation to the 1974–77 Diplomatic Conference and therefore based their observations on first-hand knowledge, although these Commentaries included many more footnotes to the drafting history, State practice, case law and academic scholarship than previous Commentaries.

Looking at the Commentaries produced by the ICRC before 2011, it is tempting to identify individual elements that align with the interpretive norms reflected in the 1969 VCLT.Footnote ⁵³ Indeed, the Commentary even relied on the VCLT – citing it seventy-eight times, principally on the permissibility of reservations. The VCLT was also relied upon in several instances to justify the interpretations presented.Footnote ⁵⁴ The Commentary goes so far as to observe that the drafters of the Additional Protocols relied on the status of the VCLT as customary international law.Footnote ⁵⁵ However the VCLT rules were not systematically used until the project to update the ICRC Commentaries that began in 2011. In this project, the methodology contained in Articles 31–33 of the VCLT would become the scaffolding upon which the ICRC’s next Commentaries would be built.

Although these Commentaries did not yet adopt the VCLT’s interpretive rules as a strict methodology, the foreword reveals a methodology that aims to ensure that the Commentaries were more than the personal opinions of their authors. Similar to the Commentaries drafted in the 1950s, the 1987 Commentaries were ‘essentially concerned with explaining the provisions of the 1977 Protocols, primarily on the basis of the work of the Diplomatic Conference (CDDH) and other preparatory work. The authors were guided by existing international humanitarian law, general international law and legal literature.’Footnote ⁵⁶ The authoritative weight of the Commentaries published between 1952 and 1960 as well as the 1987 Commentaries was reliant on the convincingness of their logic, the soundness of the underlying methodology and the reputation of the ICRC as an institution.Footnote ⁵⁷ This meant necessarily that there was more thought put into the methodology and less room for personal opinions.Footnote ⁵⁸

6.4 Applying the VCLT to the Geneva Conventions and Their Additional Protocols

In 2011, the ICRC began its project to update its Commentaries on the 1949 Geneva Conventions and their 1977 Additional Protocols, taking into account State practice and legal developments that have taken place in the decades since the Conventions were adopted to ensure the Commentaries are fit for purpose as an interpretive tool for practitioners in contemporary armed conflicts.Footnote ⁵⁹

There is a dedicated team of ICRC lawyers undertaking this project, authoring most of the commentaries on the articles of the Conventions and ensuring the overall coherence of the Commentaries. There are also some external contributors invited to join the project,Footnote ⁶⁰ as well as around fifty external peer reviewers from all over the world for each of the Commentaries and an editorial committee to provide guidance and support to the project team, made up of internal and external legal experts representing academics, judges and military practitioners.Footnote ⁶¹ This is a long way away from the Commentaries that were the work of a single author. The current way of working represents an openness to the views of diverse legal experts and a willingness to acknowledge alternate legal interpretations where there is no consensus.

The VCLT is relied upon as the basis for the interpretations presented in the updated Commentaries despite the fact that the VCLT was adopted twenty years after the conclusion of the 1949 Geneva Conventions, as ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.’Footnote ⁶² Since the entry into force of the VCLT, the interpretive norms contained in Articles 31–33 have crystallized into customary international law.Footnote ⁶³ It is therefore appropriate to rely on Articles 31–33 of the VCLT as a reflection of customary international law that is applicable to the interpretation of IHL treaties.

The VCLT-based methodology being used to draft the ICRC’s updated Commentaries on the 1949 Geneva Conventions and their 1977 Additional Protocols reflects the fact that IHL treaties must be interpreted according to the same rules as other treaties. While there has been some criticism of how the VCLT’s treaty interpretation has been applied,Footnote ⁶⁴ importantly there has not been any criticism of the use of that methodology, and the updated Commentaries have generally been well-received by the international legal community.Footnote ⁶⁵ Although the updated Commentaries are not always explicit about each step in the interpretive process, the interpretive rules contained in the VCLT underlie the commentary on each article. The reliance on the VCLT represents a change from the methodology used in previous ICRC Commentaries, reflecting the evolution in the general international legal discourse rather than a change specific to IHL. It is also a means of establishing the reliability and authority of the interpretations contained in the Commentaries as based on an established means of treaty interpretation, rather than the personal opinions of their authors. Ultimately, the authority of these updated Commentaries stems from the diligent research on which it is based and faithful application of the rules on treaty interpretation methodology found in the VCLT applied to each individual article in the 1949 Geneva Conventions and their 1977 Additional Protocols.

6.5 An Updated Interpretive Approach for the Updated Commentaries

The standard rules of treaty interpretation apply to IHL treaties as demonstrated through the following concrete examples from the ICRC’s updated Commentaries of how IHL is interpreted today taken from the updated Commentary on the Third Geneva Convention, the most recently published in the series. This chapter will not endeavour to give an in-depth explanation of the VCLT’s interpretive rules, which have been adequately expounded on elsewhere,Footnote ⁶⁶ but rather will look at the particularities of applying these rules to IHL treaties as seen through the lens of the ICRC’s updated Commentaries on the 1949 Geneva Conventions.

6.5.1 Good Faith and the Ordinary Meaning of the Text

The starting point is VCLT Article 31 (1), which provides that treaties must be ‘interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. This step in the interpretive process is readily apparent throughout the updated Commentaries, notably through the reliance on dictionaries to provide the ordinary meaning of terms used in the text of the treaties.Footnote ⁶⁷ To tease out an example that demonstrates this, we can look at paragraph 4 of Article 17 of the Third Convention, prohibiting physical or mental torture and ‘any other form of coercion’ to secure information from prisoners of war. The updated Commentary examines the ordinary meaning of ‘coercion’, defining ‘coerce’ as ‘means to “persuade (an unwilling person) to do something by using force or threats”’ and going on to clarify that ‘the decisive factor in determining whether coercion has occurred or is occurring is whether the method used deprives or impairs the prisoner of the exercise of free will and autonomy’.Footnote ⁶⁸

Another example of where the ICRC’s updated Commentaries on the Geneva Conventions have explicitly stated that they are relying on ‘good faith’ and ‘ordinary meaning’ aspects of Article 31 is found in Article 3 common to all four Geneva Conventions, which requires that parties to the conflict search for, collect and evacuate of the wounded and sick without delay after every engagement. Although there is no express requirement for a party to the conflict to carry out such search, collection and evacuation during an engagement, a good faith application to the rule may require it to do so where the possibility exists without great risk to its personnel.Footnote ⁶⁹

To give another example, in determining who is a civilian prisoner of war, the Detaining Power must apply the provisions of Article 4 (A)(4) and (5) ‘in good faith and in line with the rationale behind the provisions in question’.Footnote ⁷⁰

The ordinary meaning of terms in the context of the treaty is also explicitly relied upon in the analysis in the updated Commentaries, for instance, the definition of ‘convenience’ is used to clarify the meaning of ‘clean and hygienic conveniences’ under Article 29 of the Third Convention.Footnote ⁷¹ Similarly, the definition of ‘infirmary’ clarifies that Article 30 refers to ‘a place for the care of those who are ill or injured’.Footnote ⁷² In another example, the Commentary clarifies that the term ‘military operations’ in Article 75 of the Third Convention ‘must be understood in the context of the provision’, meaning that it is specific to military operations preventing the States from transporting letters, parcels and documents.Footnote ⁷³

6.5.2 Context, Subsequent Agreements, Subsequent Practice and Other Relevant Rules of International Law

For an example of how the context can inform the ordinary meaning of the text, we can look to the prohibition of murder found in common Article 3 to the four Geneva Conventions. Paragraph one of that article prohibits ‘violence to life and person, in particular murder of all kinds, mutilation, cruel treatment at torture’ in non-international armed conflict. The Commentary acknowledges that there are different possible interpretations on whether ‘murder’ in the sense of this provision includes killings that take place in the course of the conduct of hostilities.Footnote ⁷⁴ It goes on to clarify that, in the ICRC’s view,

it follows from the context of the 1949 Geneva Conventions in which common Article 3 is placed, however, that it was not intended to govern the conduct of hostilities …. The primary concern of the Conventions is the protection of the victims of international armed conflicts in the power of a Party to the conflict, but not the regulation of the conduct of hostilities as such. The same should therefore apply for common Article 3, which was adopted to extend the essence of the Conventions to non-international armed conflicts.Footnote ⁷⁵

Under VCLT Article 31 (3)(a) and (b), subsequent agreements and subsequent practice of States party to a treaty is considered together with the context. This is sometimes referred to as the ‘external’ context of the treaty.Footnote ⁷⁶ The universal character of the Geneva Conventions means that acceptance of such agreements and practice must be similarly ‘universal’.Footnote ⁷⁷ Not much can meet this high bar, although practice and agreements with less universal character may be considered as a supplementary means of interpretation under VCLT Article 32 (discussed below).

Under VCLT Article 31(3)(c), relevant rules of international law applicable in the relations between the parties are also considered as part of the ‘external’ context. There are numerous references to such rules in the updated Commentaries. To give just a few examples, the customary law norm prohibiting the arbitrary denial of humanitarian access is used to confirm the same obligation under Article 9 of the Third Convention.Footnote ⁷⁸ In a similar vein, customary international law is used to clarify that combatants captured while engaged in espionage are not entitled to prisoner of war status under Article 4 of the Third Convention.Footnote ⁷⁹ In another example, human rights norms serve as relevant rules of international law to clarify the judicial guarantees that must be provided under Article 129 of the Third Convention.Footnote ⁸⁰ Lastly, the Universal Postal Convention clarifies what exemptions from charges apply to humanitarian relief shipments sent to prisoners of war and correspondence with prisoners of war under the Third Convention.Footnote ⁸¹

6.5.3 Object and Purpose

The object and purpose of a treaty also informs the ordinary meaning of its text.Footnote ⁸² As the ICRC’s updated Commentaries conclude, ‘the balance between humanitarian considerations, on the one hand, and military necessity, on the other, is a hallmark of international humanitarian law’.Footnote ⁸³ This informs how the object and purpose of each individual IHL treaty is identified,Footnote ⁸⁴ which in turn informs how the ordinary meaning of individual provisions is determined where they are unclear. The object and purpose of the Third Convention is ‘to ensure that prisoners of war are humanely treated at all times, while allowing belligerents to intern captured enemy combatants to prevent them from returning to the battlefield’.Footnote ⁸⁵ This evidently embodies the balance between humanity and military necessity.

An example where the object and purpose of the Third Convention informs the interpretation of the text is found in the Commentary on Article 92, which governs the recapture of prisoners of war after an unsuccessful escape attempt. According to paragraph one, ‘a prisoner of war who attempts to escape and is recaptured before having made good on his escape in the sense of Article 91 shall be liable only to a disciplinary punishment in respect of this act, even if it is a repeated offence’. According to a strict reading of the text, this would appear to apply only to attempted escapees who evade the custody of the Detaining Power and not, for example, to a prisoner of war who was stopped by guards before leaving the camp. However, as the Commentary points out, ‘such an interpretation would lead to an unreasonable result (which also runs counter to the spirit of the Convention) and must be rejected’.Footnote ⁸⁶ The object and purpose thus clarifies the ordinary meaning of the provision.

6.5.4 Supplementary Means of Interpretation

Article 32 of the VCLT refers to supplementary means of interpretation that can confirm or clarify the interpretation of treaty provisions after having applied the general rule in Article 31. These include the treaty’s preparatory work, State practice that does not fall under Article 31,Footnote ⁸⁷ the circumstances of the treaty’s conclusion, judicial decisions and scholarly literature.Footnote ⁸⁸ The drafting history of the 1949 Geneva Conventions is a particularly important supplementary means of interpretation used in the updated ICRC Commentaries. In addition, the majority of State practice featured in the updated Commentaries is subsequent practice in the sense of Article 32, meaning it is subsequent practice of some States rather than practice of all States party to the Conventions.Footnote ⁸⁹

This type of practice is used by the Commentaries to clarify that there is an exception to the obligation to repatriate prisoners of war at the close of hostilities under Article 118 of the Third Convention where a prisoner refuses repatriation for fear of violation of their fundamental rights.Footnote ⁹⁰ It is also used to confirm that under Article 120 of the Third Convention the Detaining Power is ‘to ensure the actual burial or cremation of the dead’.Footnote ⁹¹

The decades between the conclusion of the treaties in question and the updated Commentaries have allowed time for States to put them into practice, giving the drafters more information to work with than their predecessors. State practice is cited throughout the Commentaries, but there are some examples that clearly show how this element operates to inform the way the provisions are interpreted. For example, the text of Article 30 of the Third Convention governing the medical attention prisoners of war are entitled to provides in paragraph one that ‘every camp shall have an adequate infirmary where prisoners of war may have the attention they require’. The Commentary clarifies that ‘mental health care is generally included in the health services required for prisoners of war; in this regard, some recent State practice (confirmed by ICRC observations) requires that on-site medical personnel have some experience in mental health, while in other contexts mental health services were provided through regular visits by specialists’.Footnote ⁹² Another example where an interpretation explicitly relies on State practice to modify the ordinary meaning of a provision is the exception to the obligation to repatriate prisoners of war after the cessation of active hostilities under Article 118 of the Third Convention. State practice and the principle of non-refoulement under international law support the interpretation that ‘while there is no explicit exception in Article 118, the obligation to repatriate must be understood as subject to an exception where the prisoners face a real risk of violation of fundamental rights by their own country’.Footnote ⁹³

6.5.5 Equally Authentic Languages

VCLT Article 33 provides that where there are authentic versions of a treaty in two or more languages, they are equally authentic unless otherwise agreed by the parties. For the four Geneva Conventions, this means that the English and French versions have equal weight, and one can be used to shed light on the meaning of the other. This could be a more complex analysis for the 1977 Additional Protocols, since they were drafted in the six official UN languages and they are all equally authentic.Footnote ⁹⁴

An example of how this operates in practice is seen with regard to Article 13 of the Third Geneva Convention, the first sentence of which requires that ‘Prisoners of war must at all times be humanely treated.’ In the updated Commentary on this article, the ordinary meaning of the word ‘humane’ is given as ‘compassionate or benevolent’, before looking to the equally authentic French text, in which the relevant term is slightly different, although not inconsistent: ‘traitées avec humanité’. Since both versions are equally authoritative, the text thus requires that ‘persons protected under Article 13 be “treated with humanity”’.Footnote ⁹⁵

Another example is found in Article 3 common to all four Geneva Conventions, where the French ‘les personnes qui ne participant pas directement aux hostilités’ is used (‘persons taking no active part in hostilities’ in the English text) to clarify that the reference to ‘active’ participation in hostilities is a reference to the concept of direct participation in hostilities (as it is phrased in API and APII).Footnote ⁹⁶ The French ‘directement’ makes it clear that ‘direct participation in hostilities’ has the same meaning as ‘active participation in hostilities’. Similarly, the French text of Article 32 of the Third Convention clarifies what is meant by the requirement that medical personnel who are retained to perform medical functions must do so on behalf of prisoners ‘dependent on the same Power.’ The French text states that medical functions must be in the interest of prisoners of war ‘dépendent de la même Puissance qu’eux-mêmes’, clarifying that medical personnel exercise their functions on behalf of prisoners of war belonging to the same Power as themselves.Footnote ⁹⁷

6.5.6 Particularities

There are two particularities of IHL as a body of law worth mentioning since they impact how the VCLT’s interpretive rules are applied: first, the erga omnes character of IHL obligations and, second, the principles of humanity and military necessity that underlie IHL as a body of law. Only this second particularity is unique to IHL as a body of law, and similar underlying principles presumably impact the interpretation of other multilateral, norm-setting treaties, such as human rights treaties. Neither of these particularities make IHL subject to special rules of interpretation, although they may impact how IHL treaties are interpreted when the rules of interpretation are applied.

The erga omnes character of IHL treaties means that all States have an interest in upholding IHL and thus that all States’ practice is relevant in interpreting IHL treaties.Footnote ⁹⁸ It also means that no State (no matter how bellicose) can claim that its practice should have more weight than that of other States. Under Common Article 1 of the 1949 Geneva Conventions, States must not only apply the provisions, but they must also do everything reasonably in their power to ensure respect for the provisions by others, demonstrating the erga omnes nature of the obligations created by these core IHL treaties.Footnote ⁹⁹

Particular to IHL is the underlying balance between military necessity and considerations of humanity. These two overarching principles form the basis for IHL, underlying all IHL treaties, as well as customary IHL norms.Footnote ¹⁰⁰ Military necessity is ‘the necessity for measures which are essential to attain the goals of war, and which are lawful in accordance with the laws and customs of war’.Footnote ¹⁰¹ In other words, it permits the use of force only insofar as it is required to achieve the legitimate aim of an armed conflict (partial or total submission of the enemy with the minimum use of time and resources).Footnote ¹⁰² The principle of humanity guards against the unlimited resort to total war by requiring that human life, health and dignity be respected in the conduct of hostilities.Footnote ¹⁰³ It ‘protects combatants from unnecessary suffering, and individuals who are no longer, or never were, active participants in hostilities by mandating that they be treated humanely at all times’.Footnote ¹⁰⁴ Rather than being opposed, these two principles act together to ‘reduce the sum total of permissible military action from that which humanitarian law does not expressly prohibit to that which is actually necessary for the accomplishment of a legitimate military purpose in the prevailing circumstances’.Footnote ¹⁰⁵

The balance between military necessity and humanity underlies all IHL norms, including those contained in the Third Convention. For example, Article 109 of the Third Geneva Convention, regarding the repatriation of prisoners of war, ‘explicitly embodies the balance that Parties to a conflict need to seek between military necessity and humanity in their decision to intern prisoners of war’, therefore prisoners of war must be repatriated when there is no longer a military necessity for interning them.Footnote ¹⁰⁶ As noted above, this balance also impacts the identification of the object and purpose of the treaty.

6.6 Conclusion

Since the first ICRC Commentary in 1870, the ICRC’s Commentaries on the core IHL treaties are an important demonstration of how IHL treaties should be interpreted in light of the contemporary legal framework. The fact that these Commentaries have consistently been based on the interpretive methodology common to all bodies of public international law is decisive proof that IHL is subject to the same interpretive rules as other bodies of law.

As the general international law discourse on treaty interpretation has become more sophisticated, so has the methodology behind the ICRC’s legal commentaries, reflecting the organization’s understanding of how international humanitarian law treaties are interpreted. Early ICRC Commentaries were presented as the work of a single author expounding on their (actually, his) opinion on how the law should be interpreted and applied, relying on their presence during the negotiations of the treaty in question.

The weight of these Commentaries was expected to come from the reputation of the author, many of whom incorporated their personal views into the text. As time went on, presenting such personal opinions became frowned upon and starting with the 1930 Commentaries the reader gets the sense that the interpretive guidance being provided is focused on the lex lata, rather than the lex feranda in the eyes of the author.

As the international legal community began to approach treaty interpretation with more scientific rigour so did the ICRC. Beginning in the 1950s, teams of legal scholars worked together to present a view of the law informed not only by the negotiations but also the humanitarian needs caused by armed conflict driving the drafters to the negotiating table. In the 1980s even more emphasis was put on convincing readers of the soundness of the interpretations presented through logic, rather than dazzling them with the reputation of the authors.

The current project to update the ICRC Commentaries on the 1949 Geneva Conventions and their 1977 Additional Protocols is using the methodology found in the interpretive rules of the VCLT. Although there are some aspects of IHL that may affect how these rules are applied, it is nevertheless undeniable that they do apply. Furthermore, it is likely that norm-setting multilateral treaties from other bodies of international law would have similar particularities.

Today, the updated Commentaries rely on the practice implementing the 1949 Geneva Conventions and their Additional Protocols, rather than practice that occurred before their conclusion. In contrast to early Commentaries, the updated Commentaries rely on extensive research and the scientific rigour of the methodology to gain the confidence of readers.

At the same time, the updated Commentaries are open to a diversity of views, indicating where there are diverging views and where the ICRC is presenting its own position in the interest of transparency. The involvement of jurists from outside the organization in the drafting process (as authors, peer reviewers and members of the Editorial Committee overseeing the work) indicates a strong desire to produce a practical tool for interpretation of the core IHL treaties that is accepted by practitioners and academics alike.

Footnotes

¹ Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT). The treaty interpretation rules enshrined in the VCLT are today generally recognized as being customary in nature. See Award in Arbitration Regarding the Iron Rhine Railway Between the Kingdom of Belgium and the Kingdom of the Netherlands (Decision of 24 May 2005) 27 RIAA 35, 62; Territorial Dispute (Libyan Arab Jamahiriya v Chad) (Judgment) [1994] ICJ Rep 6 [41]; Kasikili/Sedudu Island (Botswana/Namibia) (Judgment) [1999] ICJ Rep 1045 [18]; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43 [160]; Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v Colombia) (Preliminary Objections) [2016] ICJ Rep 100 [33]; ILC, ‘Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, with Commentaries’ (30 April–1 June and 2 July–10 August 2018) UN Doc A/73/10, reproduced in [2018/II – Part Two] YBILC 16, 26 (Draft Conclusions on Subsequent Practice). See also R Gardiner, Treaty Interpretation (Oxford University Press 2008) 162–63; A Aust, Modern Treaty Law and Practice (3rd edn, Cambridge University Press 2013) 207.

² See e.g. Arrangement for the Transfer of Enemy Prisoners of War and Civilian Internees from the Custody of the British Forces to the Custody of the American Forces (31 January 1991) reproduced in P Rowe (ed), The Gulf War 1990–91 in International and English Law (Routledge 1993) Appendix I, 348–49; Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia (27 November 1991) reproduced in M Mercier, Crimes without Punishment: Humanitarian Action in Former Yugoslavia (East Haven 1996) Appendix, Document IV, 196–98; Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines (16 March 1998); Memorandum of Understanding between the Ministry of Defence of the Islamic Republic of Afghanistan and the Ministry of Defence of the Kingdom of Denmark concerning the Transfer of persons between the Danish Contingent of the International Security Assistance Force (ISAF) and Afghan authorities (8 June 2005, as amended on 1 May 2007); Arrangement for the Transfer of Detainees between the Government of Canada and the Government of the Islamic Republic of Afghanistan (3 May 2007); Arrangement between the Government of Canada and the Government of the United States of America concerning the Transfer of Persons between the Canadian Forces and the US Forces in Afghanistan (18 November 2011); Arrangement between the Government of the United Kingdom and the Government of the United States of America concerning US Support for the Transfer of UK-held Detainees from UK Detention to the Afghan Authorities (2 May 2013). See also the ICRC’s study on customary international humanitarian law, which identified more than 160 rules based on a finding of State practice and opinio juris; ICRC, Customary International Humanitarian Law (Cambridge University Press 2005).

³ See e.g. Supplemental Arrangement to the Status of Forces Agreement between the United Nations and the Government of the Republic of Mali concerning the Treatment of Individuals Detained and Handed over to the Government of Mali by the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) (signed and entered into force 1 July 2013) 2933 UNTS 25; UN Secretariat, ‘Secretary-General’s Bulletin: Observance by United Nations Forces of International Humanitarian Law’ (6 August 1999) UN Doc ST/SGB/1999/13; ILC, ‘Draft Articles on the Effects of Armed Conflicts on Treaties’ (26 April–3 June and 4 July–12 August 2011) UN Doc A/66/10, reproduced in [2018/II – Part Two] YBILC 107, 112–16, esp arts 5, 7, 10; Agreement between the European Union and the Central African Republic Concerning Detailed Arrangements for the Transfer to the Central African Republic of Persons Detained by the European Union Military Operation (EUFOR RCA) in the Course of Carrying out its Mandate, and Concerning the Guarantees Applicable to such Persons [2014] OJ L251/3; Updated European Union Guidelines on Promoting Compliance with International Humanitarian Law (IHL) [2009] OJ C303/12.

⁴ Notably, tribunals have been established specifically to address violations of international law, including IHL, following many modern armed conflicts. Examples include the International Criminal Tribunal for the former Yugoslavia, established in 1993; the International Criminal Tribunal for Rwanda, established in 1994; the Eritrea-Ethiopia Claims Commission, established in 2000; the Extraordinary Chambers in the Courts of Cambodia, in 2000; and the Special Court for Sierra Leone, established in 2000. In addition, the International Criminal Court, established by the Rome Statute in 1998, has jurisdiction over certain serious violations of the Geneva Conventions, and the International Court of Justice has also rendered decisions related to IHL, e.g. Legal Consequences of the Construction of a Wall (Advisory Opinion) [2004] ICJ Rep 136; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226.

⁵ See e.g. ME O’Connell, ‘Historical Development and Legal Basis’ in D Fleck (ed), The Handbook of International Humanitarian Law (4th edn, Oxford University Press 2021) 1; M Sassòli, International Humanitarian Law: Rules, Controversies and Solutions to Problems Arising in Warfare (Edward Elgar 2019) 43 [4.1.8]; R Kolb and K del Mar, ‘Treaties for Armed Conflict’ in A Clapham and P Gaeta (eds), The Oxford Handbook of International Law of Armed Conflict (Oxford University Press 2014) 79; Y Ronen, ‘Silent Enim Leges Inter Arma – but Beware the Background Noise: Domestic Courts as Agents of Development of the Law on the Conduct of Hostilities’ (2013) 26 LJIL 599; R Petit and N Jain, ‘Preserving the Rule of Law in the Age of the “War on Terror”: Lessons from the Experience of International Criminal Tribunals’ (2008) 39 STLP 67; S Carvin, ‘In Times of War the Law Is Not So Silent’ (2008) 12(3) IJHR 471; CL Lim, ‘Inter Arma Silent Leges? Black Hole Theories of the Laws of War’ in VV Ramraj (ed), Emergencies and the Limits of Legality (Cambridge University Press 2008) 385. But see NK Modirzadeh and DA Lewis, ‘Humanitarian Values in a Counterterrorism Era’ (2022) 103 IRRC 403; L Hajjar, ‘The Counterterrorism War Paradigm versus International Humanitarian Law: The Legal Contradictions and Global Consequences of the US “War on Terror”’ (2019) 44(4) LSI 922.

⁶ Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (GCI); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (GCII); Geneva Convention (III) relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 (GCIII); Geneva Convention (IV) relative to the Protection of Civilians in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (GCIV); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (API); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977 (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (APII); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III) (adopted 8 December 2005, entered into force 14 January 2007) 2404 UNTS 261 (APIII).

⁷ ILC, ‘First Report on Subsequent Agreements and Subsequent Practice in relation to Treaty Interpretation’ (19 March 2013) UN Doc A/CN.4/660, reproduced in [2013/II – Part One] YBILC 51 [141] (First Report Nolte).

⁸ See K Lawand and I Robinson, ‘Development of Treaties Limiting or Prohibiting the Use of Certain Weapons: The Role of the International Committee of the Red Cross’ in R Geiß, A Zimmermann and S Haumer (eds), Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law (Cambridge University Press 2017) 141.

⁹ Y Sandoz, ‘The International Committee of the Red Cross as Guardian of International Humanitarian Law’ (ICRC, 1998) <www.icrc.org/en/article/guardian-international-humanitarian-law> (last accessed 1 June 2025).

¹⁰ Statutes of the International Red Cross and Red Crescent Movement (adopted 31 October 1986, entered into force 8 November 1986, amended 21 June 2006), reproduced in ICRC and the International Federation of Red Cross and Red Crescent Societies, Handbook of the International Red Cross and Red Crescent Movement (14th edn, ICRC and the International Federation of Red Cross and Red Crescent Societies 2008) 519, art 5 <www.rcrc-resilience-southeastasia.org/wp-content/uploads/2017/12/Handbook-RCRC-Movement.pdf> (last accessed 1 June 2025).

¹¹ G Abi-Saab, ‘The Specificities of Humanitarian Law’ in Christophe Swinarski (ed), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (ICRC and Martinus Nijhoff 1984) 265, 279–80. See also Geiß, Zimmermann and Haumer (Footnote n 8) esp 242–44.

¹² Statutes of the International Red Cross and Red Crescent Movement (Footnote n 10) 519, arts 5 (2)(c), 5 (2)(g).

¹³ M Zwanenburg, ‘The “External Element” of the Obligation to Ensure Respect for the Geneva Conventions: A Matter of Treaty Interpretation’ (2021) 97 ILS 621; MN Schmitt and S Watts, ‘Common Article 1 and the Duty to “Ensure Respect”’ (2020) 96 ILS 674; V Robson, ‘The Common Approach to Article 1: The Scope of Each State’s Obligation to Ensure Respect for the Geneva Conventions’ (2020) 25(1) JCSL 101; E Stubbins Bates, ‘Geneva Convention III Commentary: Unpacking the Potential of “Ensure Respect” in Common Article 1’ (Just Security, 30 October 2020) <www.justsecurity.org/73166/geneva-convention-iii-commentary-unpacking-the-potential-of-ensure-respect-in-common-article-1> (last accessed 1 June 2025).

¹⁴ H Dunant, A Memory of Solferino (first published 1862, ICRC 2016) 55, 58, 63 and 70. This is an inspiring origin story, but it’s important to note that Henry Dunant was not the only one to have similar ideas, or even the first. By his own account, he took his inspiration from several prominent figures from history and from his own time. He lists Archbishop Charles Borromeo, Frederico Borromeo, Bishop Belzunce de Castel-Moron, John Howard, Sister Marthe of Besançon, Sister Barbe Schyner, Grand Duchess Helen Pawlowna of Russia, Florence Nightingale (Footnote ibid 118–19). See also D Palmieri, ‘An Institution Standing the Test of Time? A Review of 150 Years of the History of the International Committee of the Red Cross’ (2012) 94 IRRC 1273, 1276.

¹⁵ Dunant (Footnote n 14) 115, 126.

¹⁶ Through the International Committee for Relief to the Wounded, based in Basel; Palmieri (Footnote n 14) 1277.

¹⁷ See L Cameron, ‘The ICRC in the First World War: Unwavering Belief in the Power of Law?’ (2016) 97 IRRC 1099.

¹⁸ See R Geiß and A Zimmermann, ‘The International Committee of the Red Cross: A Unique Actor in the Field of International Humanitarian Law Creation and Progressive Development’ in R Geiß, A Zimmermann and S Haumer (eds), Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law (Cambridge University Press 2017) 222; R Heinsch, ‘The International Committee of the Red Cross and the Geneva Conventions of 1949’ in R Geiß, A Zimmermann and S Haumer (eds), Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law (Cambridge University Press 2017) 55.

¹⁹ J-M Henckaerts, ‘Bringing the Commentaries on the Geneva Conventions and their Additional Protocols into the Twenty-First Century’ (2012) 94 IRRC 1551, 1552; First Report Nolte (Footnote n 7) [141].

²⁰ N Melzer, Direct Participation in Hostilities (ICRC 2009).

²¹ See ICRC, ‘2013 Arms Trade Treaty’ (ICRC, 21 April 2021) <www.icrc.org/sites/default/files/document/file_list/dp_consult_41_2013_arms_trade_treaty_web_0.pdf> (last accessed 1 June 2025); ICRC, ‘National Committees for the Implementation of International Humanitarian Law’ (ICRC, 21 May 2021) <www.icrc.org/sites/default/files/document/file_list/dp_consult_14_national_committees_for_the_implementation_of_ihl.pdf> (last accessed 1 June 2025); ICRC, ‘Legal Review of New Weapons’ (ICRC, 29 November 2021) <www.icrc.org/sites/default/files/document/file_list/dp_consult_12_legal_review_of_new_weapons.pdf> (last accessed 1 June 2025).

²² See T Ferraro, ‘The ICRC’s Legal Position on the Notion of Armed Conflict Involving Foreign Intervention and on Determining the IHL Applicable to This Type of Conflict’ (2016) 97 IRRC 1227; I Herbet and J Drevon, ‘Engaging Armed Groups at the International Committee of the Red Cross: Challenges, Opportunities and COVID-19’ (2020) 102 IRRC 1021; C Droege and E Giorgou, ‘How International Humanitarian Law Develops’ (2022) 104 IRRC 1798.

²³ See ICRC, ‘Exploring Humanitarian Law (EHL)’ (ICRC, 5 September 2023) <www.icrc.org/en/document/exploring-humanitarian-law-ehl-resource-pack> (last accessed 1 June 2025); ICRC, ‘International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Recommitting to Protection in Armed Conflict on the 70th Anniversary of the Geneva Conventions’ (ICRC, 22 November 2019) <www.icrc.org/en/document/icrc-report-ihl-and-challenges-contemporary-armed-conflicts> (last accessed 1 June 2025); ICRC, ‘Gendered Impacts of Armed Conflict and Implications for the Application of International Humanitarian Law’ (ICRC, 29 June 2022) <www.icrc.org/fr/publication/4634-gendered-impact-armed-conflict-and-ihl> (last accessed 1 June 2025).

²⁴ N Melzer and E Kuster (eds), International Humanitarian Law: A Comprehensive Introduction (ICRC 2022).

²⁵ M Sassòli, AA Bouvier and A Quintin, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law (3rd edn, ICRC 2011).

²⁶ Available open access at <https://international-review.icrc.org> (last accessed 1 June 2025).

²⁷ The three databases (‘Treaties, States Parties and Commentaries’, ‘Customary International Humanitarian Law’ and ‘National Practice’) are available at <https://ihl-databases.icrc.org/en> (last accessed 1 June 2025).

²⁸ Available at <www.icrc.org/en/document/ihl-digital-app> (last accessed 1 June 2025).

²⁹ For a detailed discussion on the history of ICRC Commentaries, see C Mohr and E Policinski, ‘From the Gilded Age to the Digital Age: The Evolution of ICRC Legal Commentaries’ (2022) 104 IRRC 1898.

³⁰ G Moynier, Etude sur la Convention de Genève pour l’amélioration du sort des militaires blessés dans les armées en campagne: 1864 et 1869 (Librarie de J Cherbuliez 1870).

³¹ Footnote ibid 63–64, 136–37, 177–82 and 191–93.

³² Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (adopted 6 July 1906, entered into force 9 August 1907) 11 LNTS 440; See ICRC, ‘Le Comité international et la Conférence de 1906’ (1906) 37 Bulletin 270.

³³ See ICRC, ‘Prof Ernest Röthlisberger – La Nouvelle Convention de Genève’ (1908) 39 Bulletin 254.

³⁴ C Djeffal, ‘Commentaries on the Law of Treaties: A Review Essay Reflecting on the Genre of Commentaries’ (2013) 24 EJIL 1223.

³⁵ First Award under the Convention between Costa Rica and Nicaragua of 8 April 1896 for the Demarcation of the Boundary between the two Republics (1897) 28 RIAA 215, 216.

³⁶ Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (adopted 27 July 1929, entered into force 19 June 1931) 118 LNTS 303; Geneva Convention relative to the Treatment of Prisoners of War (adopted 27 July 1929, entered into force 19 June 1931) 118 LNTS 343.

³⁷ P Des Gouttes, La Convention de Genève du 27 juillet 1929: commentaire (ICRC 1930) Preface by M Huber, xviii.

³⁸ G Werner, ‘Un commentaire du Code des prisonniers de guerre’ (1932) 159 Bulletin 199.

³⁹ H Lauterpacht, ‘Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’ (1949) 26 BYBIL 48, 55.

⁴⁰ GCI, GCII, GCIII and GCIV (Footnote n 6).

⁴¹ JS Pictet (ed), The Geneva Conventions of 12 August 1949: Commentary, Vol. I: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (ICRC 1952); JS Pictet (ed), The Geneva Conventions of 12 August 1949: Commentary, Vol. II: Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (ICRC 1960); JS Pictet (ed), The Geneva Conventions of 12 August 1949: Commentary, Vol. III: Geneva Convention relative to the Treatment of Prisoners of War (ICRC 1960); JS Pictet (ed), The Geneva Conventions of 12 August 1949: Commentary, Vol. IV: Geneva Convention relative to the Protection of Civilian Persons in Time of War (ICRC 1958).

⁴² The ICRC lawyers who worked on these Commentaries were Frédéric Siordet, Claude Pilloud, René-Jean Wilhelm, Jean-Pierre Schoenholzer, Oscar Uhler and Jean de Preux. The only external specialist on the team was Dutch naval captain and judge Major MW Mouton, to assist on the elaboration of the Commentary on the second Geneva Convention, relative to the protection of the wounded, sick and shipwrecked members of armed forces at sea. This perhaps demonstrates a certain reticence on behalf of IHL specialists regarding the complex area of the law of the sea, but also an openness to external input on an ICRC product (A CICR, minutes of meeting, working session (30 April 1953) available in the ICRC Archives).

⁴³ Pictet, Siordet, Pillaud and Wilhelm had worked on the revision of the Conventions and followed the discussions of the 1949 Diplomatic Conference and the earlier expert meetings.

⁴⁴ Schéma relatif à l’établissement des Commentaires des nouvelles Conventions de Genève. A CICR, minutes of meetings, legal commission (14 September 1949) available in the ICRC Archives.

⁴⁵ See Gardiner (Footnote n 1) 51–73. Specifically looking at the evolution of international law commentaries as a medium for interpretation, see Djeffal (Footnote n 34) 1231–36.

⁴⁶ UN Secretary-General, ‘Survey of International Law in Relation to the Work of Codification of the International Law Commission’ (10 February 1949) UN Doc A/CN.4/Rev.1, 51 ff. See also ME Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff 2009) 28–38.

⁴⁷ Villiger (Footnote n 46) 35–38.

⁴⁸ VCLT (Footnote n 1).

⁴⁹ J-M Sorel and V Boré Eveno, ‘Article 31’ in O Corten and P Klein (eds), The Vienna Convention on the Law of Treaties: A Commentary (Oxford University Press 2011) 804.

⁵⁰ E Bjorge, ‘The Vienna Rules, Evolutionary Interpretation, and the Intentions of the Parties’ in A Bianchi, D Peat and M Windsor (eds), Interpretation in International Law (Oxford University Press 2018) 189, 203.

⁵¹ API and APII (Footnote n 6).

⁵² Jean Pictet served as the chairman the reading committee overseeing the project. The contributors included ICRC jurists Jean de Preux, Yves Sandoz, Bruno Zimmermann, Philippe Eberlin, Hans-Peter Gasser, Claude F Wenger, Philippe Eberlin and Sylvie-S Junod, the first woman to be part of a team drafting ICRC Commentaries. For detailed discussion, see Mohr and Policinski (Footnote n 29) 1906.

⁵³ E.g. the 1870 Commentary referred to the ‘esprit général’ (general purpose) of the treaty, meaning its object and purpose. Moynier (Footnote n 30) 143. Similarly, the 1930 Commentary referred to ‘the general purpose of the Convention must inform all of its application, even in the details’; Des Gouttes (Footnote n 37) 191. For more analysis, see Mohr and Policinski (Footnote n 29) 1909–10.

⁵⁴ For example, Y Sandoz et al (eds), Commentary on the Additional Protocols of 8 June 1977 of the Geneva Conventions of 12 August 1949 (Martinus Nijhoff 1987) 58, 523, 541, 977, 1013–14 and 1035.

⁵⁵ Footnote ibid 1059–60.

⁵⁶ Footnote ibid xxv.

⁵⁷ On the sources of authority for ICRC materials, see L Mührel, The Authority of the International Committee of the Red Cross: Determining What International Humanitarian Law Is (Brill/Nijhoff, 2024) 31–32. Mührel finds that the marks perceived authority of the ICRC (and other non-State actors) come from the expertise and reputation of the author and their affiliated institution(s); the form, process, and methodology used for the work in question; and, lastly, tradition.

⁵⁸ Two shorter ICRC Commentaries published between 1987 and the launch of the project to update the ICRC Commentaries are worth mentioning here. When Annex I of the First Additional Protocol (containing the regulations for identification of various categories of persons and objects) was amended in 1993, the Commentary on it was amended as well, drafted by ICRC technical adviser Dominique Loye. D Loye, Commentary on Annex I to Protocol Additional I to the Geneva Conventions of 1949: Regulations concerning identification, as amended on 30 November 1993 (ICRC 2002) <https://ihl-databases.icrc.org/en/ihl-treaties/api-amended-annex-i-1993> (last accessed 1 June 2025). Then the Third Additional Protocol was concluded in 2005. The Commentary was drafted by ICRC legal adviser Jean-François Quéguiner, who had been part of the ICRC delegation to the 2005 Diplomatic Conference. It was published in the International Review of the Red Cross. Each of these Commentaries is written by a single author on behalf of the ICRC.

⁵⁹ The three Commentaries that have been published at time of writing are: ICRC, 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 (2nd edn, Cambridge University Press 2016) (Updated Commentary on GCI); ICRC, Commentary on the Second Geneva Convention: Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (2nd edn, Cambridge University Press 2017) (Updated Commentary on GCII); ICRC, Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War (2nd edn, Cambridge University Press 2021) (Updated Commentary on GCIII). For details on the project and the rationale behind it, see J-M Henckaerts (Footnote n 18); L Lijnzaad and TK Githiora in S Longuet et al, ‘Conference on the ICRC Updated Commentary on the First Geneva Convention: Capturing 60 Years of Practice’, (2017–18) 56 MLLWR 1, 178, 211.

⁶⁰ L Cameron et al, ‘The Updated Commentary on the First Geneva Convention: A New Tool for Generating Respect for International Humanitarian Law’ (2015) 97 IRRC 1212.

⁶¹ The composition of the Editorial Committee has changed slightly for each Commentary published so far. For the Commentary on the First Geneva Convention, the Editorial Committee was made up of (in alphabetical order) Knut Dörmann, then-chief legal officer and head of the ICRC’s legal division; Liesbeth Lijnzaad, a judge on the International Tribunal for the Law of the Sea; Marco Sassòli, professor at the University of Geneva, and Philippe Spoerri, the ICRC’s then-Director of International Law and Cooperation. The Editorial Committee for the Commentary on the Second Geneva Convention was made up of Knut Dörmann, Liesbeth Lijnzaad, Marco Sassòli and Philippe Spoerri. The Editorial Committee for the Commentary on the Third Geneva Convention was Knut Dörmann, who at that time was the ICRC’s head of delegation in Brussels; Cordula Droege, the ICRC’s incoming chief legal officer and head of the legal division; Helen Durham, the ICRC’s incoming Director of Law and Policy; Liesbeth Lijnzaad; Marco Sassòli; Philip Spoerri, who at that time was ICRC’s head of delegation in New York; and Brigadier General Kenneth Watkin (ret.) a former judge advocate from the Canadian Armed Forces. For the forthcoming Commentary on the Fourth Geneva Convention, the Editorial Committee is Knut Dörmann; Cordula Droege; Liesbeth Lijnzaad; Nils Melzer, the incoming ICRC Director of Law, Diplomacy and Policy; Marco Sassòli; and Wing Commander Tim Wood, Chief Legal Adviser at Headquarters Joint Forces for New Zealand.

⁶² Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16 [53].

⁶³ See e.g. Crime of Genocide (Footnote n 1) [160]; LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Rep 466 [101]; Kasikili/Sedudu Island (Footnote n 1) [18–20]; US Court of Appeals 2nd Cir, Eahrlich v American Airlines (2004) 360 F 3d 366, 373 fn 5; US Court of Appeals 2nd Cir, Chubb Son, Inc v Asiana Airlines (2000) 214 F 3d 301; First Report Nolte (Footnote n 7) [8].

⁶⁴ See MW Meier, ‘The Updated GCIII Commentary: A Flawed Methodology?’ (Lieber Institute – West Point, 3 February 2021) <https://lieber.westpoint.edu/updated-gciii-commentary-flawed-methodology> (last accessed 1 June 2025); KJ Heller, ‘First Thoughts from Academia on the Updated GCI Commentary’ (OpinioJuris, 22 July 2016) <http://opiniojuris.org/2016/07/22/multi-blog-series-first-thoughts-on-the-updated-gci-commentary-from-academia> (last accessed 1 June 2025).

⁶⁵ See DM Amann, ‘Commenting On the ICRC Geneva Commentaries’ (Diane Marie Amann, 15 March 2016) <https://dianemarieamann.com/2016/03/15/commenting-on-the-icrc-geneva-commentaries-30-march-in-d-c/> (last accessed 1 June 2025); E Lapidor, ‘New Developments in ICRC Commentaries to the POW Convention’ (Just Security, 18 June 2020) <www.justsecurity.org/70863/pow-geneva-convention-commentary-highlights-of-new-developments/> (last accessed 1 June 2025); K Okimoto, ‘The United Nations and the Third Geneva Convention’ (EJIL: Talk!, 26 October 2020) <www.ejiltalk.org/the-united-nations-and-the-third-geneva-convention/> (last accessed 1 June 2025). The project to update the ICRC Commentaries was also the subject of the 22nd edition of the Bruges Colloquium, an annual workshop co-hosted by the ICRC and the College of Europe that brings together legal practitioners from around Europe. See the program here: <www.coe-icrc.eu/en/programme> (last accessed 1 June 2025).

⁶⁶ See e.g. Gardiner (Footnote n 1). Specific to the ICRC’s updated Commentaries, see Updated Commentary on GCIII (Footnote n 59) Introduction; J-M Henckaerts et al, ‘ICRC Perspectives on the Interpretation of the Third Geneva Convention More Than Seventy Years after Its Adoption’ in MN Schmitt and CJ Koschnitzky (eds) Prisoners of War in Contemporary Conflict (Oxford University Press 2023) 375–407.

⁶⁷ Updated Commentary on GCIII (Footnote n 59) [81].

⁶⁸ Footnote ibid [1824] (citations omitted).

⁶⁹ Footnote ibid [789–90].

⁷⁰ Footnote ibid [1046].

⁷¹ Footnote ibid [2199].

⁷² Footnote ibid [2228], citing Concise Oxford English Dictionary (12th edn, Oxford University Press 2011) 728.

⁷³ Updated Commentary on GCIII (Footnote n 59) [3315].

⁷⁴ Footnote ibid [575].

⁷⁵ Footnote ibid [576] (citations omitted).

⁷⁶ Sorel and Boré Eveno (Footnote n 49) 825.

⁷⁷ Or ‘practically universal’. See Loizidou v Turkey (Preliminary Objections) (25 March 1995) Series A no 310 [79–80]. See also Draft Conclusions on Subsequent Practice (Footnote n 1) Conclusions 4 (1) and (2), 6 (1) and (2), 10.

⁷⁸ Updated Commentary on GCIII (Footnote n 59) [1357] fn 68.

⁷⁹ Footnote ibid [988].

⁸⁰ Footnote ibid [5168].

⁸¹ Footnote ibid [3282–90, 4873].

⁸² VCLT (Footnote n 1) art 31. See also FG Jacobs, ‘Varieties of Approach to Treaty Interpretation’ (1969) 18(2) ICLQ 318, 319; ILC, ‘Documents of the Second Part of the Seventeenth Session and of the Eighteenth Session Including the Reports of the Commission to the General Assembly’ (19 July 1966) UN Doc A/CN.4/SER.A/1966/Add.1; R Gardiner, Treaty Interpretation (2nd edn, Oxford University Press 2015) 215–16; A Aust, Modern Treaty Law and Practice (3rd edn, Cambridge University Press 2013) 205.

⁸³ Updated Commentary on GCIII (Footnote n 59) Introduction, [91]. See also Corfu Channel (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4, 22.

⁸⁴ The object and purpose of each Geneva Convention is laid out in the introduction of the corresponding Commentary. For details on the object and purpose of the Third Convention, see L Lijnzaad, ‘Swimming into Deep Water: Article 91(3) of the Third Geneva Convention and the Successful Escape of Prisoners of War by Sea’ in S Marquardt and S Blockmans (eds), The European Union’s Contribution to International Peace and Security: Liber Amicorum in honour of Gert-Jan van Hegelsom (Brill 2023) 310. For details on how the object and purpose of the Fourth Geneva Convention was identified, see K Mačák and E Policinski, ‘In Pursuit of a Treaty’s Soul: A Study of the Object and Purpose of the Fourth Geneva Convention’ (2024) 73 ICLQ 385.

⁸⁵ Updated Commentary on GCIII (Footnote n 59) [89].

⁸⁶ Footnote ibid [3819].

⁸⁷ Draft Conclusions on Subsequent Practice (Footnote n 1) Conclusions 4 (3), 6 (3), 7.

⁸⁸ Y Le Bouthillier, ‘Article 32’ in O Corten and P Klein (eds), The Vienna Convention on the Law of Treaties: A Commentary (Oxford University Press 2011) 841, 861–62.

⁸⁹ J-M Henckaerts and E Pothelet, ‘The Interpretation of IHL Treaties: Subsequent Practice and Other Salient Issues’ in H Krieger and J Püschmann (eds), Law-Making and Legitimacy in International Humanitarian Law (Edward Elgar 2021) 150, 162–68.

⁹⁰ Updated Commentary on GCIII (Footnote n 59) [4469].

⁹¹ Footnote ibid [1672] (citations omitted).

⁹² Footnote ibid [2229].

⁹³ Footnote ibid [4469].

⁹⁴ The six official UN languages are (in alphabetical order): Arabic, Chinese, English, French, Russian and Spanish. See UN, ‘Official Languages’ (UN, 2025) <www.un.org/en/our-work/official-languages> (last accessed 1 June 2025).

⁹⁵ Updated Commentary on GCIII (Footnote n 59) [1573].

⁹⁶ Footnote ibid [559] fn 265.

⁹⁷ Footnote ibid [2312].

⁹⁸ Wall (Footnote n 4) [157]; Prosecutor v Kupreškić et al (Trial Chamber Judgment) IT-95–16-T (14 January 2000) [519]; Updated Commentary on GCI (Footnote n 59) [71, 119, 177]; Updated Commentary on GCII (Footnote n 59) [92, 141, 199]; Updated Commentary on GCIII (Footnote n 59) [152, 210]; Abi-Saab (Footnote n 11) 271; Pictet (Footnote n 40) 17–18 (‘it is not merely an engagement concluded on a basis of reciprocity, binding each party to the contract only in so far as the other party observes its obligations. It is rather a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties’).

⁹⁹ Updated Commentary on GCIII (Footnote n 59) [152–53]; Pictet (Footnote n 41) 18. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 [220]; ICRC, Customary (Footnote n 2) Vol I, Rule 144, 509–13. See also Zwanenburg (Footnote n 13); Stubbins Bates (Footnote n 13); L Hill-Cawthorne, ‘Common Article 1 of the Geneva Conventions and the Method of Treaty Interpretation’ (2023) 72 ICLQ 869. But see Schmitt and Watts (Footnote n 13); Robson (Footnote n 13).

¹⁰⁰ A Clapham, War (Oxford University Press 2021) 264; A Quintin, The Nature of International Humanitarian Law: A Permissive or Restrictive Regime? (Elgar 2020) 16, 257.

¹⁰¹ Sandoz et al (Footnote n 54) 393. See also Instructions for the Government of Armies of the United States in the Field (Lieber Code) (24 April 1863) <https://ihl-databases.icrc.org/en/ihl-treaties/liebercode-1863> arts 14–16 (last accessed 1 June 2025); WG Downey, ‘Law of War and Military Necessity’ (1953) 47 AJIL 251, 254; A Ghazali Abu Hassan, ‘Military Necessity and the Restriction on Methods and Means of Warfare’ (2006) 2 JIS 23, 26; S Zgaga, ‘Military Necessity in International Criminal Law’ (2012) 17 Review of Comparative Law 109, 111.

¹⁰² ICRC, International Humanitarian Law: Answers to Your Questions (ICRC 2023) 6.

¹⁰³ See Sandoz et al (Footnote n 54) 392–93, paras 1388–89; ICRC (Footnote n 102) 6. Kolb and Del Mar argue that under the Geneva Conventions, the principle of humanity took on increasing weight in IHL interpretation, ‘amplifying’ the protections contained in IHL norms. ‘Thus, the interpretation of IHL provisions progressively became more liberal and more expansive. HRL equally pushed in that direction.’ According to their view, before the 1949 Geneva Conventions, IHL was principally viewed as a set of norms limiting permissible means and methods of warfare, and norm-setting provisions such as the Martens Clause were interpreted as aspirational rather than as binding legal norms. In other words, they were ‘not yet taken seriously’. Kolb and Del Mar (Footnote n 5) 79–80.

¹⁰⁴ GS Corn, ‘Principle of Humanity’ (2013) MPEPIL 1810.

¹⁰⁵ Updated Commentary on GCIII (Footnote n 59) [497] fn 181. See also F Bouchet-Saulnier, The Practical Guide to Humanitarian Law (3rd edn, Rowman and Littlefield 2014) 396 (‘any violence or destruction that is not justified by military necessity is prohibited by the law of armed conflict’); E David, Principes du droit des conflits armés (4th edn, Bruylant 2008) 106–14.

¹⁰⁶ Updated Commentary on GCIII (Footnote n 59) [4293].

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