Updating the ICRC Commentary on the Second Geneva Convention - Interview with Ellen Nohle

The International Committee of the Red Cross (ICRC) recently published the updated ICRC Commentary on the Second Geneva Convention for the protection of wounded, sick and shipwrecked in case of armed conflict at sea, as part of their multi-year project to update all the Commentaries on the 1949 Geneva Conventions and their 1977 Additional Protocols.

In view of the PHAP Briefing on 4 October on the basic principles conferring protection in case of armed conflict at sea, as well as on the key findings of the updated Commentary, PHAP had the opportunity to interview Ellen Nolhe, Legal Advisor at ICRC and member of the team updating the ICRC Commentaries, who introduced us to this project and to the importance of the Second Geneva Convention for humanitarian practitioners.

You are working on the team updating the ICRC Commentaries on the 1949 Geneva Conventions and their 1977 Additional Protocols. What does this process entail, in practice?

Yes, I am very privileged to be part of this hardworking team, which has been in existence for six years and has thus far produced two updated Commentaries, on the First and Second Geneva Conventions respectively. This timeline also gives you an indication of the extensive research and drafting process that leads to the final product you see online, or in print.

The process of updating the original Commentaries on the Geneva Conventions and their Additional Protocols is a collaborative one, where external experts – serving either as author or as peer reviewer – play an important role.

The ICRC project team carries out research, including based on the ICRC’s archives, and coordinates the project of updating the Commentaries. Members of the team also draft individual commentaries, along with other ICRC lawyers and external contributors. Once an initial draft has been authored, it is submitted for review to the group of authors drafting the Commentaries for a particular Convention, called the Reading Committee. Comments from the Reading Committee are integrated in a second draft that is submitted for review to an Editorial Committee, comprising senior ICRC and external humanitarian law experts. Based on the Editorial Committee’s comments, a new draft is prepared and submitted to a comprehensive process of peer review by a wide selection of scholars and practitioners from around the world involved in the study and implementation of IHL. For the Second Geneva Convention, the peer reviewers included persons with particular expertise in the law applicable to naval warfare and its operational aspects. Based on the feedback from the peer review, the project team prepares a final draft for approval by the Editorial Committee. The finalized version is then published on the ICRC website, and sent for print.

What are the Commentaries used for, and by whom? What weight do they have in legal discourse on issues of international humanitarian law (IHL)? What are the potential practical implications of substantive updates to the Commentaries?

The Geneva Conventions of 1949 and their Additional Protocols of 1977 continue to constitute the bedrock of IHL, and are legally binding upon the States Parties. As such, it is paramount that their meaning is widely understood and implemented, and that their rules can be correctly applied in case of an armed conflict. To this end, the updated Commentaries seek to facilitate common understanding of the meaning and critical importance of the Conventions and Protocols, which in turn may contribute to the protection of those affected by armed conflict. Informed by developments in law and practice, the updated Commentaries shed light on issues that might not have been envisaged at the time the original Commentaries were published. For example, the updated Commentary on the Second Geneva Convention notes that the traditional means of marking hospital ships might no longer suffice to signal their protected status, in view of modern long-distance warfare capabilities at sea.

The ICRC mandated the original Commentaries pursuant to its role as guardian and promoter of IHL; the same is true for the updated editions. This role, which is recognized in the Statutes of the International Red Cross and Red Crescent Movement, and the fact that interpretation of IHL lies at the heart of the ICRC’s daily work across its operations, give credibility to the updated Commentaries. The collaborative process of drafting the Commentaries, with critical input from renowned IHL experts across the world, adds further weight to the Commentaries in legal discourse on issues of IHL.

The updated Commentaries are drafted for a wide audience, including in particular practitioners of IHL, such as military commanders, staff officers and military lawyers, judges and lawyers at national and international courts and tribunals, the ICRC and other components of the Red Cross and Red Crescent Movement, NGO staff, as well as scholars and academics.

What was it that prompted the review of the Commentaries? Have there been major changes in the legal landscape in relation to the Second Geneva Convention since 1977?

The original Commentaries – the historical value of which in the interpretation of IHL is undisputed – were mainly based on the negotiation history of these treaties and on prior practice. However, the decades since the adoption of the Conventions and Additional Protocols have seen developments in both law and practice. The ICRC therefore decided in 2011 that it was time to update the Commentaries, in order to reflect contemporary practice and current legal interpretations. The updated Commentaries are more detailed than the original ones, as they benefit from more than 60 years of practice and legal interpretation by States, courts and scholars, as well as from research done in the ICRC archives.

With respect to changes to the legal landscape, the Second Convention (conferring protection to members of the armed forces which are wounded, sick or shipwrecked in case of an armed conflict at sea) has been supplemented in some respects by the Additional Protocols of 1977. For example, Additional Protocol I, applicable in international armed conflicts, provides several definitions relevant to the wounded, sick and shipwrecked at sea. The Second Geneva Convention has also been supplemented by the development of customary IHL. In this context, special mention should be made of the 1994 San Remo Manual which, in its own words, is a “contemporary restatement – together with some progressive development – of the law applicable to armed conflicts at sea”.

International law regulating activities at sea has also developed significantly since 1949, in particular with the adoption of the 1982 UN Convention on the Law of the Sea (UNCLOS) and several treaties under the auspices of the International Maritime Organization (IMO). For example, the term “warship”, which is used several times in the Second Geneva Convention, must now be interpreted in light of the requirements reflected in Article 29 of UNCLOS.

In addition to these legal developments, naval warfare capabilities have evolved since 1949, including long-distance targeting capabilities. Advances in technology have also influenced how States would be able to carry out their obligations under the Second Geneva Convention. For example, new technologies such as satellites and unmanned aerial platforms can be used to assess the number and location of wounded, sick, shipwrecked and dead at sea. Technology enabling underwater searches to retrieve the dead has likewise advanced significantly in recent years.

The session on 4 October will focus on the recently published Commentary on the Second Geneva Convention. In your opinion, what would you see as particularly important for humanitarian practitioners to understand regarding the legal implications of the Second Geneva Convention for the protection of wounded, sick and/or shipwrecked in case of armed conflict at sea?

One thing to keep in mind is that armed conflicts at sea, if they were to occur, would probably take place, to a greater extent than armed conflicts on land, away from the camera lenses of journalists and the oversight of civil society and humanitarian practitioners. This might raise a particular challenge in terms of how these actors can play a meaningful role in assisting those affected by armed conflict at sea and monitoring compliance with humanitarian rules. Addressing this challenge might require innovative thinking on how traditional modes of operation can be applied to the context of armed conflict at sea.

Second, it should be noted that the term ‘sea’, which is central to the scope of application of the Second Convention, is not defined in the Convention. This term distinguishes the scope of application of the Second Convention from that of the First Convention, which applies on land. To avoid a protection gap between the two Conventions, the term has been interpreted broadly in the updated Commentary. It is understood as comprising the high seas, exclusive economic zones, archipelagic waters, territorial waters, internal waters, as well as lakes and rivers.

Third, it is important to recognize that the Second Convention is specifically and exclusively designed to operate in the context of an armed conflict at sea, broadly defined. Many contemporary humanitarian issues, such as migration, are not directly related to an armed conflict and are therefore not regulated by the Convention. It is, however, possible to imagine scenarios where these broader humanitarian issues have a close connection to a non-international armed conflict at sea, thereby implicating Article 3 of the Second Geneva Convention. For example, if a vessel carrying migrants at sea is attacked by a Party to a non-international armed conflict, and they become shipwrecked as a matter of fact, these people are also shipwrecked persons in the sense of IHL, protected on the basis of Article 3 of the Second Convention.

Fourth, it should be emphasized that it is the parties to the armed conflict that have the primary responsibility to protect and care for the wounded, sick and shipwrecked and to take all possible measures to search for and collect them after each engagement. Still, neutral vessels may assist in search and rescue activities on their own initiative, or in response to an appeal by a party to the conflict. In such case, the Second Convention provides that the neutral vessel shall enjoy special protection and facilities to carry out such assistance.

Finally, the fact that the past decades have not seen as many armed conflicts occur at sea as have taken place on land must not lead to complacency. In the event of an armed conflict that takes place wholly or in part at sea, broadly defined, the provisions of the Second Geneva Convention must already be known and their contemporary meaning understood. In this context, the updated Commentary on the Second Geneva Convention constitutes an important tool.

On 4 October, learn more about the Second Geneva Convention and the key findings of ICRC’s new updated Commentary with Bruno Demeyere, who coordinated the update of the ICRC Commentary on the Second Convention. You can read more about the event and register at phap.org/4oct2017