The role of “commentaries” in the shaping of contemporary international law proved a recurring question in the just-concluded morning public plenary of today’s conference, “Humanity’s Common Heritage: 2016 Commentary on the First Geneva Convention.”
First broaching the issue was the keynote, Jean-Marie Henckaerts (right). A Georgia Law alumnus, he’s the Legal Adviser at the International Committee of the Red Cross who’s leading the ICRC’s multiyear effort to produce 21st C. commentaries on the meaning of the core instruments of international humanitarian law; that is, the four Geneva Conventions of 1949 and their subsequent Protocols Additional. Joining him were participants in the panel that followed: speakers Major-General Blaise Cathcart, Judge Advocate General of the Canadian Armed Forces, NYU Law Professor Ryan Goodman, Emory Law Professor Laurie R. Blank, and Oxford Law Professor Dapo Akande, plus the moderator, yours truly, Associate Diane Marie Amann. I’ve the honor of serving as director of the Dean Rusk International Law Center at the University of Georgia School of Law, which is sponsoring the event along with the ICRC and the Georgia Journal of International & Comparative Law.
Soon to appear in print, the 2016 Commentary is available online here. At that website, the 2016 Commentary is situated alongside an earlier version, published in the 1950s by ICRC jurist Jean Pictet – and there’s a rub.
“Commentaries are not unusual,” Henckaerts remarked, adding that tomes exist commenting on nearly all the world’s treaties. Though true, the observation pretermits the sui generis status of the author of the 2016 Commentary – the ICRC, since 1863 a Geneva-based private organization that has led developments related to the shaping and compliance with international humanitarian law.
The earlier volumes “are ‘capital C,’ or maybe all caps,” Blank said. Others agreed, pointing not only to the ICRC’s unique status, but also to the fact that the Pictet commentaries occurred when the intentions of the negotiating states parties – to quote Goodman, “what the framers had in mind” – were well within memory. Continuing her analogy, Blank said she regarded the 2016 effort as a “small c” commentary – an extraordinary collection of expert analysis, but not exactly the same thing” as the Pictet effort.
Akande broadened the conversation, examining the ICRC commentaries within the context of public international law and treaty interpretation. Pictet’s work may enjoy “unjustifiable authority,” he said, adding that the constitutive nature of the new effort might outweigh any resulting loss of authoritative status. He then called upon the ICRC consistently to be “upfront” about how and why it arrived at its interpretive conclusions.
The points provoked multiple questions: How are treaties to be interpreted? What individuals or entities have authority to engage in interpretation? What weight do interpretations of states parties deserve – and with regard to universally ratified treaties like these, which states parties? What weight to a private organization like the ICRC? Nongovernmental organizations? And what about the victims of armed conflict – do their voices matter in this interpretive effort, and if so, how can victims be given voice?
The search for answers to these and many other questions continues this afternoon. In 3 consecutive closed sessions, about 2 dozen experts are discussing: (1) the Common Article 1 obligation to “ensure respect” for the Geneva Conventions; (2) protection of the wounded, sick, and other specially protected persons; and (3) classification of armed conflict.