The commentators

The long history of ICRC commentaries on IHL treaties can be traced back to 1870, with the publication of a commentary on the 1864 Geneva Convention and its 1868 additional articles by then ICRC president Gustave Moynier.Footnote ² Since then, the adoption of every new IHL treaty, or revision of an existing treaty, has led to the publication of at least one reference commentary providing an article-by-article interpretation of the law, informed by its drafting history and prior State practice. Most of these commentaries have been written by or under the direction of an authoritative ICRC figure.

In his review essay on commentaries as a genre of international legal scholarship, Christian Djeffal dates their systematization and subsequent proliferation back only to the United Nations (UN) era. “The drafts and treaties produced at diplomatic conferences such as the Hague Peace Conferences of 1899 and 1907 were not accompanied by commentaries, neither were the attempts to codify international law within the framework of the League of Nations”, he notes.Footnote ³ And so, it seems that, despite the genre's medieval roots – dating back to the glossators and commentators on the Codex Justinianus – and a strong tradition in German legal scholarship, the pre-Second World War ICRC commentaries on the Geneva Conventions were outliers for their time.

Since the publication of such commentaries was not common in the late nineteenth century's legal landscape, how was this tradition first established within the ICRC, and why? We suggest looking back to the publication of the very first ICRC commentary to find the answer. In 1870, Gustave Moynier published his Etude sur la Convention de Genève pour l'amélioration du sort des militaires blessés dans les armées en campagne: 1864 et 1868, a volume that was part legal treatise, part article-by-article commentary on Geneva Convention I (GC I).Footnote ⁴ Its content, the profile of its author and the time of publication are important clues to understanding the origin of the present-day ICRC Commentaries.

The ICRC's co-founder and president from 1864 to 1910, Gustave Moynier was a lawyer by training. A particularly prolific writer, he authored many works on the birth of the ICRC and the International Red Cross and Red Crescent Movement, and on IHL. His figure loomed large over the early days of the ICRC and over the birth of GC I. Was he the treaty's main drafter? He gave conflicting accounts on this point in his own writings. In a letter from 1864, he wrote that fellow ICRC co-founder General Dufour, who had led the Swiss Confederate forces to victory during the Sonderbund War, had produced the “draft concordat” that later became GC I. In 1900, in an article in the Bulletin International des Sociétés de la Croix-Rouge,Footnote ⁵ he wrote of a joint effort with General Dufour. In his 1902 autobiography, however, he presented himself as the sole author of the draft.Footnote ⁶ Moynier was strongly invested in making his contribution to the birth of the Red Cross and GC I one for the history books.Footnote ⁷ His name on the cover page on the first ICRC commentary is thus not a surprise. Why was he best positioned to write such a commentary and put forward an interpretation of the Convention? He asked – and answered – that question himself in the commentary: “[T]here was a story to tell”, he explained, “and we were in a better position than anyone else to know how things had happened.”Footnote ⁸ He derived his authority as a commentator from his first-hand experience in the drafting and adoption of the treaty. This position is reiterated throughout the volume, which is very much imbued with Moynier's personal opinions and recommendations for the development of the law.

What could have motivated Moynier to publish such a commentary in 1870? Six years after its adoption, GC I had already been tested on the battlefield. It had been applied during the Austro-Prussian War of 1866, though only on part of the theatre of the war, as three of the belligerents (Austria, the Kingdom of Saxony and the Kingdom of Hanover) were not parties to the Convention. This first test of the treaty's applicability had led to multiple debates on its revision. In 1868, States had agreed on additional articles extending its principles to maritime warfare; these were adopted but failed to secure any ratifications and thus never entered into force.Footnote ⁹ The treaty had also found its detractors, who argued that it was inapplicable on the battlefield, that its language was too vague, that it went too far, or that it would encourage espionage. These developments likely motivated the publication of Moynier's commentary, and he engaged directly with critics of the Convention in his text.Footnote ¹⁰ His approach to refuting such criticism was twofold. First, he anchored the Convention in a history of humanitarian progress in order to stress the treaty's legitimacy. He included a comprehensive historical introduction that recontextualized the Convention and presented its adoption as the logical consequence of the evolution of mentalities on warfare and human suffering in war. Second, in his article-by-article commentary, Moynier insisted on the drafters’ full grasp of military realities. He pointedly and repeatedly demonstrated how these were balanced with humanitarian concerns in the treaty.Footnote ¹¹ To stress this point, he derived examples from State practice, presenting benefits gained from the respect of the Convention during the Austro-Prussian War and contrasting them with clear instances of the harms it sought to prevent, from prior to its adoption.

The publication of the 1870 commentary was meant to raise support for the Convention, provide guidance on its application on the battlefield and convince States of its applicability. Moynier also anticipated future developments in this burgeoning body of international law, writing:

His will to encourage and help steer this development is apparent in the commentary. He concluded the book with his personal recommendations – he saw it as particularly important for States to agree on the treatment of prisoners of war (PoWs), in order to prevent the repetition of abuses observed in recent conflicts, citing examples from the American Civil War. Prescient if a bit premature, his conclusion looked toward the adoption of an additional convention that would extend the international legal protection granted to wounded and sick soldiers by GC I to PoWs.

Moynier's prediction on the development of IHL proved true, and as the law developed, the publication of legal commentaries on the new or revised treaties became a tradition. From 1870 to 2005, commentaries on the Geneva Conventions and their Additional Protocols were systematically published soon after those instruments’ adoption. The commentators benefited from this proximity in time. Like Moynier, they derived their authority from their first-hand knowledge of each treaty's drafting history, on top of their legal expertise and familiarity with State practice. The author of a certain treaty's commentary has in fact quite commonly been one of its main drafters.

GC I, the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, was first revised in 1906. The main drafter behind the revision was renowned law professor Louis Renault. The report of the drafting committee, which he presented, actually functioned as the revised treaty's commentary. When reproduced in full in the pages of the Bulletin International des Sociétés de la Croix-Rouge, it was introduced as “the only authorized commentary … which admirably summarizes all the work accomplished”.Footnote ¹³ Two years later, the Swiss Red Cross also published a commentary in German authored by the former secretary-general of the 1906 Diplomatic Conference, Swiss law professor Ernst Röthlisberger.Footnote ¹⁴ The publication was celebrated in the Bulletin, as the journal also served to spread the word about all new publications related to the activities of the ICRC and the development of IHL.Footnote ¹⁵

The next revision of the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field took place in 1929. After the Diplomatic Conference, Paul Des Gouttes, a lawyer and member of the ICRC's governing body, was tasked with writing the commentary on the revised treaty.Footnote ¹⁶ He was also the author of the Conference's report. In his preface, ICRC president Max Huber explained why Des Gouttes was uniquely positioned to write the commentary:

Des Gouttes’ authority as a commentator was thus based both on his first-hand knowledge of the negotiations behind the successive revisions of the Convention and on his ICRC experience. In his text, he paid homage to his predecessors, building on Renault and Röthlisberger's works on the 1906 Convention.Footnote ¹⁸ Showing the importance given to legal commentaries at that time, Des Gouttes owned two copies of the latter's commentary, including one dedicated to him by the author, which were gifted to the ICRC Library by his widow after his passing.

The 1929 Diplomatic Conference also adopted the first Convention relative to the Treatment of Prisoners of War. ICRC member and law professor at the University of Geneva Georges Werner, who had worked in the ICRC's International Prisoners of War Agency during the First World War, was among the drafters of the new Convention. A year prior, his study of the draft PoW Convention had appeared in the collected courses of the Hague Academy of International Law.Footnote ¹⁹ For the ICRC, he was thus a logical choice of author for the commentary on the new treaty, as agreed on 26 September 1929.Footnote ²⁰ He was however beaten to the publication by Danish diplomat Gustav Rasmussen, who had also attended the 1929 Diplomatic Conference but was not among the Convention's original drafters. Werner then reviewed Rasmussen's commentary in the Bulletin International des Sociétés de la Croix-Rouge, a twentieth-century example of a practice continuing to this day, in old and new media.Footnote ²¹

The ICRC also collected external commentaries, as well as other types of publications reflecting how States were interpreting and implementing IHL. One interesting example found in the ICRC Library's collections is Dr Alfons Waltzog's commentary on the 1907 Hague Convention (IV) on War on Land and its Annexed Regulations and the two 1929 Geneva Conventions, published in the middle of the Second World War.Footnote ²² The author worked for the court-martial of the German air force, as Kriegsgerichtsrat (judge advocate); his commentary was addressed to the officers and officials of Nazi Germany. ICRC jurist Werner Christ published quite a scathing review of the commentary in the International Review of the Red Cross, writing that “there [could] be found … the reflection of trends in Germany or even of the author's personal opinions, some of which appear to be questionable and which often, in our opinion, deviate from the spirit that inspired the Geneva Conventions”.Footnote ²³ A typewritten in-house translation into French of Waltzog's commentary on the 1929 PoW Convention was also produced, now part of the ICRC Library's heritage collection on wartime captivity. This is indicative of the ICRC's work to collect commentaries and other sources on the interpretation and implementation of IHL treaties, an important factor in the development of the dedicated collections of its Library up to the present day. Throughout history, the ICRC commentators have relied on these collections for their work and have expanded them with their own writings.

The adoption of the four 1949 Geneva Conventions marked, quite logically, a turning point in the history of the ICRC Commentaries: they would no longer be a “one-man job”. Under the direction of Jean Pictet, a team of ICRC jurists wrote the Commentaries on the four Conventions, published in French and in English throughout the 1950s.Footnote ²⁴ These commentators were Frédéric Siordet, Claude Pilloud, René-Jean Wilhelm, Jean-Pierre Schoenholzer, Oscar Uhler and Jean de Preux. The first three, as well as Pictet, had worked on the revision of the Conventions and followed the discussions of the 1949 Diplomatic Conference and the earlier expert meetings.

The foreword of the Commentary on GC I draws attention to the genealogy of the Commentaries. It traces a direct line from Louis Renault's 1906 report to the 1929 commentary by Paul Des Gouttes (“who was such a zealous and eminent authority on the Geneva Conventions”Footnote ²⁵) and finally to the present Commentary. Notably, this also seems to be the first time that the ICRC resorted to an external specialist: Major M. W. Mouton, naval captain and judge at the Dutch Court of Cassation, assisted in the elaboration of the Commentary on Geneva Convention II, relative to the protection of wounded, sick and shipwrecked members of the armed forces at sea.Footnote ²⁶

In 1977, the preparation of the Commentary on the Additional Protocols again mobilized a team of ICRC jurists, this time under the direction of Claude Pilloud.Footnote ²⁷ In the 1950s, Pilloud had been Pictet's right-hand man during the preparation of the Commentaries on the 1949 Geneva Conventions. Director of the ICRC's Department of Principles and Law until 1978, he had taken part in the drafting of the 1977 Additional Protocols. He came back from retirement to work on the Commentaries on the Additional Protocols, until his death in 1984. Most of the commentators working under him had also been part of the ICRC delegation to the 1974–77 Diplomatic Conference. The team comprised ICRC jurists Jean de Preux, Yves Sandoz, Bruno Zimmermann, Hans-Peter Gasser, Claude F. Wenger and Sylvie-Stoyanka Junod, as well as technical adviser Philippe Eberlin. The latter had been an officer on neutral merchant vessels during the Second World War, before beginning a long career with the ICRC as a delegate in 1945. An expert on the identification of medical transports, he wrote the Commentary on the Regulations Concerning Identification, Annex I to Additional Protocol I (AP I).Footnote ²⁸ The first woman to author an ICRC Commentary, Sylvie-Stoyanka Junod wrote the Commentary on Additional Protocol II (AP II), relating to the protection of victims of non-international armed conflicts. Like many other ICRC commentators, she was a jurist who would also acquire considerable experience in the field. Her ICRC career spanned over thirty years, both at the organization's headquarters and as a delegate in Latin America, Uganda, Sri Lanka, Georgia, India and Iraq. Jean Pictet, honorary vice-president of the ICRC at the time, presided over the reading committee, which oversaw the drafting of the Commentary.

The Commentaries on the 1949 Conventions and their Additional Protocols of 1977 had been published in French and English only. In 1998, the Commentary on common Article 3 and AP II was published by the ICRC in one volume in Spanish, bringing together a commentary on all articles related to non-international armed conflict. This reflected the increasing importance of the law governing non-international armed conflict, which had become the prevalent form of armed conflict. The stand-alone Spanish translation of the Commentary on AP I followed in 2001.Footnote ²⁹ Other provisions were perhaps seen as less of a priority for wide dissemination: when Annex I of AP I (containing the regulations for identification of various categories of persons and objects) was amended in 1993, the Commentary on it was amended as well, but the updated Commentary was published only in FrenchFootnote ³⁰ and has so far not been translated into English.

In 2006, ICRC legal adviser Jean-François Quéguiner – who was a member of the ICRC delegation to the 2005 Diplomatic Conference – wrote the Commentary on the newly adopted Additional Protocol III. This Commentary was published in the International Review of the Red Cross in French that year, and translated into English, Arabic, Spanish, Chinese and Russian the next.Footnote ³¹ This represented a significant expansion in the target audience from the previous ICRC Commentaries, which were originally produced in English and French only, and much later in Spanish.

Quite a few of the “usual suspects” of the ICRC's history – from Gustave Moynier to Jean Pictet – have thus left their mark on the history of the Commentaries. But, with the development of the law, State practice and standards for treaty interpretation, there has been a clear evolution towards a more collaborative effort, with the authority of a Commentary resting on its authors’ combined expertise and rigorous methodology, rather than on the profile of a main author.

In 2011, the ICRC decided to update its Commentaries on the 1949 Geneva Conventions and their 1977 Additional Protocols to take into account the State practice and legal developments that had taken place in the decades since the Conventions were adopted.Footnote ³² The goal of this endeavour is to ensure that the Commentaries are fit for purpose in contemporary armed conflicts and can serve as a useful interpretive tool for practitioners.Footnote ³³

The current project to update the ICRC Commentaries on the 1949 Geneva Conventions and their Additional Protocols is the work of many contributors, both internal and external to the ICRC.Footnote ³⁴ Some of the authors of the Commentaries work in the in-house team dedicated to this project, while others work elsewhere in the ICRC. A number of authors do not work for the ICRC. All the authors of the Commentary on a given Convention are on the reading committee, and thus have an opportunity to give feedback on the Commentaries drafted by others. In addition to external authors, there are around fifty external peer reviewers from all over the world for each of the Commentaries, some working on multiple volumes, totalling over 120 peer reviewers (so far). These are practitioners and academics who ensure that a range of professional specialties and geographically diverse perspectives are represented. Lastly, there is an editorial board to provide guidance and support to the project team, made up of a balance of internal ICRC legal experts and external legal experts representing academics, judges and military practitioners.Footnote ³⁵ Given all this involvement from legal experts within and outside the ICRC, it is clear that we have come a long way from commentaries that represented the personal opinion of a single jurist.

Methodology

Each of the ICRC Commentaries published since 1870 provides

Some Commentaries are organized differently, providing an overview of the topics addressed.Footnote ³⁷

The early commentaries introduced above followed the most common structure of an “article-by-article” explanation of the treaty, dissecting each provision and defining key terms. This textual analysis was – and remains – informed by each treaty's drafting history, by State practice and, in more recent history, by the practice of international courts and tribunals. In the case of a revision of an existing treaty, commentators relied on the analysis featured in their predecessors’ commentaries, to pinpoint areas of change and continuity. The ICRC commentators followed closely the legal scholarship related to the treaties, which could also inform their work. Some books passed from one commentator to the next. A French translation of German jurist and professor Carl Lueder's 1876 volume on GC I, for example, belonged successively to Gustave Moynier and to Paul Des Gouttes.Footnote ³⁸ As the law developed, ICRC commentators of revised or new treaties were able to build on the work of their predecessors precisely because those sources were collected and preserved, thus passing from one “generation” to the next. Finally, the commentators have also systematically been able to draw from what the ICRC had observed during past conflicts. Because of its dual mandate, the organization has historically been uniquely positioned to comment on what worked, and what did not, in the law and its application. Paul Des Gouttes, for instance, recalled practical examples from the work of the International Agency for Prisoners of War, operated by the ICRC during the First World War, to explain the drafters’ intentions on specific provisions of the revised 1929 Geneva Convention. He pointed out how the belligerents’ reluctance to repatriate captured sanitary personnel, a situation that the ICRC had denounced during the war, impacted the revision of the related article in the Convention.Footnote ³⁹ He also presented the new obligation to establish and transmit certificates of death as a direct consequence of the Agency's efforts to get such documentation, so that families could be informed of their loved ones’ deaths.

The ICRC Commentaries have thus relied on similar types of sources throughout history. They have also shared a common purpose: to make sense of the treaties and, for each of the treaties’ provisions, to help bridge the gap between the letter of the law and its application in concrete situations. However, as both law and State practice developed over time, the amount of information to consider dramatically increased, requiring a more systematic and rigorous approach. GC I had ten articles in 1864 when it was first adopted, thirty-three after the 1906 revision, thirty-nine after the 1929 revision and sixty-four (plus annexes) in its final 1949 version. Quite logically, the Commentary's number of pages almost doubled in size between the 1870 and 1952 publications, and more than doubled again between 1952 and the 2016 update, from 542 to 1,344 pages. This evolution is inevitable if the updated Commentaries are to be truly comprehensive. Today, their clear structure and the possibility of accessing the commentary on a specific article online with a few clicks help to guarantee that they remain an accessible practical tool for practitioners, despite their length.

The ICRC Commentaries’ methodology has also evolved over time in line with the development of recognized standards for treaty interpretation. Interestingly, some of the principles of treaty interpretation later codified in the Vienna Convention on the Law of Treaties (VCLT)Footnote ⁴⁰ can already be found in the very early commentaries, introduced as being derived from common sense by the commentator. Moynier, for instance, fought back against criticism regarding the lack of precision of the term ‘force militaire’ in the 1864 Convention by referring to the ‘esprit général’ (general purpose) of the treaty;Footnote ⁴¹ this is in line with Article 31(1) of the VCLT, which requires treaties to 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 light of its object and purpose” (emphasis added). Moynier had taken particular care to include a section on the purpose of the treaty in his commentary before starting the analysis of its provisions. Time and time again, he returned to this point to refute interpretations that ran contrary to the drafters’ intentions. Paul Des Gouttes would make a similar point in his text, half a century later: “the general purpose of the Convention must inform all of its application, even in the details”.Footnote ⁴²

The commentators on the 1864, 1906 and 1929 Conventions present their sources, but are less explicit regarding their methodology; instead, each author's first-hand knowledge of the treaty's drafting history was asserted as evidence of the commentary's reliability. This first changed in Pictet's era, as he drafted methodological guidelines for the team in charge of the Commentaries on the four 1949 Geneva Conventions. In that document, he stressed the importance of rooting the Commentaries’ analysis in the history of the Conventions, relying on the 1949 Diplomatic Conference's records and other preparatory works from 1946–48. He saw it as necessary to incorporate in the Commentaries the experiences of past conflicts, especially of the Second World War, in order to make sense of the addition of new provisions or the revision of existing ones. Finally, he stated that

This was a clear departure from earlier commentaries, in which authors did not hesitate to make their personal point of view known, criticize or praise the drafters on terminology choices, and make recommendations for future revisions of the law. It is apparent in these methodological guidelines that Pictet saw the preparation of the new Commentaries as a collaborative effort. He notably requested that the authors share their texts with each other at an early stage. The ICRC Commentary on the 1977 Additional Protocols confirmed this evolution; it was explicitly presented as a collective work, prepared according to a series of well-defined procedures. The commentary on each article was discussed by a reading committee and went through a minimum of two rounds of edits in order to take into account the committee's remarks and ensure consistency across the board.Footnote ⁴⁴

The authors of the so-called “Pictet Commentaries” were basing their work on State practice prior to the negotiation of the Conventions, notably during the Second World War, and several of them were present at the negotiations themselves and could therefore provide first-hand insights into what the drafters were thinking. The methodology behind the ICRC's ongoing project to update its Commentaries on the 1949 Geneva Conventions and their Additional Protocols is necessarily different.Footnote ⁴⁵ First, the updated Commentaries are based on State practice and legal developments in the more than seventy years since the adoption of the 1949 Conventions, rather than practice in the lead-up to their negotiation. There is a significant amount of material to delve into, as evidenced by the comparative length of the updated Commentaries. For example, in the 1960 Pictet Commentary on Geneva Convention III, the commentary on common Article 3 is approximately twenty pages long; by contrast, in the 2020 updated Commentary, the commentary on common Article 3 is over 200 pages. This demonstrates the extensive research behind the commentary on each and every article.

Second, this once-in-a-generation update follows the interpretive tools laid down in the VCLT, using that Convention as its methodology. As stated above, under Article 31 of the VCLT, 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 light of its object and purpose”. Additional elements that must be taken into account are any subsequent agreements between the parties to the treaty about its interpretation or application, subsequent practice establishing the agreement of all parties regarding the treaty's interpretation (although such unanimous agreement is exceedingly rare for universally accepted treaties like the Geneva Conventions), and other relevant rules of international law that apply in relations between the parties. The VCLT is a comprehensive interpretive tool that must be used as a whole to interpret each treaty provision. In other words, it is not possible to pick and choose which elements to apply – all of them must be used together.

Article 32 of the VCLT refers to supplementary means of interpretation that can confirm or clarify the interpretation of treaty provisions. These include the treaty's preparatory work, State practice that does not fall under Article 31 (the vast majority of State practice referenced in the updated Commentaries), the circumstances of the treaty's conclusion, judicial decisions, and scholarly literature.Footnote ⁴⁶ In looking at State practice, the drafters of the updated Commentaries are able to rely on the ICRC's first-hand observations, some of which are published in its annual reports, press releases, and the International Review of the Red Cross, as well as its vast Archives, both those that are open to the public and those that are still sealed.Footnote ⁴⁷

In accordance with Article 33 of the VCLT, where a treaty has been authenticated in two or more languages, the text is equally authoritative in each language. In such cases, the different-language versions of the treaty must be interpreted to be consistent with each other. This means that the equally authentic French and English versions of the Geneva Conventions can be compared to clarify the meaning of terms. This task is particularly complex for the Additional Protocols, which are equally authentic in all six official UN languages.Footnote ⁴⁸

Similar to other contemporary ICRC publications,Footnote ⁴⁹ the updated Commentaries are more open to a diversity of legal positions, and acknowledge alternate legal interpretations where there is no consensus. They are produced in English, but will be translated into the other five official UN languages, reflecting the fact that this is a global conversation that should be open to all, and indeed must be if it is to provide the best possible guidance for practitioners around the world.

Audience and reception

Who are the ICRC Commentaries written for? Jean-Marie Henckaerts, who leads the ICRC project on updating the Commentaries, clearly specifies that

To do this effectively, the ICRC Commentaries have sought to be a practical tool, accessible to practitioners who often operate in the midst of hostilities.

Over 150 years ago, when Moynier's commentary on GC I was featured in Louis-Auguste Martin's Annuaire philosophique, it was with the latter's recommendation that his book “be put in the hands of all army and navy officers, and summarized in a few pages for the instruction of the soldier. No one should be able to claim ignorance.”Footnote ⁵¹ Because the treaty was to be applied during hostilities, its dissemination among decision-makers in governments and in the armed forces was always perceived to be of the utmost importance. This most certainly motivated the publication of the early commentaries, as evidenced by their authors’ insistence on the drafters’ pragmatic grasp of military realities.

In the 1950s, the original ICRC Commentaries on the 1949 Geneva Conventions were sent out upon publication to various selected governments. Each copy was addressed to the Ministry of Foreign Affairs, which was in turn invited to share the information with all the ministries and services concerned, starting with health, the interior and national defence.Footnote ⁵² Copies were addressed to National Red Cross and Red Crescent Societies throughout the world. Selected libraries, like the US Library of Congress and the Bodleian Library in Oxford, and key academics and international law practitioners also received copies. The latter category included, notably, Sir Hersch Lauterpacht, Erik Castrén, executive director of the Japanese Society of International Law Juji Enomoto, and the International Law Commission. Finally, the Commentaries were also distributed to a series of law journals. The French edition of the Commentary on GC I, for instance, was sent to fifty-nine journals, including L'Etat et le Droit Soviétique in Moscow, the Boletim da Sociedade Brasileira de Direito Internacional in Rio de Janeiro, and the Annales de la Faculté de Droit of St Joseph University of Beirut. This distribution list was perhaps more restrictive than might be expected given the stated goal of the publication – that is, to be “of service to all who, in Governments, armed forces, and National Red Cross Societies, are called upon to assume responsibility in applying the Conventions, and to all, military and civilians, for whose benefit the Conventions were drawn up”.Footnote ⁵³ However, in the same period, the ICRC also produced other publications for dissemination purposes, many of them more accessible to the general public than a legal commentary. Practitioners and subject-matter experts were a logical priority for the Commentaries.

Representing the practitioner's point of view, Colonel W. Hays Parks of the US Army presented the Pictet Commentaries as “an invaluable reference tool and historical record”, attributing to their editor the “invaluable role of the honest broker”. Hays Parks summed up the Commentaries’ impact with these words:

Other experts have similarly acknowledged the weight that the Pictet Commentaries have acquired over time. For instance Professors Schmitt and Watts call the ICRC Commentaries “leading sources of clarification and background on the Conventions and Protocols for decades”, going on to say that “it is difficult to overstate their influential and nearly authoritative status”.Footnote ⁵⁵ Because of their widespread acceptance, many scholars rely on the Pictet Commentaries as a matter of course, either expressly calling them “authoritative” or without feeling the need to justify the resort to a work of legal literature.Footnote ⁵⁶

The original ICRC Commentaries have thus become quite authoritative over time, and in addition to being regularly cited in academic works, have been cited numerous times by various international tribunals,Footnote ⁵⁷ domestic courts,Footnote ⁵⁸ and UN documents such as the reports of the Human Rights Council.Footnote ⁵⁹ This demonstrates that they serve as a valuable resource, and the hope is that the updated Commentaries will do so even more, as they include many more examples of State practice and refer to diverging viewpoints that may shed light on the law as it has developed since the Conventions were adopted. We can already see tribunals and scholars beginning to rely on the updated Commentaries.Footnote ⁶⁰

The updated Commentaries are not only an academic resource but above all are intended to serve as a practical tool for military commanders, officers, and lawyers and other practitioners who must apply the Geneva Conventions, such as judges, legislators, policy-makers and humanitarians.Footnote ⁶¹ They are written in clear language and strive to clarify ambiguity,Footnote ⁶² while leaving room for nuance and acknowledging different schools of thought on how the Conventions should be interpreted.

Despite questions about how the VCLT's treaty interpretation methodology has been appliedFootnote ⁶³ and whether the Commentaries go too far in suggesting how the law should develop,Footnote ⁶⁴ as well as many strong reactions to the description of the “duty to ensure respect” contained in common Article 1,Footnote ⁶⁵ the updated Commentaries have been well received by the international legal community.Footnote ⁶⁶ As Tania Arzapalo Villón from Peru's Ministry of Justice and Human Rights says:

Others have praised the updated Commentaries for their incorporation of a modern understanding of the roles played by women in armed conflict,Footnote ⁶⁸ as well as how detention is carried out during multilateral operations,Footnote ⁶⁹ among other things. As Major General Nilendra Kumar points out:

Looking beyond the substance of the criticisms (and praise) that have met the updated Commentaries, what is notable is that the legal context itself has changed. As with other ICRC publications like the International Review of the Red Cross, as the debates among scholars became more sophisticated, the ICRC began to engage more meaningfully with external legal experts.Footnote ⁷¹ With the advent of blogs and social media, scholars and practitioners worldwide are able to give almost instantaneous feedback and to engage directly with the project team while the drafting process is ongoing.Footnote ⁷² This is of course also possible at professional conferences and in other “analogue” or “traditional” ways, but new communication tools have enabled this dialogue on a wider scale and in a more inclusive manner. The Commentaries themselves have also been adapted for the digital age; they can be consulted online via the ICRC's online IHL Database of Treaties, States Parties and CommentariesFootnote ⁷³ and IHL mobile app.Footnote ⁷⁴

Ultimately, exchanges with scholars and practitioners allow the Commentaries to be more accurate and therefore more useful, as evidenced by the addition of new analysis to the commentary on common Article 1 in the Commentary on Geneva Convention III to reflect diverging views following intense debate in the legal literature. The fact that more participants are able to engage in these conversations within a shorter range of time means that the process of updating the Commentaries is more dynamic than the drafting of the original Commentaries was. It is not a single legal scholar opining but a network of scholars working together to reflect how the law is being interpreted and applied.

Concluding remarks

There is a clear continuity in the Commentaries’ purpose throughout history. Their methodology, however, has evolved to best fulfil that purpose, in line with the development of the codification of the principles of treaty interpretation and the standards of treaty commentaries as a genre of international legal scholarship.

The ICRC remains in a unique position to put forward such interpretative guidance on the application of the Geneva Conventions and their Additional Protocols. Because of its central role in the development of IHL and because of its humanitarian mandate, it has unparalleled access and insight into the history of the Conventions and their application in armed conflict. Neither the ICRC nor its intended audiences are content to rely on the reputation of a single jurist as a sufficient guarantee of the quality of its Commentaries any longer. Today, its jurists base their analysis on the comprehensive records and resources of its Archives and Library, which document decades of State practice. The ICRC is in a unique position to draw on these records, examine seventy years of the Conventions “in action”, and present its findings in a condensed and accessible way. Ultimately, the authority of the updated Commentaries stems from their quality, which in turn comes from the diligent research carried out by the commentators and the application of the robust treaty interpretation methodology found in the VCLT and applied to each individual article of the 1949 Geneva Conventions and their 1977 Additional Protocols.