Reading the Updated Commentary on GCIV in an Imperial Moment

The updated ICRC Commentary of the Fourth Geneva Convention (GCIV) is a monumental, if not timely, achievement. At its core, it provides a set of very useful legal interpretations on an enormous body of rules and provisions, reflecting a gigantic amount of work by an adroit ICRC team, supported by numerous experts from both academia and practice. Studying the Convention’s origins in such level of depth, while also bringing such a massive project, within a relatively short amount of time, to a successful conclusion, is an extremely difficult task. The result is an impressive and helpful contribution to the study of IHL, especially at a moment when the protection of civilians in armed conflict is, both regionally and globally, of enormous concern, not least because of multiplying non-international armed conflicts, preparations for new international armed conflicts (IACs), and the impact of brutal interstate occupations – in Palestine, Ukraine, and elsewhere – amidst a changing global order.

The EJIL: Talk! editors have asked me to reflect on colonialism in relation to the updated Commentary. For some readers, this may seem like a secondary, almost peripheral concern. Beyond empire’s momentum in our own time – through the proclaiming of new spheres of influence, resource-grabbing, or gunboat diplomacy, they should not forget that the ICRC Commentary tradition itself emerged within, and helped perpetuate, an imperial legal order: the first Commentary was written by Gustave Moynier, who was deeply implicated in the Congo Free State; and the previous Commentary on GCIV, first published in French in 1956 (and in English two years later), was written by Genevan men for an imperial world order in which vast parts of the globe were still under colonial rule. GCIV itself was drafted in 1949 primarily by White-majority delegations, with limited input from (nationalist) Chinese, Indian, and Latin American representatives. Already in 1955, the year before the previous Commentary was published, the leading editor (and former drafter) Jean Pictet had suggested that the ICRC still had a civilizing role to play in a changing imperial world order, with new anti-colonial rebellions breaking out across the globe and the ICRC’s operations, self-identity, practice, doctrine, and conflict classifications changing significantly in the process.

In other words, there is plenty of reason to analyze how the updated Commentary, almost seventy years later, approaches the questions of empire, colonialism, race, and their implications for treaty interpretation. I approach these questions (admittedly too big for a short blog post) through three points: the Commentary’s explicit (non-)treatment of race and colonialism; its epistemological design; and some substantive areas of GCIV’s discussion. The contemporary effects of colonialism, which can be defined as a racialized system of foreign domination and control over territories and peoples that denies self-determination and is justified through law and other unequal power relations, are difficult to disentangle from the Convention’s own racial and imperial legacies, shaped as the treaty was by powerful imperial drafters who wove through its structure various hierarchies, between and among (non-)protected persons, and excluded the weapons of starvation and indiscriminate bombing. Again, these questions are, analytically, far from marginal and could hardly be more relevant today, given the re-emergence of various imperial and colonial logics in our own time, with non-Charter-sanctioned uses of force, prolonged occupations, civilian targeting, and settler colonial violence in different parts of the world.

The 1956 Commentary was primarily designed to provide treaty interpretation for major states in the case of an East-West confrontation while placing the ICRC, together with the Swiss Federal Government, as the treaty’s guardian and repository at the center of the IHL’s interpretative field. Among other things, it left relatively little legal space for other treaty regimes, international organizations, regional actors, and NGOs, and it tended to reinforce humanitarian law’s position as lex specialis. Fortunately, the updated Commentary clearly moves away from many of these state-centric legacies. This is as much a reflection of where IHL and the ICRC have come from, and where the organization sees itself now, as it as a specific doctrinal intervention by a still Swiss-dominated humanitarian actor; in several respects, it can be read as a work of, and for, a postcolonial world order, which now is facing one of its most serious tests since its inception in the 1960s.

The deeper question for the Commentary’s authors was, it seems, how to update an interpretive document, and, indeed, an underlying treaty text, that was made for a fundamentally different inter-national political and legal order – and now repurposed for one going through systemic changes. Just to remember: this pre-existing order deliberately marginalized and took away legal personality from most postcolonial actors and, in particular, armed groups operating in asymmetric contexts, as widely documented in the literature cited. For the authors, the question was not simply to “modernize” existing legal interpretation and in line with the other updated Commentaries, but how to articulate a humanitarian interpretation that enables rather than obstructs relief and protection, including for the ICRC’s own operations globally, even where some major states in 1949 had sought the very opposite: preserving sovereign discretion to block relief and place captured individuals in a semi-state of exception between the Conventions, rather than under GCIV or GCIII.

Indeed, in my view, because the Convention’s text has not changed, the more relevant question is not the most familiar one – how legitimate is it to say that a treaty means something legally today than it was not understood to mean in 1949, but rather how the updated Commentary deals with the treaty’s legacies, particularly those parts that were meant to support, rather than destabilize, the imperial foundations of a global legal order. And what reasons are offered in the updated Commentary for certain interpretive shifts (errors or omissions in 1956; new facts; evolving state practice; judicial decisions; subsequent treaties, including the Additional Protocols)? Even more fundamentally, it raises the question of the extent to which it actually grapples with the underlying issue: the legacies of empire and racial hierarchy as formative parts of the Convention’s drafting and early interpretation. These issues are not just relevant for those interested in origins but also have a direct impact on operations and treaty interpretation today: on humanitarian access, food security, the right of communication of detainees, third-party supervision, armed groups, and so on.

On the most obvious question – how race and colonialism are addressed explicitly in the updated Commentary – the answer is clear: only minimally, if not highly implicitly. This seems somewhat puzzling, given decades of extensive, and by now mainstream, scholarship on these questions, much of which is generously cited in the Commentary but not really substantively engaged with, as far as I could see. Nor does it offer a robust answer to current debates about international law’s double standards with regard to civilian protection, to which the ICRC itself has implicitly alluded in various public statements. I had trouble finding many reflections of these stakes in the text; even the now widely accepted claim that IHL has a colonial past appears difficult to articulate. Apart from a liberal non-discrimination focus connected to Nazi empire and anti-Semitic racism, I found very few direct references to colonialism, empire, race, or the international legal order’s colour line as such. That is both puzzling, given that the updated Commentary was written in a post-Black-Lives-Matter-moment that hardly left the ICRC untouched, and because former ICRC legal experts from the Global South have addressed this issue before, and unsurprising, given that that the project featured hardly any of such experts with knowledge of racial and colonial logics. Even for Common Article 3 – where “colonial” is explicitly mentioned in the treaty text’s history – the issue is not much developed, nor is mention made to the crucial impact of the wars of decolonization – in Indonesia, Indochina, and Palestine – and the imperial anxieties in response to them on its formation.  

If the explicit discussion of empire and race is very limited, the updated Commentary’s epistemological interventions may suggest a step forward. Unlike its predecessors, it draws on expertise from within and outside the ICRC, with contributions and reviewers from an astonishing range of fields, regions, and backgrounds – including Palestine’s (and now US-sanctioned) Al-Haq, an exceptional number of women, and an impressive peer-review system. By any standard, this is a remarkable achievement, just at is commendable that innovative academic research in the field, including critical and Third World approaches to international law, is cited and that contributors’ individual roles are more explicitly acknowledged. These and other epistemic changes matter for how the Commentary develops treaty interpretation; treats customary law and state practice; seeks to attenuate the effects of race and colonialism more stealthily; how it recognizes the relevance of legal regimes other than IHL (including IHRL, ICL, etc.); and how it registers the roles of humanitarian and legal actors other than the ICRC. Equally productive, it also supports a more open attitude toward diverging views, rather than imposing a single authorized view from Europe’s metropole. And even more significantly, the updated Commentary rightly emphasizes, again and again, that the Conventions are “products of their time” and reads them in conjunction with other, subsequent legal developments.

In this regard, I found it striking that the updated Commentary is explicit that some of the Convention’s gendered and disability-related elements require more than just reinterpretation. For instance, certain rules, it bluntly states, “do not reflect contemporary standards,” think of the stigmatization of sexual violence as a so-called attack on a woman’s “honor” rather than a crime and/or violation of the woman’s personal integrity and dignity. So, if the Commentary admits itself that it is intended to confront outdated, gendered views rooted in a patriarchical Weltanschauung, why is a parallel interpretative move less visible with respect to empire and racial hierarchies, which were conceptually at least equally formative for GCIV, for key issues like the rights of detainees, derogations, humanitarian access, relief, stateless persons, and more?

A more outspoke analysis of the impact of such logics on the treaty’s making could have further advanced the Commentary’s key objectives. If it had adopted a more focused lens on the role of imperial states and wars of decolonization (rather than European civil wars) in the making of CA3, it would have been much easier to explain, and contest, the text’s broad and outdated state-centric discretion in classifying and determining CA3’s application; if it had been more forthright about imperial logics leading to the exclusion of the weapons of starvation and indiscriminate bombing, IHL advocates today would be better placed to understand why these legacies continue to persist; if it had explicitly acknowledged the pre-existing racialized outlook of the laws of war, it would have been easier to explain why imperial drafters considered proposed bans on racial discrimination “impracticable,” why so-called racial riots were excluded from the treaty’s scope, or why non-European revolutionary movements, such as the Indonesian Republicans, who frequently invoked humanitarian law in their struggle for self-determination, were excluded from the drafting process in 1949; and a racial lens would also have helped to explain why the drafters prohibited racial segregation while leaving Jim Crow and colonial laws untouched. Even more critically, these issues were also central to the concerns raised by the World Jewish Congress in this very same period, drawing on the recent experience of Nazi racial violence: Jewish survivors urged that the Convention be applied to racial pogroms – and, in effect, anti-colonial “emergencies,” that previously ignored categories of civilians, such as political prisoners and those with disputed nationality status (think of German Jews post-1935), be brought within its scope, and that a monitoring provision be introduced to prevent any civilian from falling between the Conventions. Their explicit goal was to create a safety net for stateless persons and others explicitly removed from GCIV Article 4’s draft text, but these calls were ultimately ignored by dominant imperial drafters.

If you flip perspective to GCIV’s reinterpretation during the making of the Additional Protocols in the mid-1970s, these problems come into even sharper view. By then, especially state and non-state actors from the South and East were openly contesting the Conventions’ racial and colonial legacies: many explicitly characterized GCIV as a product of European colonial thought. North Vietnamese drafters questioned its silence on the weapon of starvation; Arab states (formerly) under Israeli occupation challenged the discretionary powers it gave to occupying powers; and national liberation movements (including Palestine’s PLO) objected to its denial of their legal personality, demanding recognition of their struggles for self-determination as IACs. Against this background, the updated Commentary may give the impression that these most formative debates, across the entire twentieth century, on empire and race and their legacies had limited interpretive weight for GCIV and its subsequent treaty interpretation, and that their ongoing effects on contemporary armed conflicts are less consequential than other issues examined more deeply in the text.

In the Commentary, such logics are often subsumed, implicitly, under generic rubrics like “military and security considerations,” or as part of an overarching metaphor of balancing humanity with military necessity, without really telling us what role empire, colonialism, or race played in formatting these concepts. Had the updated Commentary more explicitly changed perspective to the voices of those who knew colonialism and racial domination best, it might have been slightly better positioned to register alternative visions and capture the treaty’s imperial logics more clearly than was possible for some of those closest to its drafting. Although the Commentary’s use of archival research – primarily from the ICRC’s own archives in Geneva – is a welcome element, the limited reflection on its own institutional biases I encountered, combined with the continued framing of GCIV as chiefly a product of WWII, risks reinforcing a Geneva-centered perspective that underestimates the Convention’s colonial origins and the formative impact of the early Cold War, wars of decolonization, and setter violence. More broadly, it could have been analytically liberating to treat “the drafters’ intent” less as a single, protective “purpose” and more as a legal plurality of intentions, as the Commentary does in some places, though not always consistently, I felt. Such an account could also strengthen the Commentary’s openness to legal pluralism while at the same time pushing back against regressive readings that were widespread in 1949.

Regardless of these reservations, the updated Commentary often reaches interpretations that subtly limit the discretionary powers historically sought by imperial occupiers, and this is one of its important strengths. For example, the authors rightly limit the extra-judicial derogations’ temptations of Article 5 – and that are still used today in the Middle East – by placing it within the Convention’s broader protective structure and in relation to customary law and other post-1949 legal developments emphasizing humane treatment and access. In relation to Article 23 – on humanitarian relief, the Commentary is laudably direct in acknowledging its harmful historical outcomes as a result of the decisions taken in 1949 by imperial blockading powers to destroy ICRC proposals to break the weapon of starvation: it explicitly notes that the discretionary clause in paragraph 2 “has been used to block the passage of relief consignments, with disastrous results” – an implicit reference to its use by the Nigerian Federal Government against Biafran civilians in the late 1960s, and it diminishes the article’s importance in light of customary law developments and API’s adoption of Article 70. These well-observed claims regarding the destructive colonial legacies for lives of color are important, certainly for those actors now trying to either legitimate or push back against legal reasoning that excessively curtails live-saving humanitarian relief through Article 23.

In other words, the updated Commentary is a real accomplishment on various levels, and in several respects, a key doctrinal and practical resource, but it also raises a critical, more forward-looking question: if a fundamental reorientation is methodologically possible – most clearly in relation to gender, the question is how long the position of marginalizing the questions of race and colonialism, while stealthily attenuating their effects, can remain tenable. As the ICRC now turns to updating the Commentaries on the Additional Protocols – which were drafted with far greater postcolonial participation and widespread, if not explicit concern among the drafters, some of whom were (former) anti-colonial guerrillas, with empire and racial hierarchies of 1949, this question becomes ever more urgent. At a bare minimum, it suggests that time has come to interrogating IHL’s colonial origins more consistently, much as the successors of the drafters of 1949 tried furiously in the mid-1970s, and to avoid repeating the imprecision of largely bracketing out race and empire for the 1949 settlement only to reify them through its systemic critiques in the 1970as framed as a corrective “reaffirmation and development.” In an increasingly imperial world, IHL advocates cannot afford not to think seriously about these logics.

Note: This post forms part of a joint symposium with the International Committee of the Red Cross (ICRC) and the editors of Just Security, sharing expert contributions on selected topics addressed in the updated ICRC Commentary on the Fourth Geneva Convention.