On August 12 1949, following the aftermath and horrors of the Second World War, states adopted the four Geneva Conventions to mitigate the brutality of armed conflicts, and to minimise human suffering in such conflicts for years to come. Together, the Conventions established the modern international legal standards applied during times of war which protect persons not taking part in hostilities (including civilians, health workers and aid workers), and those who are no longer participating in hostilities, such as the wounded, the sick and shipwrecked soldiers and prisoners of war.
More than seventy years have passed from the time of their adoption. Since then, a lot has changed. Importantly, warfare itself has changed. Conventional forms of inter-state conflicts, which inspired the origins of the Conventions, are now the exception and not the norm. Instead, wars today are complex and asymmetric—waged predominantly between states and non-state armed groups.
As a consequence of this paradigm shift, critics have questioned the contemporary relevance of the 1949 Conventions whose principal scope of application extends only to inter-state (international) armed conflicts. Similar doubts have also been raised as to the relevance of the Third Geneva Convention—a comprehensive regime governing the humane treatment of Prisoners of War (POWs)—which does not apply to non-international armed conflicts that are more pervasive than ever today.
At first glance, these arguments seem attractive. However, upon closer inspection, we see that the 1949 Conventions, including the Third Geneva Convention, have not only stood the test of time but remain fit for purpose even today. This is the case for the following reasons:
Firstly, the rules enunciated in the four Geneva Conventions, including the progressive rules on POWs, have been applied by parties to non-international armed conflicts through the mechanism of special agreements. In addition, a number of non-state armed groups have made unilateral declarations to express their intention to abide by the rules enunciated in the Conventions including, in particular, the Third Geneva Convention—as in the case of the Algerian National Liberation Front, and more recently, the National Democratic Front of the Philippines. Although such commitments do not guarantee enhanced respect, they have, nonetheless, been utilised by the International Committee of the Red Cross (ICRC)—in its role as the guardian and promoter of the Conventions—as a basis for follow up interventions to improve compliance, and by the international community to hold such parties to their commitments.
Secondly, it must not be forgotten that the practice of taking POWs exists even today. To place this in context, just in the last year alone, the ICRC visited 1274 places of detention which held more than 1 million detainees. This figure alone stands as a testament to the need for a protective regime which ensures that POWs are treated humanely, and in accordance with the inherent human dignity and inviolable quality to which all persons are entitled as human beings.
Due to this expansive scope of application, it is critical for states to undertake timely preparation and planning in order to respect and ensure respect for the Convention. These peacetime obligations include, among others: the adoption and implementation of legislation instituting penal sanctions for violations of the Convention(s); spreading knowledge of the Convention(s) as widely as possible among the civilian population, and, importantly, to train the armed forces in a manner that generates respect for the Convention(s), thus ensuring the prevention and mitigation of human suffering during armed conflicts.
However, this can only be achieved if the rules, as they exist on paper, are put into practice. Much like the changing nature of conflicts, the law does not remain stagnant and continues to evolve and develop by adapting to new challenges and problems. Accordingly, those responsible for the implementation of the Convention must apply it in a manner best suited to today’s conflict environment—in its current context, as informed by subsequent developments in law and practice that have come about in the past seventy-years.
This is precisely the gap that is filled by the recently updated Commentary on the Third Geneva Convention—as part of ICRC’s wider project to update the Commentaries to all Four Conventions—which builds upon the original Commentaries of 1960 that no longer reflect modern developments in the law of armed conflict. Accordingly, the updated commentary reflects current interpretations of the Convention and takes into account operational experience in the interpretation and application of the Convention in conflicts from the past seventy years; subsequent developments in law in the form of new treaties, standards, arbitral awards, and case law—domestic and international; and, finally, the experience of ICRC in respect to the protection of POWs.
Against this backdrop, the commentary lays out in great detail, the developed content of obligations in a range of areas including the use of technology in relation to the communication of POWs with the outside world; standards relating to women, children, and persons with disabilities; privacy and data protection; standards of medical health; and documents instances of compliance which are often overlooked.
Today, the Four Geneva Conventions stand universally ratified and, the rules thereunder, are universally applicable. Undeniably, the Conventions, and the Third Geneva Convention in particular, remain as relevant today as they were in 1949. Instead, focus must be diverted towards improving compliance of the Conventions in a manner best suited to contemporary battlefields.
To this end, the updated Commentary to the Third Geneva Convention serves as a practical tool and a new point of reference for those dealing with detentions today. Armed forces, across the globe, would greatly benefit by integrating the updated standards of the Third Geneva Convention in their trainings, operations, and manuals—ensuring humane treatment to those deprived of their liberty in armed conflicts.