Contorting common article 3 : reflections on the revised ICRC commentary
Michael A. Newton
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Georgia journal of international and comparative law, Vol. 45, no. 3, Spring 2017, p. 513-527
This short Essay describes the circularity of support between the ICRC Revised Commentary on the First Geneva Convention issued in 2016 and the Pre-Trial Chambers of the ICC in the case Prosecutor v. Bosco Ntaganda. Its successive sections describe the problematic potential of extending the substantive coverage of Common Article 3 to encompass members of the same armed group who commit criminal acts against one another. In particular, the Revised Commentary fails to address the due process ramifications of an enlarged Common Article 3, even as the development of the text documented by the readily available negotiating record warrants an alternative understanding. Lastly, the ICRC position could indicate a radical shift in the very design of the field of international humanitarian law. This Essay closes by restating the imperative balance between military pragmatism and humanitarian imperatives that are preserved by the careful blending of values within the laws and customs of warfare.