Written by Knut Dörmann, Head of the Legal Division, ICRC & Jose Serralvo, Legal Adviser in the Legal Division, ICRC.
The International Committee of the Red Cross (ICRC) is convinced that international humanitarian law (IHL) continues to strike a judicious balance between the principles of humanity and military necessity. There is no doubt that compliance with existing rules of IHL would significantly alleviate the suffering of the victims of war. Unfortunately, contemporary armed conflicts – like those in Syria, South Sudan or Ukraine, to name but a few – illustrate how lack of respect for the law has become one of the biggest challenges facing IHL today. It is against this backdrop that the obligation to “respect and ensure respect” in all circumstances, enshrined in Common Article 1 to the 1949 Geneva Conventions, and Article 1 of the 1977 Additional Protocol, becomes of critical importance. In a recent article in the International Review of the Red Cross, we discussed this legal obligation in detail; this blogpost provides a snapshot of our argument.
Pursuant to the obligation to respect the Geneva Conventions, States must do everything they can to guarantee that their own agencies abide by the rules of these treaties – and, arguably, by the whole body of IHL. This essentially reaffirms the basic principle of pacta sunt servanda—the obligation to abide by treaty commitments in good faith. However, Common Article 1 also introduced an undertaking to ensure respect, which, in turn, consists of an internal and an external component. The internal component implies that States must ensure that the Geneva Conventions are respected not only by its armed forces and its civilians and military authorities, but also by the population as a whole. On the other hand, the obligation to ensure respect, in its external aspect, means that third States not involved in a given armed conflict have a responsibility and duty to take action in order to safeguard compliance with the Geneva Conventions by the parties to the armed conflict. This external obligation applies with regard to both international and non-international armed conflicts.
Some have argued that nothing in the travaux préparatoires of the Geneva Conventions support an interpretation of Common Article 1 whereby third States have an international legal obligation to ensure respect for the Geneva Conventions in armed conflicts to which they are not a party. That said, both at the 1948 Stockholm International Conference and at the 1949 Diplomatic Conference, the ICRC emphasized that the High Contracting Parties “should not confine themselves to applying the Conventions themselves, but should do all in their power to see that the basic humanitarian principles of the Conventions are universally applied.” This approach, which was not directly contested during either of the two conferences, was in fact consistent with the Zeitgeist of the late 1940s. Against the backdrop of the atrocities that took place during the Second World War, and as shown also by Article 1 of the 1948 Genocide Convention, States were eager to avoid the resurgence of the same scourges. However, despite the admittedly sparsely documented drafting history, over sixty years of subsequent State practice – including from international tribunals and intergovernmental organizations – indicates that States consider themselves bound by the obligation to “ensure respect” vis-à-vis armed conflicts in which they do not participate. In other words, States have acknowledged through various efforts undertaken in multiple armed conflicts that they have an international legal obligation to influence the parties to armed conflicts, so that they abide by the rules of IHL. The following is illustrative of action that can be and has been undertaken:
- Individual or collective condemnations, including through resolutions from the Security Council, the General Assembly or regional organizations.
- Economic sanctions or asset freezes.
- Non-renewal of trade privileges or agreements.
- Restrictions or ban on arms trade and military cooperation.
- Expulsion of diplomats or severance of diplomatic relations.
The notion of ensuring respect goes beyond a negative obligation to refrain from encouraging the parties to an armed conflict to violate IHL. In addition, Common Article 1 establishes not only a right to take action, but also an international legal obligation for States to take steps to ensure respect for the Geneva Conventions. In that sense, it goes beyond the mere entitlement already contained in Article 48 of the Draft Articles on State Responsibility. Common Article 1 includes a positive obligation to bring ongoing violations to an end and to prevent IHL violations before they take place. Both of these undertakings must be considered obligations of means, i.e. obligations to make every effort to reach a specific result, even if this result is not attained in the end. In that sense, all States have the duty to exercise due diligence in choosing appropriate measures to induce belligerents to comply with the Geneva Conventions. In addition, States with close political, economic and/or military ties to one of the belligerents have a heightened responsibility and stronger capacity to ensure respect for IHL by their allies.
The obligation to put an end to ongoing IHL violations is not only part of Common Article 1, and Article 1 of Additional Protocol I, but it is nowadays also considered a duty under customary IHL. As stated in Rule 144 of the ICRC’s Customary IHL Study, States must “exert their influence, to the degree possible, to stop violations of international humanitarian law.” Article 89 of Additional Protocol I to the Geneva Conventions imposes a similar duty when it provides the following:
“In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.”
As mentioned above, the obligation to ensure respect also includes a duty to prevent IHL violations from happening in the first place. States endorsed this interpretation of Common Article 1 in 2007 during the 30th International Conference of the Red Cross and Red Crescent, where they stressed:
“the obligation of all States to refrain from encouraging violations of international humanitarian law by any party to an armed conflict and to exert their influence, to the degree possible, to prevent and end violations, either individually or through multilateral mechanisms, in accordance with international law.”
Prevention is a key part of the Common Article 1 obligation to “ensure respect.” This can be seen, for instance, in the recent adoption of the Arms Trade Treaty (ATT). As early as 1998, State representatives that gathered in Oslo to discuss the challenges raised by the proliferation of small arms considered Common Article 1 key to encouraging more responsible arms transfers. Eventually, States acknowledged Common Article 1 in the ATT itself – indeed, the preamble of the ATT identifies the duty to respect and ensure respect for IHL as one of the fundamental principles pervading the whole instrument.
Of course, under Common Article 1, States are free to choose among the different measures at their disposal in seeking to ensure respect for IHL. However, any action taken to fulfill Common Article 1 obligations must comport with the UN Charter. For example, since the obligation to ensure respect is not part of the jus ad bellum, it cannot serve as a legal basis for the use of force. On the other hand, measures falling short of the use of force, such as diplomatic pressure or coercive sanctions, can and should be considered by third States not involved in a given armed conflict if they might contribute to improving parties’ compliance with IHL.
Further State practice and academic research is still needed to elucidate the scope of this international legal obligation. Yet, it is clear that greater acknowledgement of Common Article 1 obligations, and the equivalent under customary international law, can help improve respect for IHL. In a world ravaged by armed conflict, and with non-compliance amongst the most critical contemporary challenges to IHL, the importance of this duty should not be underestimated. Third States, thanks to their (often) more neutral stance, are in a privileged position to ensure that IHL rules are universally respected.