In the first installment of our Transatlantic Dialogue Series, Marten Zwanenburg discusses ensuring respect for IHL. Mr. Zwanenburg is the Legal Counsel at the ministry of Foreign Affairs of the Netherlands. The views expressed in this article are the author's own and do not necessarily reflect those of the ministry of Foreign Affairs, any other part of the Government of the Netherlands or ICRC or the other blogs taking part in this series.
Common Article 1 of the 1949 Geneva Conventions provides that “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” The provision is repeated verbatim in Article 1 of Additional Protocols I and III to the Geneva Conventions. The article was adopted by the 1949 Diplomatic Conference without much discussion, suggesting that its meaning is clear. The interpretation of the article, in particular the obligation to “ensure respect”, has however been the subject of continuing debate.
The ICRC has taken what could be termed an “expansive” approach in this debate. It has set out its argumentation for such an approach in the updated Commentary to the first Geneva Convention that was published in 2016. Recent statements from a limited number of States as well as some case law from domestic courts has pushed back on this interpretation, arguing that the obligation has a (much) more limited scope. These opposing views manifest themselves in the approach taken to a number of different aspects of the obligation.
One is the question whether the obligation also applies in non-international armed conflicts. The ICJ in its judgment in the Nicaragua case held that this is the case. A recent judgment by the Federal Court of Canada rejects such an interpretation. The court held in the case of Daniel Turp v. the minister of Foreign Affairs that Canadian case law has determined that Article 1 does not impose any obligation in the context of non-international armed conflicts.
With respect to common article 3 specifically, this view is difficult to square with the text and structure of the Geneva Conventions. As the ICRC commentary to common Article 1 underlines, that article refers to ensuring respect for “the present Convention” and common article 3 forms part of “the present Convention”. With respect to Additional Protocol II and the customary rules of IHL applicable in NIAC, the question is somewhat more complicated. Additional Protocol II “develops and supplements” common article 3, and it could be argued that this means that for parties to the Protocol, this implies that the Protocol is brought within the ambit of common Article 1. This does not explain why Additional Protocol II does not include an explicit repetition of the duty to ensure respect while Additional Protocol I does, however. With respect to customary rules of IHL in NIAC, the question is whether there is sufficient state practice. Although the ICRC Commentary refers to a number of instances of state practice, several of the statements referred to refer expressly to the Geneva Conventions. They thus may not support the existence of a customary rule separate from the obligation in the Conventions. The practice referred to in the ICRC’s Customary International Humanitarian Law Study in relation to an obligation to ensure respect by armed opposition groups is limited.
A second question concerning the interpretation of the obligation to ensure respect, is whether it includes an “external” dimension. In other words, does it only impose an obligation to ensure respect by a state’s own people, or does it require states to ensure that other states or external actors respect the rules concerned?
The wording of common article 1 itself does not provide guidance on this question. As a result, some commentators have turned to the travaux préparatoires. These are quite limited. It has nevertheless been argued that the lack of discussion during the Diplomatic Conference that negotiated and adopted the Geneva Conventions on an obligation pertaining to ensuring respect by others than a State’s own people, suggests that States did not intend to create an obligation to ensure respect by other states or external actors. Rather, it is argued, the obligation was intended to refer only to a State’s own people.
This is however not the only possible way to interpret the ordinary meaning of the duty to “ensure respect.” The ICRC commentary states that the obligation also has an external dimension related to ensuring respect for the Conventions by others that are Party to a conflict. It argues that such a reading is accommodated by the broad formulation of common Article 1. This is not the strongest argument. A more convincing argument in my view is that whatever the original meaning of the provision, it is now broadly understood to include an external dimension. In this view, if indeed the original meaning of common article 1 was limited to a State’s own people, it has since been given a dynamic interpretation by the High Contracting Parties. There are several other examples of provisions of the Geneva Conventions that have been given a dynamic interpretation in this manner.
There is international jurisprudence and state practice supporting an interpretation under which the obligation to ensure respect has an external dimension. Notably, the International Court of Justice (ICJ) in the Wall Advisory Opinion held that “all the States parties to the [fourth] Geneva Convention […] are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law.” What is particularly interesting is that the ICRC commentary to common article 1 refers to practice of states that recently have taken a narrow approach to the scope of that article. In particular, it refers to responses by a number of States to an ICRC questionnaire in 1973, in particular the Federal Republic of Germany, Belgium, the Republic of Korea, the US and the UK. The commentary seems to imply that these responses support an external dimension, although it expressly only refers to them as supporting the existence of a positive element of the obligation (see further below on this element).
If indeed the US accepted an external dimension to the obligation in 1973, this can be contrasted with the statement of State Department Legal Adviser Brian Egan in a speech delivered at the 2016 ASIL Annual Meeting in which he said:
“Some have argued that the obligation in Common Article 1 of the Geneva Conventions to “ensure respect” for the Conventions legally requires us to undertake such steps and more vis-à-vis not only our partners, but all States and non-State actors engaged in armed conflict. Although we do not share this expansive interpretation of Common Article 1, as a matter of policy, we always seek to promote adherence to the law of armed conflict generally and encourage other States to do the same.”
The question arises why some States such as the US feel the need to now advocate a narrow interpretation of the obligation to ensure respect, which appears at least in certain respects more limited than what they previously accepted. The answer to this question is necessarily speculative. I suspect however that two interrelated factors play an important role. One is increasing scrutiny by NGOs and the general public of the conduct of states in military operations and international relations more generally. This extends to litigation by private individuals and NGOs against States, in which common article 1 is invoked or at least referred to. Examples are the Turp case mentioned above, the recent litigation against the UK government concerning arms transfers discussed here, and the Nuhanovic and Mustafic cases relating to the fall of Srebrenica in the Netherlands. This is coupled with an expansive interpretation of common Article 1 by such individuals and NGOs, and also by the ICRC. It is not difficult to imagine that States could see these developments as threatening their military and diplomatic room to manoeuver. In particular, they could see this as placing undesirable limitations on cooperation with local armed forces and groups such as in Iraq and Syria, as well as curbing arms deals. This, in turn, could lead them to push back in the form of advocating a more limited interpretation of common Article 1.
Such pushback can take the form of denying that common article 1 has any external effect at all. It can also take the form of a narrow interpretation of the contents of the obligation. With respect to those contents, a distinction can be made between a negative and a positive aspect. The negative aspect refers to an obligation to abstain from certain conduct, namely not to encourage or aid or assist violations of the Conventions. The ICJ has explicitly derived an obligation not to encourage from common Article 1 in its judgment in the Nicaragua case. Its Advisory Opinion in the Wall can be read as acknowledging that the obligation to ensure respect also encompasses an obligation not to render aid or assistance to violations of the Conventions. Although it can also be read as basing such an obligation on the law of state responsibility. There is some state practice supporting such an obligation.
A difficult question is that of the scope of a purported obligation not to aid or assist. The ICRC once again takes an expansive approach in its updated commentary. It states in particular that:
“In the event of multinational operations, common Article 1 thus requires High Contracting Parties to opt out of a specific operation if there is an expectation, based on facts or knowledge of past patterns, that it would violate the Conventions, as this would constitute aiding or assisting violations.”
The term “expectation” sets a lower threshold than the obligation under general international law not to aid or assist an internationally wrongful act, set out in article 16 of the ILC articles on State responsibility. This article requires at least knowledge on the part of the aiding or assisting State. The ICRC commentary does not offer state practice to support a lower standard, which makes it difficult to accept that this is the applicable standard.
The positive aspect of the obligation, according to the ICRC commentary, means that States must do everything reasonably in their power to prevent and bring violations to an end. In the view of the ICRC, this obligation is not limited to stopping ongoing violations but includes an obligation to prevent violations when there is a foreseeable risk that they will be committed and to prevent further violations in case they have already occurred.
It may be asked what should be understood by “foreseeable risk.” Depending on the interpretation given to this term, this could impose a very high burden on States, particularly in multinational operations. This is reflected in a recent statement by John Reid, head of the office of international law at the Australian Attorney-General’s Department.
A final comment concerns the relation between the duty to ensure respect and general international law. Some have suggested that a narrow interpretation of common article 1 is balanced by the above-mentioned rule in the law of state responsibility imposing responsibility for aid or assistance to an internationally wrongful act by another state. As Brian Egan stated in his abovementioned speech: “As a matter of international law, we would look to the law of State responsibility and our partners’ compliance with the law of armed conflict in assessing the lawfulness of our assistance to, and joint operations with, those military partners.”
This refers to article 16 of the ILC articles on State Responsibility. That article however appears to set a very high standard. Although the article itself refers to the need for the aiding or assisting state to have knowledge of the circumstances of the internationally wrongful act of the aided or assisted state, the ILC Commentary to article 16 suggests that the State must actually have intended to aid or assist that act. This would severely limit the number of situations to which the article applies. A second limit flows from the fact that article 16 only applies in the relation between States. In other words, it does not apply to aid or assistance given by a State to an organized armed group, unless the conduct of that organized armed group is attributable to another state.
Schedule of blog posts:
- ‘The obligation to “ensure respect” for IHL: the debate continues’- Marten Zwanenburg (Legal Counsel at the ministry of Foreign Affairs, Netherlands)- Intercross
- ‘Common Article 3 and Linkages Between Non-State Armed Groups’- Ashley Deeks (University of Virginia Law School) –Lawfare
- ‘ICRC Commentary of Common Article 3: Some questions relating to organized armed groups and the applicability of IHL’- Annyssa Bellal (Geneva Academy of International Humanitarian Law and Human Rights)- EJIL:Talk!
- ‘Transatlantic Workshop on International Law and Armed Conflict Wounded and Sick, Proportionality, and Armaments’- Geoff Corn (South Texas College of Law)- Lawfare
- ‘Wounded and Sick and the Proportionality Assessment’- Jann Kleffner (Swedish Defence University)- Intercross
The joint blog series arising from the workshop follows on from our collaboration in hosting a similar series last year (see here, here and here). The Transatlantic Workshop is organized and sponsored by the Oxford Institute for Ethics, Law and Armed Conflict (directed by Dapo Akande), the Individualisation of War project, European University Institute, Florence (directed by Jennifer Welsh), the Washington DC & London delegations of International Committee of the Red Cross, the Houston College of Law (through the good offices of Geoff Corn), and the Robert S. Strauss Center for International Security and Law at the University of Texas (directed by Bobby Chesney).