Emerging Voices: Illegal Vetoes in the Security Council–How Russia and China Breached Their Duty Under Jus Cogens to Prevent War Crimes in Syria

by John Heieck

[John Heieck is a Lecturer of and PhD candidate in Public International Law at the University of Kent, Brussels School of International Studies]

When Russia and China vetoed two Security Council resolutions demanding all sides to the Syrian conflict to cease all forms of violence and human rights violations, many scholars and statesmen were not surprised.  After all, Russia and China had extensive political, military and economic ties with the Assad government.  For those in the realpolitik camp, Russia and China’s vetoes simply reinforced their view that power was king in international relations, and that the Security Council was, and would continue to be, dysfunctional in light of this reality.  However, scant attention was paid to the legal consequences of Russia and China’s vetoes; that by vetoing the aforementioned resolutions, Russia and China breached their duty to prevent war crimes under jus cogens and incurred international responsibility as a result.  In this post, I will endeavor to explain why.

The supremacy of peremptory norms vis-à-vis the exercise of P5 vetoes

The hierarchy of sources in international law is well known.  Formal sources – treaties, custom and general principles – are, by definition, superior to material sources – judicial decisions and scholarly writings.  However, formal sources are also, by definition, inferior to jus cogens, which are embodied in peremptory norms.  Article 53 of the VCLT defines peremptory norms as norms ‘from which no derogation is permitted’.  Peremptory norms therefore have dispositive legal effects: no state may breach, violate or act contrary to peremptory norms without incurring international responsibility.  This standard applies to not only treaties but also the exercise of treaty rights (Nieto-Navia, p. 19), including the P5’s exercise of their Charter right to veto SC resolutions.  As a result, every P5 veto must be measured against the relevant peremptory norms.  If a P5 veto violates a peremptory norm, it is illegal under jus cogens.

The peremptory status of the duty to prevent war crimes

Given their dispositive legal effects, how are peremptory norms determined?  Article 53 provides a two-factor test: first, whether the international community of states as a whole has accepted and recognized the existence of the norm in question; and second, whether the norm in question is non-derogable in character and thus peremptory in status.  To satisfy the first factor, unanimous consent within the international community is not required; according to Alexander Orakhelashvili, acceptance and recognition by ‘a very large majority’ of states is sufficient (Orakhelashvili, 2007, p. 182).  This manifestation may be found in general multilateral treaties, such as the Genocide and Geneva Conventions, and customary international law, as reflected in the Rome Statute.  To satisfy the second factor, the norm must be absolute, unconditional and, according to Orakhelashvili, ‘non-bilateralizable’ in character (Orakhelashvili, 2006, p. 59).  The norm must also exemplify the raison d’être of jus cogens; that is, to protect the overriding interests and fundamental values of the international community of states, which are distinct from the interests of individual states.  These interests include preserving international public order and preventing the commission of international crimes (Nieto-Navia, pp. 13-16).

Both these factors are satisfied when applied to the duty to prevent war crimes.  First, 194 states have accepted and recognized, without reservation (Focarelli, p. 128), Common Article 1 to the Geneva Conventions.  Moreover, not a single state has contested the ICRC’s interpretation of Common Article 1 (Focarelli, p. 128), which gives imperative, legal force to the duty to prevent war crimes.  Second, the duty to prevent war crimes is absolute, unconditional and non-bilateralizable in character, because no two states, or a collection of states, may enter into reciprocal agreements that allow them to circumvent this duty.  In addition, this duty exemplifies the raison d’être of jus cogens because it protects the overriding interests of the international community to prevent the large-scale slaughter of and indiscriminate attacks against civilians and civilian populated areas during armed conflicts.  Because both factors under Article 53 are satisfied, the duty to prevent war crimes is a peremptory norm of international law.  Therefore, a P5 veto of a SC resolution aimed at preventing war crimes is illegal under jus cogens.

The scope and breach of the duty to prevent war crimes

Although the duty to prevent war crimes has arisen to the level of jus cogens, what is the scope of this duty?  The ICJ’s holding in the Genocide Case (paras. 428-438) and the ICRC’s commentaries to Common Article 1 provide the following guidance.  The scope of the duty to prevent war crimes is determined by a three-prong ‘due diligence’ standard that incorporates the principle of ‘common but differentiated responsibilities’ (Milanovic, pp. 685-687).  First, the duty to prevent war crimes is one of conduct, not result.  While a state need not succeed in preventing war crimes, it must do everything within its power that might contribute to their prevention.  Second, the scope of the duty to prevent war crimes is not territorially limited (Milanovic, p. 685); meaning, a state does not have to exercise jurisdiction over the territory in which war crimes are likely to occur.  Instead, the scope of this duty depends on the capacity of the state to effectively influence the relevant criminal actors.  This capacity, in turn, depends on a number of factors, including the relative power of the state, as well as the political, military and economic ties between the state and actors.  Third, the duty to prevent, and corresponding duty to act, is triggered the moment the state becomes aware, or should have become aware, of the existence of a serious risk that war crimes will be committed.  From this moment forward, the state has a positive duty to do everything within its power to prevent war crimes from occurring.

Finally, according to Article 14(3) of the Articles on State Responsibility (ARSIWA), a state breaches its duty to prevent war crimes if war crimes actually occur.  In addition, if war crimes continue to occur, and if the state continues to refrain from acting in a manner contrary to the due diligence standard, the state’s breach continues until the state positively discharges its duty to prevent war crimes.

How Russia and China breached their duty under jus cogens to prevent war crimes in Syria

In applying the law to the facts of Syria, Russia and China had a positive duty to prevent war crimes because all three prongs of the due diligence standard were satisfied.  First, as two of the most powerful states in the world, Russia and China had a duty to do everything within their considerable power that might have contributed to the prevention of war crimes.  Second, Russia and China had the capacity to effectively influence the government forces due to their extensive political, military and economic ties with the Assad family.  And while they lacked the same ties with the opposition forces, Russia and China nevertheless had the capacity to effectively influence even these forces due to their position as permanent members on the SC.  As members of the P5, Russia and China had the ability, and arguably the obligation (Milanovic, p. 686; ARSIWA, art. 41(1)), to cooperate with the other SC members to impose mandatory demands and binding decisions on the opposition – and government – forces through SC resolutions.  As a result, Russia and China had the capacity to effectively influence all parties to the conflict.  Third, Russia and China were aware, or should have been aware, of the existence of a serious risk that war crimes would occur in Syria due to numerous reports from the HRC’s commission of inquiry (located here, here, here, here, here and here).  Therefore, as early as 23 November 2011, Russia and China had a positive duty to prevent war crimes in Syria.

In addition, according to subsequent reports from the commission of inquiry (located here and here), government and opposition forces have committed widespread, systematic and serious war crimes in Syria since the ICRC declared the conflict a ‘non-international armed conflict’ on 15 July 2012.  In light of this fact, Russia and China breached their duty to prevent war crimes in Syria when they vetoed the draft resolutions of 4 February and 19 July 2012, which sought to impose mandatory demands and binding decisions on all belligerent parties to stop committing war crimes.  Moreover, Russia and China neither ceased nor mitigated their breaches when they passed SC Resolutions 2042 and 2043 in April 2012, because neither resolution imposed any demands or decisions on either party.  Instead, the ‘commitments’ described in 2042 and 2043 were subject entirely to Syria’s consent.  Such an abdication on the part of Russia and China of their duty to prevent war crimes was grossly insufficient under the requirements of the due diligence standard, which required Russia and China to do everything within their power to prevent war crimes in Syria.  Because they manifestly failed to do so, Russia and China breached their duty to prevent war crimes under jus cogens and incurred international responsibility as a result.

While Russia and China may fail to perceive their conduct as violating jus cogens, they should nevertheless be concerned about the consequences of their intransigence.  The Syrian civil war continues to threaten the lives of innocent civilians and the stability of the international order.  By abusing their SC veto powers, Russia and China are partially responsible.

http://opiniojuris.org/2013/08/14/emerging-voices-illegal-vetoes-in-the-security-council-how-russia-and-china-breached-their-duty-under-jus-cogens-to-prevent-war-crimes-in-syria/

28 Responses

  1. Two questions. First, on what basis do you claim that Common Article 1 imposes a duty on states to prevent war crimes in a conflict to which they are not a party? The ICRC interpretation of CA1 clearly implies that the CA1 obligation is triggered only when the GC’s otherwise apply to a state — which they do only when a state is a party to an armed conflict. The ICRC interpretation also specifically states that the CA1 obligation does not apply to non-international armed conflicts, which is what the ICRC considers the conflict in Syria (as you acknowledge); the rules governing NIACs are specified solely in CA3.

    Second, what justification do you offer for focusing only on Russia and China’s actions? Why is the US not in violation of its duty to prevent war crimes in Syria by failing to use military force against the Assad government? It is clearly within the US’s power to do so, and you specifically claim that a state “has a positive duty to do everything within its power to prevent war crimes from occurring.” The answer cannot be Art. 2(4) of the UN Charter, because a jus cogens duty to prevent war crimes would trump a provision in a treaty — the Charter — that was inconsistent with its fulfilment.

  2. I’m glad that some people tell the truth. Most of other scholars just internalize the fact that power works in mysterious ways in International Law. Few dare say that the powerful violate international law.

  3. If Russia or China made the argument that their veto was designed to prevent war crimes (and given the violence and alleged chemical weapons usage by the rebels, this is a plausible claim), would this be relevant?

  4. Interesting but possible overambitious. I fully agree with Kevin’s points, and would expand on his second point in a different direction with a question related to Security Council practice: why focus on the formal veto? The only difference between the draft resolutions mentioned and many other proposals which don’t pass the Council (including some from Russia on Syria) is that these draft resolutions were introduced by the US, UK et al. knowing that they would be subjected to a formal veto whereas others were never presented due to the pocket veto, i.e. they were not introduced because the sponsors knew they would be vetoed. 
    If I were Russia or China, the main takeaway from this post would be that I should formally introduce resolutions which I know won’t be agreeable to the P-3 and then claim that they are blocking action. I’m not defending Russia and China. My point is that there is a substantive disagreement in the Council which needs to be addressed on substantive not formal grounds.
    Mihai – Don’t the powerful ensure the law is made in such a way as to ensure their actions are not violations? :)

  5. Thanks for the creative post John, however I think you are you reading too much into Common Article 1. Nowhere in the article is there even mention of the word ‘prevent’ and in the commentary it only makes an appearance in passing in a footnote. To extrapolate this into a jus cogens obligation to prevent war crimes (as opposed to ensuring respect for the Geneva Conventions – which is actually what Common Article 1 says) is a step too far I think. Having said that, there is however an explicit duty to prevent genocide in the Genocide Convention as confirmed by the ICJ…

  6. John’s argument claims that (1) there is a duty for all States to prevent war crimes taking place in a non-international armed conflict to which they are not party and (2) this obligation is a jus cogens obligation. Kevin’s questions above raise doubts that claim (i) is correct. Even assuming that claim 1 is correct, there are also serious doubts that it is correct to claim that an obligation to prevent war crimes is jus cogens obligation. Next week, Manuel Ventura and I will post a piece on EJIL:Talk! about whether the obligation to prevent genocide is a jus cogens obligation and what implications such an argument would have for international law.
    In any event, the factors set out by John for identifying a peremptory norms of international law are not quite correct. The first factor set out is whether the international community of States as a whole has accepted and recognized the norm in question. Actually, the test in Art. 53 VCLT is more stringent. It is whether the international community has accepted and recognised the norm as a norm from which no derogation is permissible. In short the question is not just “is this norm accepted by a very large majority of States?” but “is this norm accepted by the international community as a peremptory norm”. John provides no evidence that the duty he sets out is accepted as such a norm.

  7. What is the causal connection between the Security Council resolutions and the prevention of war crimes?  The Security Council resolutions were condemnatory.  True, they were binding expressions of international law, but in order to conclude that their passage would have prevented war crimes one must assume that demanding that parties to the conflict comply with jus in bello would actually cause them to do so.  However, this is doubtful, since both parties of the conflict are already under a legal obligation to comply with non-derogable jus in bello, and they are ignoring these obligations.  Adding an extra level of SC resolutions to preexisting jus cogens legal obligations would not “prevent” war crimes from occurring, would it?

  8. I still haven’t seen any convincing argument that the duty to prevent genocide is a CIL, let alone a jus cogens.
    It’s one thing to say that a norm (genocide prohibition) is a jus cogens. Yet it doesn’t mean that the supporting norm (duty to prevent genocide) is jus cogens too.
    The ICJ itself rejected similar kind of reasoning in Jurisdictional Immunities Case (2012).
    You, in fact, indicated the incinsistencies of scope of this prevention duty in two international law sources: while Genocide doesn’t care about result (whether or not the atrocity actually occurs), ARSIWA does. This further casts doubt as to whether this duty really is a peremptory CIL.

  9. When Russia and China vetoed two Security Council resolutions demanding all sides to the Syrian conflict to cease all forms of violence and human rights violations
     
    That’s nonsense. None of the proposed resolutions included such wording. They only called on the Syrian government. That was Russia’s main point of critique. 

  10. The general (wilful?) ignorance of the ICJ’s opinion on Common Article 1 is stunning to me. How can you all discard an interpretation of Common Article 1 that has been adopted by the ICJ with an overwhelming majority (13 votes to 2) without even mentioning this fact? In the Wall Advisory Opinion (par. 158-159), the ICJ stated that “that Article 1 of the Fourth Geneva Convention, a provision common to the four Geneva Conventions, provides that ‘The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.’ It follows from that provision that every State party to that Convention, whether or not it is a party to a specific conflict (!), is under an obligation to ensure that the requirements of the instruments in question are complied with.” And it added that, in the case of the Wall, “all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by lsrael with international humanitarian law as embodied in that Convention.” The only genuine dissent on this specific aspect of the opinion was expressed by Judge Kooijmans (at par. 46-51 of his Separate Opinion).
    This is not to say that one has to accept the ICJ’s words as if it was holy writ. But any serious discussion on the topic should at least mention the ICJ’s opinion and state the reasons for discarding it. And I personnally would expect rather good arguments to reject an interpretation adopted by the ICJ with such a majority…
    I am also puzzled by the distinction that is implied in the treatment of the question by some commentators. Does not the expression “ensure respect” for the GC (if one accept the ICJ’s interpretation) entails lawful actions directed at preventing the commission of war crimes? Therefore why should we distinguish between those two?
    But leaving aside those details, I agree with the comments on the difficulty of establishing causal links between the P-5′s conduct in the SC and the violations of IHL on the ground (especially given the difficulty caused by “informal vetoes”). An obligation fot the P-5 not to use their vetoes in specific circumstances where grave violations of IHL are committed would amount to an amendment of the UN Charter (which does not provided for any conditions on the exercise of the rigth of veto). This could maybe (hopefully) happen by way of subsequent practice (as it already happened in the past). But at present it is most certainly not the case.

  11. This is the best academically written article I have read in a long time. Excellent. I tried to get to this point in my thesis but unfortunately was restricted by time. I look forward to more of your writings. 

  12. Etienne,

    Regardless of what the ICJ said, the Wall advisory opinion does not advance the argument made by the author. The opinion is very clear that CA1 applies only to international armed conflicts (of which occupation is a form); it does not apply to non-international armed conflicts. So even if there is an erga omnes obligation on all states to do what they can to ensure the parties to an IAC respect IHL, no such obligation exists with regard to a NIAC.

  13. Kevin,
    I agree that the Wall opinion does not advance the argument made by John Heieck. But is it really so clear that it does not apply non international armed conflicts (although it is clear in the Wall case that the ICJ applied it to a conflict that it considers as an IAC). After all, common Article 3 is also part of the GCs… Or am I missing something?
    Best,
    Etienne

  14. I agree with Etienne Henry that it is surprising to see no mention of the Wall Opinion whatsoever. Yet, I also believe that Etienne is attaching too much importance to it. The obligation to “ensure compliance” (even if we assume it encompasses prevention as well, rather than only addressing violations ex post facto) is not an obligation of result but of effort, as acknowledge by the author. States “merely” have to do “everything within their power to ensure it is respected universally” (Commentary GC III, p. 18, quoted in Commentary AP p. 36).
    In view of the importance of the fundamental rules of IHL, third states may have a legal interest in addressing violations (erga omnes), they may even be under an obligation to do so (as per Wall Opinion, although the Commentaries are rather silent on how this may be done), but it is yet another thing to go as far as to say this obligation is one of a jus cogens character, especially when the Court did not indicate this. It may be true that the rule is CIL, it may even be one that cannot be contracted out by the belligerent parties and adopted to protect overriding interests of the international community, but this does not (yet) satisfy the test of article 53 VCLT and its focus on the perception of the international community as to a norm’s peremptory status.

  15. @Etienne Henry…
    What you’re missing is the fact that not all provisions in the GCs are CIL.
    Just because ICJ says CA1 is CIL, doesn’t make CA3 is CIL too.
    In Wall, ICJ does not address the status of CA3.

  16. I wanna’ add to my comment… To clarify the context.
    That CA3 is usually regarded as something “outside” of the regime of jus in bello established by the 4 GCs of 1949, which is IAC regime.
     
    Therefore when ICJ states that CA1 (or CA2, for that matter) or even (in any case) the whole IAC regime of the 4 GCs is CIL, we should take a step back and hold ourselves before concluding that CA3 is CIL too (let alone jus cogens). Because it might not be.
     
    And as KJH pointed out before, what is happening in Syria is (arguably) NIAC.

  17. Ganda H., CA3 actually ís CIL, but that is still not relevant to the point at consideration here. The question is whether the CA1 obligation (and its reference to “in all circumstances”) can be interpreted as imposing an obligation to third states to ensure respect even the belligerent state is engaged in a NIAC. 
    The Commentaries to GC IV: “The words ” in all circumstances ” which appear in this Article, do not, of course, cover the case of civil war, as the rules to be followed in such conflicts are laid down by [CA3] itself. The expression refers to all situations in which the Convention has to be applied, as described, for example, in Article 2. Disregarding the provisions applicable in peacetime, and Article 3 which relates only to [NIACs], the words ” in all circumstances ” mean that as soon as one of the conditions of application for which CA 2 provides, is present, no Contracting Party can offer any valid pretext, legal or otherwise, for not respecting the Convention in its entirety.” (emphasis added)
    The Commentaries seem to rule out that the CA obligation is applicable in NIACs (Commentaries to GC1 does so even more clearly). I think that the “for example“-part must be understood as showing that the CA1 obligation may also be invoked against a state that does not implement its peacetime obligations, rather than allowing a third state to invoke CA1 in CA3 conflicts. 
     

  18. I first want to thank everyone who took the time to offer constructive criticism of my post.  Receiving such invaluable – and near instantaneous – responses from scholars who I admire and respect is truly gratifying.  I will endeavor to reply to as many of these comments as I can, but I should note at the beginning that this post is, essentially, a summary of a much more substantive argument in a longer piece of work.  Due to the 1,500 word limit, I was forced to whittle down the argument to its bare essentials.  But based on many of the comments above, perhaps I cut too much, or perhaps the post was simply too ambitious (as one scholar said) given the aforementioned constraints.  Nevertheless, your comments were quite helpful in clarifying things in my own mind, and I thank you.
     
     
     
    Kevin Jon Heller:  As usual, Kevin, you cut right to the heart of the matter.  Regarding the two points in your first question, you are correct that relying solely on CA1 and the ICRC’s Commentaries thereto is problematic, at best, and self-defeating, at worst.  As additional support for my argument, I should have discussed the progressive development of the duty to prevent war crimes since the 1950s and 60s (when the Commentaries were initially drafted) under customary international humanitarian law.  See Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules (ICRC 2005), pp. 509-513; Wall Opinion.  Regarding your second question, I did not discuss whether the US breached its duty to prevent war crimes when it failed to use unilateral force against the Assad government because of the ICJ’s holding in the Genocide Case.  In para. 430, the ICJ stated that, if the three prongs of the ‘due diligence’ standard are met, a state must do everything within its power to prevent genocide ‘within the limits provided by international law’.  This phrase has been interpreted by most scholars (see, e.g., Milanovic, p. 687) to rule out unilateral humanitarian intervention, which, as you rightly noted, would contravene Article 2(4) of the Charter.  Thus, I focused solely on Russia and China.  But in retrospect, I should have included this explanation in the post as well.  In any event, thank you for your comments.
     
     
     
    David K:  Your point about the ‘pocket veto’ is a very good one, and one that I have thought about in the context of the P3’s inaction during the Rwandan genocide (which, incidentally, is an issue I am addressing in the larger work I referenced in the introduction).  I suppose I focused on the formal vetoes purely for evidentiary reasons.  Given the increasing practice of the SC to debate these matters in closed-door sessions (which is a disturbing trend, in my opinion), it is quite difficult to gather evidence of these ‘pocket vetoes’.  As such, I focused on the best evidence that was available: the draft resolutions.  Your point about ‘sham resolutions’ is also a good one, and I will have to give that some more thought.  Thanks.
     
     
     
    Dapo Akende:  Thanks for your comments.  I look forward to reading your and Manuel’s post on EJIL:Talk! next week; it sounds quite interesting.  As for your remaining points, I respectfully disagree with you.  First, regarding Kevin’s comments, please see my response above.  Second, I disagree with your characterization of my characterization of the Article 53 test.  Nowhere did I say that the Article 53 test was limited only to whether the norm ‘is accepted by a very large majority of States’, as you contend.  In my post, I clearly stated that the Article 53 test consists of two parts: first, whether the international community of states as a whole has accepted and recognized the existence of the norm in question; and second, whether the norm in question is non-derogable in character and thus peremptory in status.  Following Orakhelashvili’s lead, I then expounded and applied each part of the test to the duty to prevent war crimes, and reached my conclusion that it constituted a peremptory norm of international law.  While you may disagree with my conclusion, I don’t think you can claim that I failed to provide any ‘evidence’ for it.
     
     
     
    Jens Ohlin:  While your point is well taken, the first prong of the due diligence standard states that the duty to prevent is one of conduct, not result.  Were it otherwise, as you seem to suggest, it would be an impossible standard to meet, as the ICJ observed in the Genocide Case.
     
     
     
    Ganda H:  Thanks for your comments; two points come to mind.  First, I disagree with your characterization that the duty to prevent genocide is merely a ‘supporting norm’.  In para. 165 of the Genocide Case, the ICJ stated the following: ‘For the Court both changes — the movement of the undertaking from the Preamble to the first operative Article and the removal of the linking clause (“in accordance with the following articles”) — confirm that Article I does impose distinct obligations over and above those imposed by other Articles of the Convention. In particular, the Contracting Parties have a direct obligation to prevent genocide.’  In other words, the duty to prevent genocide is an independent norm that imposes direct obligations on states.  Second, I disagree that the ICJ’s holding in the Jurisdictional Immunities Case somehow changed – or rejected – this analysis.  If you recall, the issue to which you were referring was whether the violations of jus cogens somehow trumped the customary rule of state immunity.  The Court found no conflict between these two sets of rules because they addressed different issues.  As for your last point on the scope of the duty to prevent genocide, I am not entirely clear on what you are saying.  In the Genocide Case, the ICJ held that causation was not relevant for purposes of duty or breach; however, it was relevant for the issue of damages.  While many scholars have been critical of the Court’s ‘but-for cause’ approach to damages in the Genocide Case (Milanovic has an excellent article in EJIL on this point), this issue is different than the issues of duty and breach.
     
     
     
    Ralph Janik:  I respectfully disagree with your comment about the substance of the two draft resolutions to which I referred in the introduction.  The draft resolution of 4 February 2012 ‘[c]ondemn[ed] all violence, irrespective of where it [came] from, and in this regard demand[ed] that all parties in Syria, including armed groups, immediately stop all violence or reprisals, including attacks against State institutions’.  The draft resolution of 19 July 2012 condemned ‘the armed violence in all its forms, including by armed opposition groups’ and ‘the continued widespread violations of human rights by the Syrian authorities, as well as any human rights abuses by armed opposition groups’.  In addition, the draft resolution ‘[d]emand[ed] that all parties in Syria, including the opposition, immediately cease all armed violence in all its forms, thereby creating an atmosphere conducive to a sustained cessation of violence and a Syrian-led political transition’.  While it is true that both resolutions placed more demands on the Syrian government forces, these forces were, at the time, responsible for the lion’s share of the mass atrocities in Syria, according to the numerous reports from the HRC’s commission of inquiry that I linked in my article.
     
     
     
    Thanks again to all of you for your comments.  You have given me much to ponder.
     
     
     
    Kind regards,
     
     
     
    John         
     

  19. RJ1983 –> In your quotation of the commentaries, the author is dealing with the scope of the terms “in all circumstances” in the framework of Common Article 1 generally. He is no longer dealing with the specific meaning of “ensure respect” but of the question of the application of the Convention. He is basically restating that states do not have to apply all the provisions of the GC in situations of NIAC because Common Article 3 was specifically designed for those situations and Common Article 2 delimits the case where the rest of the provisions are applicable, i.e. in cases of IACs. But Common Article 1 precedes Common Article 2 and Common Article 3 so there is no systematic or contextual ground for excluding Common Article 3 from the scope of Common Article 1.
    But, more persuasively, -and even if your reading of the commentary was correct-, according to a literal reading of Common Article 1, there is no reason to exlude Common Article 3 from the scope of the obligation to “ensure respect for the present Convention.” Otherwise, the drafters would have said something like “ensure respect for the provisions of the Convention that applicable to armed conflict of an international character.” This textual interpretation is arguably in accordance with the purpose of the GC.
    In conclusion, as regards IAC, States parties have the obligation to respect and ensure respect for the whole GC except Common Article 3, whereas as regards NIAC, States “only” have the obligation to respect and ensure respect for Common Article 3. I think that this was meant by the commentator, at least if you read the original French text:

    “La Convention doit s’appliquer en ‘ toutes circonstances ‘. Que faut-il entendre par là ? [...] Par l’article 3, commun aux quatre Conventions, les États signataires s’engagent d’avance, en cas de conflit non international, à respecter sinon la Convention, du moins un minimum de règles défini dans le dit article.”

  20. Thanks, Etienne, for your detailed comments.  You are right: I should have underscored the Wall Opinion more (among other things).

  21. You are welcome, John! I was not aware of the words limits in the post…
    Tanks to you for this very interesting post on such a stimulating topic (although I would be less optimistic than you as regards the actual state of positive law…)!
    Best,
    Etienne

  22. Etienne Henry, thank you for your comment (and a good reminder to learn French too). I had read the Commentaries differently, but I would like to mention my reasoning as I am still of the opinion that the Commentaries and context of CA1-3 may reasonably be interpreted in a way that the obligation to ensure respect does not cover NIACs.
    The commentator is indeed no longer dealing specifically with “ensure respect”, but I understood it as saying that the dual obligation (respect when applying it, ensure respect) does not apply in all circumstances. In other words, the dual obligation (which includes to ensure to respect) does only apply in cases covered by article 2, and not in cases covered by article 3. A reason for that might be found in the fact that states were hesitant to regulate their “internal affairs”, were only willing to regulate what they are supposed to “respect” in CA 3, but without extending the CA1 obligation to ensure respect to NIACs. 
    That CA1 appears before CA3 does not necessarily lead to your conclusion. It might equally be argued that the CA1 obligation only becomes applicable once a state is engaged in an IAC (then it must “respect”) or once a third state is facing an IAC (then it must “ensure respect”) as it is the CA2 threshold that triggers the application of the four Conventions.
    That being said, I don’t think the Commentaries are unequivocal enough to support either position. The ICJ in Nicaragua hinted at applying CA1 to NIACs, yet it only spoke of an obligation not to encourage violations of CA3, but without making clear whether the encouragement of violations would violate the duty to respect or rather the duty to ensure respect, and, in any case, the ICJ did not refer to the duty to prevent.

  23. John,
    Many thanks for your response and also for your post, which has clearly generated much interest. I do believe that I mischaracterised your description of how to identify a norm of jus cogens. You set out two factors – acceptance of the norm by a very large majority of states; and the norm being unconditional, absolute and non-bilateralizable. My point is that the VCLT does not describe two separate factors but only one: acceptance of the international community of States as a peremptory norm. It is not that the norm must be accepted by a very large majority and then through some separate process we work out that the norm is unconditional or absolute. You have to show that States accept the norm as peremptory.
    The Wall Advisory Opinion, discussed by others, may or may not provide support for the view that the Geneva Conventions Common Article 1 (CA1) obligation to ensure respect includes an obligation to prevent. However, it certainly provides no support for the view that the CA1 obligation is peremptory. Indeed to the contrary, in para. 159, the ICJ states that  obligations arising from CA1 are to fulfilled “while respecting the United Nations Charter and international law”. So that obligation does not prevail over other obligations under international law but is subject to those other obligations. This hardly sounds like a jus cogens norm.

  24. John,
    In my latest response to you I intended to say that “I do not believe that I mischaracterised your description of how to identify a norm of jus cogens

  25. Dear John,
    indeed, I had remembered the draft resolution text wrongly (also due to Russia’s criticism regarding their obvious bias against the Syrian government). Please excuse my harsh wording. It mainly resulted from my frustration that once again, Russia and China are blamed although the Syrian issue goes well beyond what international law is able to handle. This is a civil war, after all. No fancy findings on ius cogens, human rights violations and treaty-based obligations will change the fact that it is one side (the US, Saudi Arabia and its other regional allies) against the other (Iran, Russia) fighting/supporting here. One could equally argue that the US and the other states that support the so-called opposition are violating ius cogens obligations as construed by you because of this active involvement. If not for their support, the war would have been over ago.

  26. John, 
    Thanks for your response to all the points. You’ve really stimulated discussion. One advantage of these draft resolutions being put to a vote is there is an evidentiary record in the statements following the vote. The 4 Feb. 2012 record (S/PV.6711) is particularly interesting to the point being discussed between you and Ralph as Ambassadors Churkin and Lyall Grant went into incredible detail on what Russia would’ve liked to have seen differently and what accommodations the sponsors made. Also interesting is the contrast in statements between Amb, Lyall Grant denying suggestions the resolution sought regime change and Amb. Rice whose remarks could be interpreted as pushing for such change. 
    The key point is what you say in response to Ralph – at the time (though things have changed since), it was clear that violations were overwhelmingly being committed by the Government, and a resolution which would’ve sought “balance” in treating the sides equally would’ve been worse than no resolution at all. 

  27. “a resolution which would’ve sought “balance” in treating the sides equally would’ve been worse than no resolution at all. ”
    why? In asymmetric conflicts, it is only natural that the stronger side committs more violations of IHRL and IHL; it is almost inherent since the weaker side relies on its weakness and tries to turn it into an advantage. In these guerilla-efforts, they also rely on the international community to act in their favour for exactly the reasons given by you – talking about wrong incentives! 

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