Ensuring Respect for the Geneva Conventions: A More Common Approach to Article 1

[Verity Robson is the Legal Counsellor at the Permanent Mission of the United Kingdom to the United Nations and other International Organisations in Geneva. A longer version of this article first appeared in the Journal for Conflict and Security Law, Volume 25 Issue 1.]

With last month’s publication online of the ICRC’s impressive new Commentary on the Third Geneva Convention, it’s worth revisiting initial reactions to the volumes published in 2016 and 2017, and reviewing how the updated Commentary has accommodated those.

All three of the revised Commentaries put forward the view that common Article 1 – the duty to respect and ensure respect for the Conventions – requires High Contracting Parties to ensure not only the respect for IHL of the persons and groups over which they exercise authority, but also the respect of parties to armed conflict to which they have no other legal relationship (what the ICRC terms the “positive component”). This is a view previously stated most notably by the majority of the ICJ in their Advisory Opinion in the Wall case. Yet the reasoning does not stand up to scrutiny, and the new Commentary finally acknowledges that “there is disagreement” as to whether states have a legal duty – or simply a power – to prevent and end breaches by others.

Ordinary meaning

The starting point for any interpretation of a treaty is, as the Commentary notes, the ordinary meaning of the words used. Nothing in Common Article 1 suggests that the scope of the duty to “ensure respect” extends beyond that which is ordinary when undertaking international obligations: the jurisdiction of each sovereign state, including its armed forces. While it is not impossible for states to agree a secondary obligation by way of guaranteeing another’s performance, it is highly unusual not to have such intention spelled out in the text of the treaty.

Elsewhere in IHL discourse, the basic meaning of the term is used without controversy. For example, a recent book celebrated on this blog argues that one of three criteria for classifying a non-state armed group as party to armed conflict is the group’s ability to “ensure respect for fundamental humanitarian norms”. Both the book’s author, Tilman Rodenhäuser, and Professor Marco Sassòli in his contribution to the symposium marking its publication, use the term “ensure respect” to describe the imposition of discipline by an armed group’s leaders on their own followers. In that context, the ordinary meaning of the term was evidently so clear that no discussion of alternatives (respect by other armed groups?) proved necessary.

Subsequent agreements

Although the phrase is repeated in subsequent agreements between the High Contracting Parties – such as the First and Third Additional Protocols and resolutions of the International Conference of the Red Cross and Red Crescent Movement – that fact alone entails no expansion of its meaning. Quite the opposite: when, in 1973, the ICRC issued a legal questionnaire in the run-up to negotiations of the First Additional Protocol, the response of the UK – one of a group of countries which shortly thereafter proposed the term’s inclusion in that Protocol – was clear that while common Article 1 did not preclude collective action to ensure respect for the Conventions, it did not necessarily impose it.

Most recently, in Geneva last December, the reluctance of some states to have further repetition of the term co-opted as evidence of an allegedly expanded scope led to some of the most fraught negotiations of the 33^rd International Conference. A number of states which had been strong supporters of the intergovernmental process to strengthen respect for IHL, including the UK, opposed another state’s proposal to insert into the IHL text a reference to ‘ensuring respect’, not because of any rejection of that fundamental obligation, but rather to guard against the risk that this subsequent agreement would be taken as evidence of acquiescence in a scope wider than that which has actually been established in law.

The travaux

The travaux preparatoires bear out the term’s ordinary meaning. There is convincing evidence that the origin of the term in the text put before the Stockholm Conference of 1948 was the ICRC’s desire to bring internal armed conflict within the scope of the Conventions, thereby placing the onus on states parties to ensure respect by warring factions within their territories. When one delegation queried, at a negotiation meeting in Geneva in 1949, whether the term was intended to create a new concept in international law, the resounding response was that its scope was limited to each state’s own population. Indeed, the ICRC’s suggestion that the scope could be expanded to include respect by other states received no support.

Erga omnes?

None of this evidence features in the majority Advisory Opinion of the ICJ, which concluded that “every State party to [the Geneva Conventions], 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”. The relevant paragraphs are notoriously opaque, but appear to rely on the erga omnes status of the obligations in Common Article 1: that is to say, the proposition that the obligation to respect the Geneva Conventions is owed by each High Contracting Party to the international community as a whole, in view of the importance of the rights involved.

But to deduce, from the proposition that a duty is owed to all states, that another duty is owed by all states, is to mistake the fundamental relationship between duties and rights. While it is true that duties may be reciprocal, the basic correlative of every duty is a right: if I have promised you – or our group of friends – that I will donate money to charity, no-one but me is under an obligation to ensure that happens, though of course you or another could rightfully choose to remind me. Even if our entire group has agreed to make donations individually, but one friend subsequently reneges, then none of us are obliged to nudge him – though we might choose to do so, or make a sustained effort to influence his character for the better.

In other words, it does not follow, from the fact that an obligation is owed by each state to every other state, that any state is under a duty to prevent or bring to an end a breach by another. It means that each may invoke the responsibility of the state to which a breach is attributable, even if the invoking state is not itself injured.

Responsibilities

Despite the foregoing, High Contracting Parties may not simply ignore breaches by other states of the Geneva Conventions; quite the contrary. As a matter of state responsibility, they must refrain from knowingly aiding or assisting another state in the commission of an act which constitutes a violation of the Conventions. Under the same framework, they must not instruct, direct or control private persons in the commission of breaches. Furthermore, they must not encourage violations of the Conventions by non-state armed groups. And as a matter of policy, of course, a state may choose to exert its political influence in order to prevent or bring to an end breaches by others.

The new Commentary acknowledges that a number of governments have now responded to the perspective on Common Article 1 put forward in the 2016 and 2017 Commentaries to the First and Second Geneva Convention. It will be interesting to see what further evidence emerges before the fourth and final in the series.