26 Oct Common Article 1, Again
[Verity Robson is the Legal Counsellor at the Permanent Mission of the United Kingdom to the United Nations and other International Organisations in Geneva.]
Accuracy counts. It is therefore necessary to provide a short response to the recent critique by John Heieck of my post on the scope of the duty in Common Article 1 of the Four Geneva Conventions of 1949 to ensure respect for those Conventions.
As I explained there and in more detail here, the ordinary meaning of Common Article 1, borne out by the application of supplementary rules of treaty interpretation, does not entail that High Contracting Parties (HCPs) must ensure the respect for the Geneva Conventions of parties to armed conflict with whom they have no other legal relation. That does not mean that HCPs may ignore the Conventions in their dealings with such parties: to the contrary, international law requires that they must not encourage, aid or assist violations by others; and, depending on the type of violation in view, specific rules of prevention – found outside Common Article 1 – may also apply. Furthermore, HCPs may in any case choose to exert political influence to prevent breaches or bring them to an end.
Heieck objects, however, that I have not adopted the terms of art used by some of those who argue that Common Article 1 is the source of an obligation to ensure respect for the Conventions by other States and non-State actors. For the sake of clarity, my contention is that the “negative” duties with respect to others – to avoid encouraging, aiding or assisting breaches by third States – have their sources elsewhere in public international law, including in the rules of the law of treaties and State responsibility; and that there is no “positive” aspect to Common Article 1 with regard to preventing or ending breaches by others, to a due diligence standard or otherwise.
With regard to the first category, it is an elementary rule of international law that each party must perform its treaty obligations in good faith (Article 26, VCLT). A State cannot be said properly to respect the Geneva Conventions while, at the same time, encouraging other States or non-State actors to breach them, as the International Court of Justice (ICJ) recognised in the Military and Paramilitary Activities in and against Nicaragua case. And, as I explained in more detail here, the rules of State responsibility reflected in Article 16 of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts mean that each HCP is under an obligation to refrain from knowingly aiding or assisting another State in the commission of an act which constitutes a violation of those Conventions.
With regard to the second category of obligations, Heieck’s critique fails to grapple with the absence of law and logic underpinning the position expressed by the majority Advisory Opinion of the ICJ in the Wall case, which cited the erga omnes nature of Common Article 1 as the basis for a duty to prevent and bring to an end breaches by parties to armed conflict. Even assuming that the duty in Common Article 1 to respect and ensure respect for the GCs within a state’s own territory is an obligation owed to the international community as a whole, that status simply provides other states in the international community with the right to invoke its breach, not with the duty to prevent violations by others nor to bring extant violations by those others to an end. (In my original post, I did not presume to draw a line between obligations erga omnes and humanitarian intervention; Heieck’s digression into questions of jus cogens is surprising.)
Even if Common Article 1 did contain a “positive” component with respect to breaches by others, there is no legal basis for importing to it the due diligence standard elucidated by the ICJ with respect to the duty to prevent genocide in the Bosnian Genocide case, as the Court itself made abundantly clear in paragraph 429 of its judgment in that case.
In my original post, I observed that the most recent Commentary on the Third Convention published by the International Committee of the Red Cross (ICRC) acknowledges the existence of disagreement on this topic. In previous Commentaries, that venerable organisation had simply acknowledged that some other commentators had expressed doubts about its own view. Heieck contends that this change in the ICRC’s text was merely an example of ‘elegant variation’, intended to avoid reader fatigue: it would be an unusual reader who required such respite between the publications of 2017 and 2020. The remainder of that section of the Commentary remains the same, including the ICRC’s own interpretation of what this Article entails for HCPs. Yet it has respectfully acknowledged that, in the intervening three years, several governments’ lawyers have expressed a different view.