28 Jun Respect and Ensure Respect
[Iain Scobbie is the Chair in International Law at the University of Manchester. This post is a contribution in our recent symposium on Ensuring Respect for International Humanitarian Law.]
The understanding and implications of common Article 1 of the 1949 Geneva Conventions have undergone a transformation since its inception. The volume edited by Eve Massingham and Annabel McConnachie, ‘Ensuring Respect for International Humanitarian Law’ (Routledge: 2021) comprises an impressive systematic exposition of the obligations that common Article 1 imposes on States in connection with diverse areas of international humanitarian law and policy.
Common Article 1 of the 1949 Geneva Conventions is laconic and seemingly elliptical in its terms, providing:
The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.
The first arm of this Article appears superfluous, as the duty to ‘respect’ the Conventions is simply a reiteration of the principle of pacta sunt servanda. It is self-evident that States should abide by the conventional undertakings that they make, otherwise what is the point of making them in the first place? On the face of the Article, the second arm, the duty to ‘ensure respect’, is not so apparent. How should States parties implement this, both in terms of required conduct and in terms of the actors encompassed by States’ obligations?
In 1999, Frits Kalshoven published a lengthy article (‘The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit’, 2 Yearbook of International Humanitarian Law (1999) 3) which set out an exacting interpretative analysis based on the travaux préparatoires of common Article 1. This was a riposte to the view set out in the ICRC 1950s commentaries to the Geneva Conventions that common Article 1 not only binds States Parties to comply with their obligations under the Conventions, but also requires them to ensure that other High Contracting Parties do so as well. Kalshoven was sceptical that the validity of this ICRC interpretation corresponded to the intention or understanding of States parties, but noted that it had taken root in some quarters, for instance by Palestinian advocates who argued that States parties had the duty to ensure that Israel abided by the terms of the Convention in the Occupied Territories:
In a discussion I had several years ago with representatives of the Palestinian human rights organization, Al Haq, they showed great surprise at my criticism of the ICRC position, and were not really prepared to take it seriously. (57 n.147)
Kalshoven was of the view that the parties had intended the ‘ensure respect’ obligation was assumed only in relation to their nationals, including a duty of dissemination, but that in relation to the conduct of other High Contracting Parties this could only be a moral but not a legal duty.
Kalshoven’s strictures were influential, as befitting his standing in the field of international humanitarian law. This is exemplified in the International Court of Justice’s 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In paragraph 158 of the opinion, the Court ruled,
It follows from that provision [common Article 1] 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.
Judge Kooijmans in his separate opinion, expressly citing Kalshoven, begged to differ:
I simply do not know whether the scope given by the Court to this Article in the present Opinion is correct as a statement of positive law. Since the Court does not give any argument in its reasoning, I do not feel able to support its finding. Moreover, I fail to see what kind of positive action, resulting from this obligation, may be expected from individual States, apart from diplomatic démarches. (paragraph 50, see paragraphs 46-50)
Despite the Court’s affirmation of the ICRC interpretation of common Article 1, some commentators continued to adhere to a more restrictive view (eg, Tomasz Zych, ‘The Scope of the Obligation to Respect and Ensure Respect for International Humanitarian Law’, 27 Windsor Yearbook of Access to Justice (2009) 251).
The tide, however, has turned. Practice supporting an extensive interpretation of the ‘external’ dimension of the obligation to ensure respect, in short in relation to other States, consolidated and was documented in the commentary to common Article 1 set out in the 2016 ICRC Commentary to the First Geneva Convention.
For example, the 2013 Arms Trade Treaty, a process started by General Assembly resolution 61/89 of 6 December 2006, expressly affirms in its preambular principle five that of ‘Respecting and ensuring respect for international humanitarian law in accordance with, inter alia, the Geneva Conventions’, a point elaborated in Article 6(3):
A State Party shall not authorize any transfer of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.
Further, as the fifteenth preambular paragraph recognises:
the voluntary and active role that civil society, including non-governmental organizations, and industry, can play in raising awareness of the object and purpose of this Treaty, and in supporting its implementation.
Also in 2016, the Norwegian Refugee Council, in the light of the new ICRC Commentary, commissioned Théo Boutruche and Marco Sassὀli to produce an expert opinion on ‘Third States’ Obligations vis-à-vis IHL Violations under International Law, with a special focus on Common Article 1 to the 1949 Geneva Conventions’. This complex and wide-ranging opinion affirmed the validity of an extensive interpretation of the ‘ensure respect’ obligation, rejecting Kalshoven’s narrow textualist approach, locating their analysis in UN and State practice as well as, importantly, general international law, including State responsibility for serious breaches of peremptory norms. They conclude that this is a legal, not simply a moral, obligation on High Contracting Parties to the Geneva Conventions and not simply a discretionary entitlement: failure by a State to take measures to ‘ensure respect’ by others where this is possible applying due diligence standards constitutes a violation of common Article 1 which is independent of the violations committed by the original delinquent State.
Following the 2016 ICRC Commentary, Boutruche and Salὀssi draw a distinction between the positive and negative obligations which might be imposed upon States by common Article 1. Negative obligations of ‘ensure respect’ require simply that States not involved in a conflict should not do certain things in relation to States involved in violations of international humanitarian law, such as encouraging, aiding, or assisting in these breaches, while positive obligations require States to take action.
In their discussion of negative obligations emanating from ‘ensure respect’, Boutruche and Sassὀli consider the example of domestic measures, including decisions and laws, which prohibit or restrict activities that call for boycotts of States allegedly engaged in violations of international humanitarian law. While remaining neutral on such calls and their efficacy, they argue that;
prohibiting private persons to call for proportionate boycotts in view of stopping violations of IHL constitutes in our view a violation of the negative aspect of the obligation to ensure respect for IHL. (32, see 31-33)
This is only one illustration of their general conclusion that States’ obligation to ‘ensure respect’ by others prevents them from prohibiting or limiting actions, including those taken by their own population, that would ‘frustrate full implementation’ of that obligation, providing that these measures are proportionate, aimed at ensuring respect of international humanitarian law, and do not violate fundamental norms of international law.
This takes us to the arms trade. This is discussed in Massingham and McConnachie by Sarah McCosker in her chapter on humanitarian diplomacy who notes that civil society can play a role in scrutinising States’ implementation of common Article 1; and by Eve Massingham in her chapter on weapons. Dr McCosker’s observation points us back to preambular paragraph fifteen of the ATT, and Dr Massingham to the possibility of litigation informed by common Article 1 and Article 6(3) of the ATT.
Civil society organisations should freely be able to advocate, as Boutruche and Sassὀli aver, in support of the prohibition of arms control transfers to specific States where it is suspected or expected that their use will breach international humanitarian law. On the other hand, domestic litigation by civil society organisations in pursuit of this aim presents some challenges which will vary from system to system depending on matters such as entitlement to locus standi, the contours of judicial review, and the ability to implead treaty commitments. It will also depend on the way that the case is framed. To illustrate, consider these two cases decided in recent years by the English Court of Appeal – The Queen on the Application of Al Haq v Secretary of State for Foreign and Commonwealth Affairs (2009), the Palestinian human rights organisation unmoved by Kalshoven’s restrictive interpretation of common Article 1, and The Queen on the Application of Campaign Against Arms Trade v Secretary of State for International Trade (2019).
Both cases could be seen to be aligned with the United Kingdom government’s obligation to ‘ensure respect’, to ensure that armaments should not be exported to be used in armed action that would breach international humanitarian law, but the outcomes were diametrically opposed. The arguments in the Al Haq case were not recounted in detail in the judgment, while this was done in detail in the CAAT case which showed that the Court was aware of common article 1 (para2.13).
The Al Haq case concerned armaments export licenses where the end user was Israel; the CAAT case export licences for Saudi Arabia. The ambit of the cases were, however, different. Al Haq’s case focused on the use of armaments by Israel during Operation Cast Lead and the implications this should have for not only export certificates but wider aspects of UK-Israel relations. The Court rejected the suit and ruled:
While there may, exceptionally, be situations in which the court will intervene in foreign policy issues, this case is far from being one of them. The two strands considered, the nature of the underlying claim, that is condemnation of Israel, and the nature of the claim against the Government, that is a direction or declaration as to what foreign policy it should follow, operate together to demonstrate that the court should not be prepared to consider it. (paragraph 46)
In contrast, the CAAT case was framed much more narrowly, arguing that the United Kingdom’s Secretary of State had not taken into sufficient account Saudi Arabia’s general record in the use of weapons when granting export certificates, knowing that these might be used in Yemen. It was a claim closely focused on the process of making ministerial decisions, and the Court accepted one of the CAAT’s ground of argument with:
The consequence will be that the matter will be remitted to the Secretary of State to reconsider in accordance with the correct legal approach. (paragraph 167)
The lesson is that if civil society organisations wish to resort to litigation to ‘ensure respect’, they must be tactical in their objectives.
I should have written more about the excellent essays contained in this book which inspired me. Reading it caused me to read and reread other commentaries and reflect. The proper function of solid scholarship is to spark off discussion and thought in others. This book made me think, which is the best compliment I can pay to any serious and engaged scholarly work.