In this second instalment of the mini-series on the ICRC’s Updated Geneva Convention Commentaries, John Reid, Head of the Office of International Law at the Commonwealth Attorney-General’s Department, highlights the importance of State practice in understanding the common article 1 obligation to respect and ensure respect for IHL.

At the outset, I would like to acknowledge the outstanding work of Jean‑Marie Henckaerts and his team in producing the Updated Commentary on the First Geneva Convention, 2016. It is no easy feat to draw together, in a singular comparative analysis, nearly seven decades of State practice of interpretation and application of the First Convention.

Henckaerts’ insightful contribution to this blog series, Common Article 1: A lynchpin in the system to ensure respect for IHL, focusses on the evolving interpretation that the Updated Commentary brings to the important obligation of state respect for IHL contained in the first Common Article. I would like to provide a State’s perspective on that obligation, and on the mechanics of interpretation, which the ICRC has applied. I would suggest that promoting further transparency among States concerning actions taken in armed conflict, and encouraging public discussion of the legal justifications for those actions, in turn could foster accountability and greater compliance with the law. In fact, such engagement by States would be a more effective means of ensuring compliance than some of the matters raised by the Updated Commentary.

Government legal advisers frequently avail themselves of the Commentaries in advising their governments on IHL. In that sense, this Updated Commentary forms an essential and welcome addition to the legal advisers’ toolkit. The frequency with which States refer to the Commentaries in interpreting their obligations demonstrates not only the practical utility of this work, but also the special legitimacy that States, including Australia, accord to the ICRC. This legitimacy derives in no small part from the ICRC’s commitment to engaging with States to collect evidence of practice. As acknowledged in the ICRC’s foreword, the Updated Commentary is based, inter alia, on interpretations by States over the past decades.

As was recognised by the International Law Commission in Chapter V of its 2016 Report, the Commentaries play an important role in helping to identify customary international law by recording the practice of States. However, the evolving nature of modern conflict presents daily challenges that require careful consideration of the application of the well-established corpus of international humanitarian law to novel situations. In this context, it is a challenge for guidance material like the Commentaries to keep pace with State practice. The operational focus of the Updated Commentary to the First Geneva Convention is a clear example of a commitment to this challenge and will ensure that the First Geneva Convention remains relevant in today’s world of increasingly complex armed conflicts.

If these studies are to remain accurate and relevant, however, it is vital that States, as the core subjects of international law, give public expression to their views and the legal reasons underpinning their actions in the space of armed conflict. This position was well-explained by Harold Koh in The Legal Adviser’s Duty to Explain, and it is one which I whole-heartedly endorse. In my view, the responsibility is particularly acute in relation to international humanitarian law, and is particularly relevant in relation to Henckaerts’ position that States should enforce the duty to respect enshrined in Common Article 1 as between themselves. Open and transparent discussion of the basis for taking (or not taking) certain action is critical not only to the ability of States to comply with the law, but to ensure other States do so.

There will always be disagreements about the content of the law, amongst States, and between States and organisations such as the ICRC. Common Article 1 is one such obligation where different views persist. While the obligation to respect international humanitarian law under Common Article 1 is clear, the extent of the obligation on States to ensure respect is less so. The ICRC, in its Updated Commentary, has expressed the view that the obligation to “ensure respect” obliges States to undertake positive steps to bring all parties to a conflict, including third parties, into compliance with the Geneva Conventions. The Commentary makes clear that States are not responsible for a failure of their efforts as long as they have done “everything reasonably in their power” to bring the violations to an end, or to prevent them occurring in the first place. But questions remain. What is “reasonably within a State’s power” in any given circumstance? What is the threshold of due diligence? What is the content of the positive obligation? Indeed, the Commentary itself notes that the precise content of this obligation is difficult to determine in the abstract.

The Updated Commentary provides some guidance; yet there are two examples provided by the Commentary that I suggest go beyond what is reasonably within a State’s power, and do not find support in State practice.

First, the Commentary highlights that the duty to ensure respect “is particularly strong in the case of a partner in a joint operation, even more so as this case is closely related to the negative duty neither to encourage nor to aid or assist in violations of the Conventions.” At its most basic level, this appears uncontroversial. However, such an interpretation does not recognise the fact that States engaged in a joint operation often differ in their interpretations of the relevant obligations. Implementing the obligation to ensure respect in relation to a partner State becomes impracticable in such a situation. In these cases, it is more appropriate to focus on the negative duty not to aid or assist in acts that one State believes are a contravention of its obligations, regardless of the views of the other State. This is a situation where sharing of State practice is essential, conducting what US State Department Legal Adviser Brian Egan has described as “legal diplomacy”.

Second, the Updated Commentary extends the positive obligation to ensure respect by non-State actors. The application of the obligation to ensure respect by non-State actors is not fully explored in the Commentary. However, the difficulty associated with ensuring respect by non-State actors is clear, and has been acknowledged as a core issue underlying current debates about compliance with international humanitarian law. Bearing these difficulties in mind, and in the absence of State practice in support, I do not consider this is an essential element of the obligation contained in Common Article 1.

There is no dispute that States should do everything in their power to ensure respect for the Conventions. Indeed, it is in the interest of all States who comply with the Conventions to encourage reciprocity, in order to benefit from the same protections they accord others. Australia stands hand-in-hand with the ICRC in its emphasis on the importance of encouraging parties to a conflict (through any means) to comply with the rules by which they are bound. One of the most effective ways this can be achieved is by demonstrating our own compliance with IHL and being transparent about the ways in which that is occurring. By openly engaging in debate about the content of these important obligations, States can not only shed light on their position on the relevant international law, but encourage compliance by others.

I appreciate the opportunity to contribute to this multi-blog series and have no doubt the Updated Commentary will prove as invaluable to international legal practitioners, academics and jurists as the original Pictet Commentaries of 1952.

John Reid is the Head of the Office of International Law at the Commonwealth Attorney-General’s Department.