Common Article 1: A Lynchpin in the System to Ensure Respect for International Humanitarian Law – Jean-Marie Henckaerts

In March, the ICRC released an updated Commentary on the First Geneva Convention of 1949.  This is the first instalment of six new commentaries aimed at bringing the interpretation of the Geneva Conventions and their Additional Protocols of 1977 to the 21st century.  In this blog mini-series co-hosted with the ICRC, three authors will share their perspective on some of the fundamental obligations enshrined in the Geneva Conventions and the evolution of the application and interpretation of these important provisions. 

Jean-Marie Henckaerts, ICRC’s Head of the Commentaries Update project, kicks off the mini-series with an examination of why the commitment by States to respect and ensure respect for IHL is more than just a “loose pledge”, and what measures States can take to fulfil this obligation.

In the second article, 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. Professor Rob McLaughlin, Co-Director of the ANU Centre for Military and Security Law, then concludes the blog mini-series with an article that reflects on common article 2 and the important question of when IHL must be applied.

 

Introduction

Every day, in far too many places, the International Committee of the Red Cross (“the ICRC”) witnesses (and endeavors to mitigate) suffering and hardship resulting from armed conflicts, and from violations of the law that regulates armed conflict: international humanitarian law (“IHL”). For some, the alarming number of violations signals that IHL is “in crisis”, or has become obsolete. In the ICRC’s view, the issue lies not with the rules of IHL, but with the lack of compliance with these rules by both State and non-state actors.

Compliance with the law requires first and foremost an accurate understanding of it. This self-evident truth is at the heart of the ICRC’s mandate: for the last 150 years, the ICRC has laboured to promote the faithful application of IHL, as well as to ensure that it is understood, disseminated, and developed. In the context of this work, the ICRC published guiding “Commentaries” on the four Geneva Conventions (“the Pictet Commentaries”), as well as on their Additional Protocols, with the aim of clarifying the scope and content of IHL treaty rules. These commentaries needed to be updated to reflect the 60 years of practice that has accumulated since they were first published. On this premise, in 2011 we embarked on a multi-year project aimed at capturing contemporary operational and legal developments so as to provide an up-to-date interpretive guide for use by IHL lawyers, military officials, civilians, judges, and academics. In March 2016, an important milestone was achieved with the release of the updated Commentary on the First Geneva Convention.

This post focuses on the meaning of the first Article of the Geneva Conventions, which is common to all four Conventions (and restated in the first Additional Protocol) and central to effective compliance with IHL.

Background

Common Article 1 provides that States “undertake to respect and ensure respect” for the Geneva Conventions. The first meaning of the clause, to respect and ensure respect by a State’s own armed forces and agents, is self-evident and beyond question. It is a translation, under IHL, of the famous Latin adage “pacta sunt servanda” which means that treaties to which a State is a party have to be complied with: Vienna Convention on the Law of Treaties, Article 26.

However, the Geneva Conventions go a step further: they also require States to ensure respect by each other, even when they themselves are not a party. This is one of the specificities of the Geneva Conventions: they are based on a system of collective responsibility to ensure respect for IHL by every one, everywhere.

Interpreting Common Article 1

The interests protected by the Conventions are of such fundamental importance that every State Party has a legal interest in their observance. The proper functioning of the system of protection provided by the Conventions demands that States Parties not only apply the provisions themselves, but also do everything reasonably in their power to ensure that the provisions are respected universally. The Conventions thus create obligations erga omnes partes, i.e. obligations towards all of the other High Contracting Parties (see the International Court of Justice (“ICJ”) opinion in the Wall case; the International Criminal Tribunal for the former Yugoslavia’s Kupreškić Trial Judgment; Pictet’s Commentary, p. 25; and the ICRC’s 2016 Commentary on Article 1, [119]). Modern IHL is no longer a series of obligations contracted by States vis-à-vis each other and based on reciprocity, but obligations contracted in front of the international community. This is also evidenced by the fact that the Conventions abolished the si omnes clause, which had been part of IHL treaties until then, as well as by the prohibition of reprisals which had been a hallmark of inter-State law enforcement until then.

The rules in the Conventions thus have a special normative value and generally embody norms from which no derogation is permitted. Related to this, the Conventions limit States’ power to denounce the treaties during an armed conflict (Art. 63(3) of the First Geneva Convention; Art. 62(3) of the Second Geneva Convention; Art. 142(3) of the Third Geneva Convention; Art. 158(3) of the Fourth Geneva Convention), prohibit any derogation from the Conventions by special agreements (common Article 6) and declare that persons protected by the Conventions may in no circumstances renounce the rights secured to them by the Conventions (common Article 7).

This meaning of common Article 1 was recognized at least as early as the 1952 Pictet Commentary, which stated that, if a State is failing to fulfill its obligations under the Conventions, the other States (neutral, allied or enemy) must endeavor to bring it back to an attitude of respect for the Conventions (Commentary GC I, 1952, p. 26). This interpretation has been reaffirmed on various occasions by States (see e.g. here, here, here and here) and by the ICJ in Nicaragua v. United States of America (“the Nicaragua case”), the Wall case, and Democratic Republic of the Congo v. Uganda. It has also been the constant interpretation by the ICRC.

That this is a legal obligation and not a policy recommendation follows in my opinion from the fact that it is included in a legal text – Article 1 itself.

The obligation to ensure respect by others

The obligation to ensure respect by others has two components:

1. A negative obligation

This aspect was identified by the ICJ in the Nicaragua case where the ICJ held that States are:

“under an obligation not to encourage persons or groups engaged in [a non-international armed] conflict … to act in violation of the provisions of Article 3 common to the four 1949 Geneva Conventions.”

The case dealt with the issuance of a manual to a non-State armed group which contained rules that violated common Article 3. The ICJ considered that “encouragement was offered to persons in circumstances where the commission of such acts [violations of common Article 3] was likely or foreseeable”.

The ICRC’s updated Commentary builds on this case and in light of Article 16 of the Draft Articles on State Responsibility considers that States must abstain from encouraging, aiding or assisting parties to a conflict to commit violations of IHL.

The Commentary goes on to consider at [161] that (emphasis added):

“In the event of multinational operations, common Article 1 thus requires High Contracting Parties to opt out of a specific operation if there is an expectation, based on facts or knowledge of past patterns, that it may violate the Conventions, as this would constitute aiding or assisting violations.”

The standard of “an expectation, based on facts or knowledge of past patterns” is built on ideas as expressed in the Nicaragua case. The Commentary sets out general guidelines, while the concrete modalities of their application has to be decided, based on the facts, by States and parties to the conflict. A commentary cannot do so in the abstract. In case of doubt, legal advisers should err on the side of caution.

2. A positive obligation

The High Contracting Parties also have positive obligations under common Article 1, which means they must take proactive steps to bring violations of the Conventions to an end and to bring an erring Party to a conflict back to an attitude of respect for the Conventions, in particular by using their influence on that Party (see also Rule 144 of the ICRC Customary International Humanitarian Law Study). This obligation is not limited to stopping ongoing violations but includes an obligation to prevent foreseeable violations.

States remain in principle free to choose between different possible measures, as long as those adopted are considered adequate to ensure respect. The commentary provides a list of examples of such measures: [181]. This list builds on earlier examples published by the ICRC.

The duty to ensure respect is to be carried out with due diligence. Its content therefore depends on the specific circumstances, including the gravity of the breach, the means reasonably available to the State, and the degree of influence it exercises over those responsible for the breach. It is an obligation of means; the High Contracting Parties are not responsible for a possible failure of their efforts as long as they have done everything reasonably in their power to bring the violations to an end.

The duty to ensure respect for the Geneva Conventions is particularly strong in the case of a partner in a joint operation. The fact, for example, that a High Contracting Party participates in the financing, equipping, arming or training of the armed forces of a Party to a conflict, or even plans, carries out and debriefs operations jointly with such forces, places it in a unique position to influence the behaviour of those forces, and thus to ensure respect for the Conventions.

Conclusion

There is a pressing need to encourage and generate better respect for IHL. States have clearly expressed such commitment by universally ratifying the Geneva Conventions, including common Article 1. Based on the last 60 years of application and interpretation of this provision, by States, international tribunals and United Nations organs, the ICRC has sought to clarify the scope and meaning of this important legal obligation. Application in good faith of common Article 1 will help to ensure that IHL fulfils its role: to preserve humanity in the midst of armed conflict.

Jean-Marie Henckaerts is the head of unit in charge of updating the ICRC Commentaries on the Geneva Conventions of 1949 and their Additional Protocols of 1977.